       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

ROSIE L. TILLOTSON,                          )
                                             )   No. 78939-2-I
                       Appellant,
                                             )   DIVISION ONE
              v.

UNIVERSITY OF WASHINGTON,                    )   UNPUBLISHED OPINION
                                             )
                        Respondent.          )   FILED: December 23, 2019


       SMITH, J.   —   In 2016, Dr. Jeffrey Houlton, a physician at the University of

Washington (UW), performed surgery on Rosie Tillotson to remove cancerous

lymph nodes from her neck. Tillotson experienced complications following the

surgery and later sued UW, alleging that Dr. Houlton was negligent and that UW

was vicariously liable for Dr. Houlton’s negligence. At trial, the jury heard

testimony from Tillotson’s sole expert, Dr. Barry Wenig. After Tillotson rested her

case, UW moved for judgment as a matter of law, arguing that Dr. Wenig failed to

identify any act or inaction by Dr. Houlton that fell below the standard of care.

The trial court agreed and entered judgment in UW’s favor.

       We hold that because Dr. Wenig’s testimony was sufficient for a

reasonable jury to find that Dr. Houlton breached the standard of care by failing

to stay “in bounds” when he performed surgery on Tillotson, the trial court erred

by granting judgment as a matter of law. Therefore, we reverse and remand for

further proceedings.
No. 78939-2-1/2

                                   BACKGROUND

       Tillotson was diagnosed with papillary thyroid cancer following a biopsy of

a lump that she first noticed on the back of her neck around Thanksgiving 2014.

In January 2015, Tillotson underwent a thyroidectomy, performed by Dr. Ryan

Stern, an otolaryngologist1 at St. Francis Hospital. After the procedure, Tillotson

was deemed “at relatively high risk of tumor recurrence.”

       In fall of 2015, Tillotson noticed a lump behind her left ear. Dr. Stern

performed a biopsy, which came back positive for cancer. Dr. Stern then

referred Tillotson to Dr. Houlton, a UW otolaryngologist, for surgery to remove

lymph nodes from the left side of Tillotson’s neck in a procedure known as a

“neck dissection.” Because Tillotson had previously undergone a thyroidectomy

in this area, the procedure also constituted a “revision.”

       Dr. Houlton performed the revision and neck dissection on February 5,

2016. After surgery, Tillotson developed facial paralysis. An otolaryngology

resident who examined Tillotson the morning after her surgery believed the

paralysis was likely due to a “stretch injury” from which Tillotson would recover

after several months. Dr. Houlton saw Tillotson later that day and discussed with

her “that this is a very rare complication after a neck dissection.” According to

Dr. Houlton’s notes from that visit, he considered it unlikely that Tillotson’s

symptoms were a result of a nerve injury but discussed the option of further

surgical exploration to confirm.


       1An otolaryngologist is “a specialist in otolaryngology,” which is “a branch
of medicine that deals with the ear, nose, and throat and their disorders and
diseases.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1599 (2002).
                                          2
No. 78939-2-113

       According to a later medical record, Dr. Houlton’s recommendation for

surgical exploration became “more direct” after there “was no recovery of

[Tillotson’s] facial nerve on subsequent exams and after further discussions.”

Thus, on February 8, 2016, Dr. Houlton, assisted by Dr. Amit Bhrany, a facial

nerve expert, performed a surgical examination of Tillotson. According to the

record from that procedure, the examination revealed that the main trunk of

Tillotson’s facial nerve had been transected.

       Dr. Houlton and Dr. Bhrany conducted a procedure to repair the nerve,

and Tillotson was discharged a few days later. Tillotson continued to experience

symptoms, including dryness in her left eye and drooping in her face. In May

2017, Tillotson sued UW, alleging that it was vicariously liable for negligent

medical care provided by Dr. Houlton.2

      A jury trial began on August 13, 2018. On August 15, the jury heard

testimony from Tillotson’s only expert, Dr. Barry Wenig. Dr. Wenig is an

otolaryngologist and a head and neck surgeon who, according to his testimony,

has performed “[a]nywhere between about 1,600 to about 2,000” neck

dissections, about two-thirds of which were lateral neck dissections like the one

at issue in this case. He operates on about 25 to 30 thyroid tumors on average

in a year, and of those, at least half are papillary thyroid cancer. He estimated

that he has conducted “probably around 10” revision surgeries for the removal of


      2 Tillotson’s complaint also named the UW Medical Center and the State
of Washington, and it included a claim for failure to obtain informed consent. The
UW Medical Center and the State were later dismissed, as was Tillotson’s
informed consent claim. Those dismissals are not at issue in this appeal.

                                         3
No. 78939-2-1/4

papillary thyroid carcinoma like the procedure performed by Dr. Houlton.

       Since completing a fellowship in 1985 at the Memorial Sloan Kettering

Cancer Center in New York, Dr. Wenig has been in academic practice, meaning

that he has “always worked for a university or a college of medicine regardless of

where [he] was.” He is currently employed by the University of Illinois in

Chicago, where his title is chairman of the Department of Otolaryngology-Head

and Neck Surgery. Dr. Wenig is board certified and is actively licensed to

practice medicine in Illinois, New York, and Michigan. He has served as an

expert witness “for quite some time.” Initially he was more commonly asked by

plaintiffs’ attorneys to review cases, but currently, “about half the requests that

[he] get[s] are for plaintiffs and about half are for defense.” He has testified in

trial a few times before, including in Washington in November 2015, when he

testified for the defense on behalf of the attorney representing UW in this case.

       Before asking Dr. Wenig to state his conclusions about Dr. Houlton’s

treatment, Tillotson’s counsel asked Dr. Wenig to make an assumption regarding

the appliäable standard of care:

       Q. I want to talk about your conclusions now, but before I do that, I
          want you to assume that in the state of Washington and I    --


          understand you’ve testified here in the recent past a head and
                                                                 --


          neck surgeon like Dr. Houlton had the duty to exercise the
          degree of skill, care, and learning expected of a reasonably
          prudent physician in the state of Washington acting in the same
          or similar circumstances as the care and treatment at issue
          here. With that understanding, Dr. Wenig, do you have an
          opinion as to whether Dr. Houlton met or fell below the standard
          of care in this case?

      A. Yes, I do.

Dr. Wenig then testified that in his opinion, Dr. Houlton fell below the standard of

                                          4
No. 78939-2-1/5

care for two reasons and that Dr. Houlton’s failures caused harm to Tillotson:

        Q. And what is [your] opinion?

       A. That Dr. Houlton fell below the standard of care in this particular
          matter.

       Q. Generally speaking, why is that?

       A. I think that there are two reasons. Number one is I think that he
          was operating out of bounds of what would normally be a lateral
          neck dissection for metastatic recurrent papillary thyroid cancer.
          And the second reason, I believe, is that he transected the facial
          nerve because he was removing tissue that he couldn’t identify.

       Q. And, Dr. Wenig, have you also come to a conclusion about
          whether or not these failures caused Ms. Tillotson harm?

       A. Yes.

       Q. And before I do that, I want you to assume that all of your
          conclusions must be held to a reasonable degree of medical
          probability. So we aren’t dealing with possibilities. Your
          conclusions must be more probably true than not true. Do you
          understand that?

       A. Yes, I do.

       Q. And with that understanding, did these failures cause Ms.
          Tillotson harm?

       A. Yes.

       Q. What harm was that?

       A. Her facial nerve was transected, resulting in paralysis of the
          face.

       Dr. Wenig then elaborated on his conclusion that Dr. Houlton had

operated “out of bounds.” Specifically, he explained that lymph nodes are

present in six recognized “levels” in the neck. He testified that level I is “right

under the jawbone and the chin.” Levels 2, 3, and 4 are the “jugular nodes,” level


                                           5
No. 78939-2-1/6

5 is “the area in the back of the neck.         .   .   behind the big muscle in the neck,

otherwise known as the sternocleidomastoid muscle,” and level 6 consists of ‘the

lymph nodes in and around the central portion of the neck,                .   .   .   in and around the

thyroid gland and trachea itself.” Dr. Wenig also explained that a surgeon uses

anatomical landmarks to know where he or she is during a neck dissection

procedure: ‘Well, by and large, neck structures are constant. So when someone

operates on their neck, you would try and find these constant structures that help

you identify where you are and potentially keep you out of trouble.” He explained

that one of those anatomical landmarks is the digastric muscle, which “begins

under the chin, and   .   .   .   extends backwards, up towards what we call the mastoid

tip, which is the bony protrusion behind the ear and below the ear.” Dr. Wenig

explained that the digastric muscle serves as the upper boundary of a lateral

neck dissection and that it sits between the facial nerve and the highest lymph

node in the chain that Dr. Houlton was planning to dissect. To that end, Dr.

Wenig explained that when he teaches his students about a selective neck

dissection of lymph nodes like the one performed by Dr. Houlton, he does not

include a conversation about the main trunk of the facial nerve “[b]ecause it’s not

in the field of the surgery, the anticipated surgery. So one wouldn’t necessarily

discuss it, because you’re not considering it to be part of the surgery or at risk

during the surgery.” Nevertheless, and although Dr. Wenig did not know how or

when it happened, the facial nerve was transected during Tillotson’s surgery.

       Dr. Wenig also discussed a pathology report for the surgery that Dr.

Houlton performed. He explained that the pathology report helped to understand


                                                    6
No. 78939-2-1/7

where Dr. Houlton was working during the surgery because it refers to

“[d]esignated tissue adjacent to mastoid excision.” He explained that the

mastoid, which is the bony structure from which the facial nerve exits, is “above

and out of the field of what would be considered a lateral neck dissection” but

that the pathology report indicated that tissue was removed from that area.

       Finally, Dr. Wenig testified that although one particular branch of the facial

nerve may come into play in a neck dissection like the one Dr. Houlton

performed, transecting the main trunk of the facial nerve is not a known

complication of that kind of neck dissection surgery. Additionally, while

acknowledging that Dr. Houlton encountered scar tissue during Tillotson’s

procedure, Dr. Wenig testified that he had never heard of scar tissue causing the

main trunk of the facial nerve to be anatomically out of place.

       On cross-examination, Dr. Wenig gave the following testimony:

       Q. Now, Doctor, you offered some standard of care opinions in this
          case, and I want to follow up on those. Your opinion in this case
          is really that the injury itself indicates that Dr. Houlton violated
          the standard of care, correct?

      A. Yes.

       Q. You can’t say what specific action or inaction by Dr. Houlton
          violated the standard of care, right?

      A. Yes.

       Q. So, in fact, rather than relying on a specific action or inaction,
          it’s your opinion only that the injury itself indicates that he
          violated the standard of care, true?

      A. True.

      Q. And you don’t believe there are any other standard of care
         violations other than what you just said, right?

                                          7
No. 78939-2-1/8


       A. True.

       Q. And it’s true that you can’t articulate what was done in this case
          that was below the standard of care other than the fact that you
          think it was a violation because there was an injury; isn’t that
          right?

       A. Yeah, there was an injury when a nerve that was not part of the
          surgery was injured.

       On redirect, Dr. Wenig was asked why, apart from the fact that it occurred,

the transection that cut the facial nerve supported his opinion that Dr. Houlton fell

below the standard of care. He responded:

       Because in the course of a lateral neck dissection, the facial nerve
       does not come into play. So the fact that the nerve is cut means
       that you’re in an area that you should not need to be in for the
       operation that was planned. So, basically, you’re out of the
       boundaries of what you would expect to be a lateral neck
       dissection.

Dr. Wenig also testified that in addition to being too far superior to (i.e., farther

from the feet than) the levels in which he planned to operate, “[bjy cutting the

facial nerve, [Dr. Houlton] was at a deeper plane than he needed to be at.”

       After Dr. Wenig testified, the jury heard testimony from a number of lay

witnesses, including Tillotson and her husband. After Tillotson rested her case,

UW mo.ved for judgment as a matter of law. It argued that the court should grant

its motion for two reasons: First, because Dr. Wenig “provided no testimony

establishing that he was sufficiently familiar with the standard of care for

otolaryngologists practicing in the state of Washington or that such standard is a

national standard,” and second, because Dr. Wenig “could not identify any act or

inaction by Dr. Houlton that fell below the standard of care or explain what the


                                           8
No. 78939-2-1/9

standard of care required Dr. Houlton to do that he did not do.”

       The trial court concluded that Dr. Wenig’s testimony was sufficient for a

jury to find that he was familiar with the standard ofcare in Washington. But it

agreed with UW that Dr. Wenig “did not testify what a reasonable doctor would or

would not have done” and thus granted UW’s motion for judgment as a matter of

law. Tillotson appeals.3

                                    DISCUSSION

       Tillotson argues that the trial court erred by granting UW’s motion for

judgment as a matter of law. We agree.

                      Standard of Review and Legal Standard

       This court reviews de novo a trial court’s decision on a motion for

judgment as a matter of law. H.B.H. v. State, 197 Wn. App. 77, 85, 387 P.3d

1093 (2016), aff’d, 192 Wn.2d 154, 429 P.3d 484 (2018). To this end, and as an

initial matter, the parties disagree as to whether the standard for judgment as a

matter of law differs from the standard for summary judgment. Tillotson points

out that CR 56, governing summary judgment, requires the nonmoving party to

set forth “specific facts” to defeat summary judgment. ~ CR 56(e). Tillotson


        ~ Before Tillotson appealed, she moved for reconsideration, which the trial
court denied. Although Tillotson’s notice of appeal designated both the trial
court’s judgment and its order denying reconsideration, Tillotson did not assign
error to the trial court’s denial of reconsideration and did not provide argument or
citations to authority with regard to that denial. Therefore, we consider only the
trial court’s entry of judgment as a matter of law. RAP 10.3(a)(4), (6); see also
Escude ex rel. Escude v. King County Pub. Hos~. Dist. No.2, 117 Wn. App. 183,
190 n.4, 69 P.3d 895 (2003) (“It is well settled that a party’s failure to assign error
to or provide argument and citation to authority in support of an assignment of
error, as required under RAP 10.3, precludes appellate consideration of an
alleged error.”).
                                           9
 No. 78939-2-1/10

contends that because CR 50, governing judgment as a matter of law, contains

no “specific facts” requirement, the standard for judgment as a matter of law is

more favorable to the nonmoving party than the standard for summary judgment.

Meanwhile, UW contends that “Washington courts consistently equate the two”

standards.

       We disagree with both contentions. On the one hand, UW’s suggestion

that the two standards are equivalent is incorrect. CR 50 and CR56 address two

distinct circumstances and, by their express terms, set forth two distinct

standards. Specifically, under CR 50, judgment as a matter of law is appropriate

on any claim that is dependent on an issue with respect to which the nonmoving

party has been fully heard during a jury trial if there is “no legally sufficient

evidentiary basis for a reasonable jury to find.   .   .   for [the nonmoving party] with

respect to that issue.” (Emphasis added.) In other words, under CR 50, the trial

court weighs the evidence to determine whether a reasonable jury could find in

favor of the nonmoving party. In doing so, the trial court necessarily must

consider all evidence as presented to the jury, including not only each witness’s

direct testimony but also any damaging cross-examination testimony.

       By contrast, under CR 56, summary judgment is appropriate when “the

pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as a matter of law.”

(Emphasis added.) Put another way, under CR 56, the court asks only whether

the nonmoving party has established that there are issues of material fact that


                                           10
No. 78939-2-Ill I

the jury must decide. And because summary judgment arises before the

nonmoving party’s evidence is presented to a jury and tested by cross-

examination, the court necessarily cannot make the same inquiry as it does

under CR 50, i.e., whether the evidence as presented to the jury is sufficient to

support a finding in favor of the nonmoving party. Therefore, and although cases

applying CR 56 may be instructive in the CR 50 context, we disagree with UW’s

suggestion that the two standards are equivalent.

       On the other hand, Tillotson makes too much of CR 56’s reference to

‘specific facts” in arguing that CR 56 is less favorable to the nonmoving party

than CR 50. The reference to “specific facts” is found in CR 56(e), which simply

explains that the nonmoving party cannot defeat summary judgment by relying

on conclusory allegations and denials, such as those in a pleading, but “must set

forth specific facts showing that there is a genuine issue for trial.” The absence

of the words “specific facts” from CR 50 says nothing about any equivalency, or

lack thereof, between CR 50 and CR 56.

       In short, CR 56 and CR 50 set forth different standards because they

address two distinct circumstances. Here, our review is of an order granting

judgment as a matter of law. Therefore, we apply the standard set forth in CR

50.

       Under CR 50, “[i]f.   .   .   a party has been fully heard with respect to an issue

and there is no legally sufficient evidentiary basis for a reasonable jury to find        .   .




for that party with respect to that issue,” then the court may grant judgment as a

matter of law against that party “on any claim        .   .   .   that cannot under the


                                               11
No. 78939-2-1/12

controlling law be maintained without a favorable finding on that issue.”

CR 50(a)(1).

       “A motion for judgment as a matter of law admits the truth of the

opponent’s evidence and all reasonable inferences that can be drawn from it.”

Tapio lnv. Co. I v. State, 196 Wn. App. 528, 538, 384 P.3d 600 (2016), review

denied, 187 Wn.2d 1024 (2017). “‘Granting a motion for judgment as a matter of

law is appropriate when, viewing the evidence most favorable to the nonmoving

party, the court can say, as a matter of law, there is no substantial evidence or

reasonable inference to sustain a verdict for the nonmoving party.” Tapio mv.

Co., 196 Wn. App. at 538 (quoting Sing v. John L. Scott, Inc., 134 Wn.2d 24, 29,

948 P.2d 816 (1997)). “Substantial evidence is said to exist if it is sufficient to

persuade a fair-minded, rational person of the truth of the declared premise.”

Guiiosa v. Wal-Mart Stores, Inc., 144 Wn.2d 907, 915, 32 P.3d 250 (2001)

(quoting Brown v. Superior Underwriters, 30 Wn. App. 303, 306, 632 P.2d 887

(1980)). As further discussed below, Dr. Wenig’s testimony, when viewed in the

light most favorable to Tillotson, was sufficient to sustain a verdict in Tillotson’s

favor. Therefore, the trial court erred by granting judgment as a matter of law.

                                       Analysis

       To establish a claim of medical negligence based on failure to follow the

accepted standard of care, a plaintiff must establish the following elements:

               (1) The health care provider failed to exercise that degree of
       care, skill, and learning expected of a reasonably prudent health
       care provider at that time in the profession or class to which he or
       she belongs, in the state of Washington, acting in the same or
       similar circumstances; [and]
               (2) Such failure was a proximate cause of the injury

                                          12
No. 78939-2-1/13

       complained of.

RCW 7.70.040. “The applicable standard of care and proximate causation

generally must be established by expert testimony.” Grove v. PeaceHealth St.

Joseph Hosp., 182 Wn.2d 136, 144, 341 P.3d 261 (2014). “[Tjhis requires an

expert to say what a reasonable doctor would or would not have done, that the

[defendants] failed to act in that manner, and that this failure caused [the]

injuries.” Reyes v. Yakima Health Dist., 191 Wn.2d 79, 86, 419 P.3d 819 (2018)

(second and third alterations in original) (quoting Keck v. Collins, 184 Wn.2d 358,

371, 357 P.3d 1080 (2015)). “The expert may not merely allege that the

defendants were negligent and must instead establish the applicable standard

and how the defendant acted negligently by breaching that standard.” Reyes,

191 Wn.2d at 86-87. “Furthermore, the expert must link his or her conclusions to

a factual basis.” Reyes, 191 Wn.2d at 87.

       Here, for the following reasons, Dr. Wenig’s testimony and the reasonable

inferences therefrom were sufficient to sustain a verdict in Tillotson’s favor on her

medical negligence claim.

       First, Dr. Wenig’s testimony established what a reasonable doctor would

or would not have done. Specifically, Dr. Wenig explained which anatomical

landmarks marked the boundaries of the neck dissection procedure that Dr.

Houlton performed. He also explained that surgeons use these anatomical

landmarks to help “identify where you are and potentially keep you out of

trouble.” A reasonable inference from this testimony is that the applicable

standard of care requires the surgeon to identify the boundaries for the neck


                                         13
No. 78939-2-1/14

dissection procedure based on specific anatomical landmarks and not venture

outside of those boundaries.

        Second, Dr. Wenig testified as to how Dr. Houlton acted negligently by

breaching the standard of care. Specifically, Dr. Wenig testified that Dr. Houlton

breached the standard of care by operating “out of bounds,” i.e., outside of the

boundaries demarcated by the relevant anatomical landmarks—and, specifically,

the digastric muscle.

       Third, Dr. Wenig’s conclusion was linked to a factual basis. Specifically,

Dr. Wenig’s testimony was supported by medical records reflecting that Dr.

Houlton discovered, upon surgical exploration, that the main trunk of Tillotson’s

facial nerve had been transected. In other words, Dr. Wenig’s conclusion—far

from being speculative as UW contends—was linked to the fact, established by

UW’s own medical records, that Tillotson’s facial nerve was transected. It was

also supported by the pathology report indicating that Dr. Houlton had removed

tissue from an area “out of the field of what would be considered a lateral neck

dissection.”

       Finally, Dr. Wenig testified, as required under RCW 7.70.040, that Dr.

Houlton’s negligent transection of Tillotson’s facial nerve was the proximate

cause of Tillotson’s injuries, i.e., paralysis of the face.

       In sum, Dr. Wenig’s testimony provided facts that, if believed, would allow

a reasonable jury to find in favor of Tillotson regarding each element of proof

required by RCW 7.70.040. Therefore, the trial court erred by entering judgment

as a matter of law. Schmidt v. Cooc~an, 162 Wn.2d 488, 493, 173 P.3d 273


                                           14
No. 78939-2-1115

(2007) (“Where the evidence produced by the nonmoving party produces facts

that would allow a reasonable person to find for that party, judgment as a matter

of law is inappropriate.”);   ~ Keck, 184 Wn.2d at 371-72 (holding, in summary
judgment context, that expert’s declaration stating that defendant surgeons

“performed multiple operations without really addressing the problem of non

union and infection within the standard of care” was sufficient to establish

genuine issue of material fact).

       UW relies primarily on Reyes, the case on which the trial court also relied,

to argue that judgment as a matter of law was proper here. But Reyes is readily

distinguishable from this case. There, Judith Reyes sued Yakima Health District

(YHD) after her husband died following treatment at YHD. Reyes, 191 Wn.2d at

83. She alleged that YHD was negligent because it failed to diagnose her

husband’s liver disease and instead treated him for tuberculosis. Reyes, 191

Wn.2d at 88. In support of her claims, Reyes obtained an affidavit from Dr. Rosa

Martinez, who stated that Reyes’ husband “presented to [YHD]     .   .   .   with clinical

symptoms of liver failure that should have been easily diagnosed by observation

of the patient.” Reyes, 191 Wn.2d at 88.

       In upholding the trial court’s summary dismissal of Reyes’ claims, our

Supreme Court described the case as a “close call” but held that Dr. Martinez’s

affidavit failed to establish a genuine issue of material fact. Reyes, 191 Wn.2d at

86. It explained that although “misdiagnosis may subject a physician to a

negligence action ‘where such misdiagnosis breaches the standard of care,” Dr.

Martinez’s affidavit contained “no indication of what a reasonable physician


                                          15
No. 78939-2-1/16

should have done other than diagnose liver failure by observation of the patient.”

Reyes, 191 Wn.2d at 88-89 (quoting Backlund v. Univ. of Wash., 137 Wn.2d 651,

661, 975 P.2d 950 (1999)). But here, as discussed, Dr. Wenig’s testimony, when

viewed in the light most favorable to Tillotson, does indicate what a reasonable

physician should have done. Specifically, Dr. Wenig’s testimony indicates that a

reasonable physician would have identified the relevant anatomical landmarks

and would have stayed within those landmarks. Thus, Reyes is not persuasive

here.

        UW next argues that Dr. Wenig’s testimony was “entirely circular” and

amounts to “a conclusory assertion that Dr. Houlton breached the standard of

care based on nothing more than the fact of injury itself.” UW is correct that a

medical negligence claim generally cannot be premised solely on the fact of the

injury itself. See Watson v. Hockett, 107 Wn.2d 158, 161, 727 P.2d 669 (1986)

(“[A] doctor will not normally be held liable   .   .   .   simply because the patient

suffered a bad result.”). Rather, the plaintiff must produce expert testimony

“showing what the applicable standard of care was and how the defendant

violated it.” Reyes, 191 Wn.2d at 89. But Dr. Wenig did not premise his opinion

solely on the fact that Tillotson experienced facial paralysis following her neck

dissection. Rather, Dr. Wenig explained what the applicable standard of care

was, i.e., that it required Dr. Houlton to identify the boundaries for the procedure

and to stay within them. Dr. Wenig further opined that Dr. Houlton violated this

standard by operating out of bounds. Therefore, Dr. Wenig’s testimony was not

circular as UW contends.


                                          16
No. 78939-2-1/17

       To this end, UW also points out that during Dr. Wenig’s cross-

examination, he agreed with UW’s counsel that “the injuty itself indicates that Dr.

Houlton violated the standard of care” and he could not “say what specific action

or inaction by Dr. Houlton violated the standard of care.” (Emphasis added.) But

this testimony cannot be viewed in a vacuum. On redirect, when Dr. Wenig was

able to elaborate, he explained that “the fact that the nerve is cut means that

you’re in an area that you should not need to be in.   .   .   you’re out of the

boundaries of what you would expect to be a lateral neck dissection.” (Emphasis

added.) Dr. Wenig also had testified on direct that the nerve transection

“result[ed] in paralysis of the face.” In short, and despite UW’s success in getting

Dr. Wenig to concede on cross-examination that he was equating injury with

breach, his testimony, taken as a whole, did not. Rather, when Dr. Wenig’s

testimony is viewed as a whole and in the light most favorable to Tillotson, a

reasonable juror could have concluded that the injury at issue was not the

transection itself, but rather facial paralysis, which in turn was caused by Dr.

Houlton’s operating out of bounds, as evidenced by the fact that Tillotson’s facial

nerve was transected. Therefore, UW’s reliance on Dr. Wenig’s cross-

examination testimony is misplaced.

       UW next points out that Dr. Wenig also conceded on cross-examination

that Dr. Houlton reasonably believed that he was not out of bounds. Specifically,

Dr. Wenig testified as follows on cross-examination:

       Q. And we talked about this a little bit before, but you understand
          from reading Dr. Houlton’s deposition that he used the
          landmarks of the sternocleidomastoid, the mastoid tip and the
          digastric muscle when he performed this procedure, true?

                                         17
No. 78939-2-1/18


      A. Yes.

      Q. And those were reasonable landmarks to use during this
         procedure, right?

      A. Yes.

      Q. And you agree that in the lateral neck dissection and revision,
         the use of the digastric muscle as a landmark typically prevents
         injury of the facial nerve during surgery, true?

      A. Typically, yes.

      Q. All right. And you understood from Dr. Houlton’s testimony that
         he believed he was staying on the plane of the digastric muscle
         as he was dissecting, correct?

      A. That’s what he said, yes.

      Q. And if he did that, you would agree that that would be
         reasonable for him to do, right?

      A. If he did that, yes.

      Q. And you would agree that during this surgery, there was no
         reason for Dr. Houlton to think that he had transected the facial
         nerve, correct?

      A. Correct.

      Q. And would you agree that Dr. Houlton believed he was on a
         different plane than the plane that the facial neive ran through
         during the dissection process, correct?

      A. Yes.

      Q. And it was reasonable for him to believe that he was on a
         different plane during the dissection, correct?

      A. Yes.

(Emphasis added.)

      UW argues that this testimony amounted to an “affirm[ance] that Dr.


                                       18
 No. 78939-2-1/19

Houlton believed he was on a different plane than that of the facial nerve.     .   .   and

that there was no reason for him to believe that he had transected the facial

nerve.” But as discussed, Dr. Wenig’s cross-examination cannot be viewed in a

vacuum. Also as discussed, Dr. Wenig’s testimony was sufficient for a jury to

find that Dr. Houlton breached the standard of care merely by operating out of

bounds. If the jury made such a finding, whether or not Dr. Houlton reasonably

believed he was in bounds would be irrelevant. Therefore, UW’s reliance on Dr.

Wenig’s cross-examination is again misplaced.

       UW also observes that this case is not a res ipsa loquitur case.4 It points

out that although Tillotson indicated in her complaint that she intended to rely on

res ipsa loquitur, she later acceded to UW’s motion in limine requesting that the

court decline to give a res ipsa loquitur jury instruction. But the fact that this case

is not a res ipsa loquitur case is inapposite because a jury may, even in the

absence of a res ipsa loquitur instruction, consider circumstantial evidence in

determining negligence and causation. See Ripley v. Lanzer, 152 Wn. App. 296,

307, 215 P.3d 1020 (2009) (“Negligence and causation, like other facts, may of

course be proved by circumstantial evidence.” “A res ipsa loquitur case is


       ~ “[R]es ipsa loquitur is a rule of evidence that allows an inference of
negligence from circumstantial evidence to prove a defendant’s breach of duty
where (1) the plaintiff is not in a position to explain the mechanism of injury, and
(2) the defendant has control over the instrumentality and is in a superior position
to control and to explain the cause of the injury.” Robison v. Cascade
Hardwoods, Inc., 117 Wn. App. 552, 563, 72 P.3d 244 (2003). “The practical
effect of the doctrine of res ipsa loquitur is to rely on circumstantial evidence to
permit a presumption or inference of negligence and place upon the defendant
the burden of coming forward with evidence rebutting or overcoming the
presumption.” A.C. ex rel. Cooper v. Bellinciham Sch. Dist., 125 Wn. App. 511,
516-17, 105 P.3d 400 (2004).
                                          19
No. 78939-2-1/20

ordinarily merely one kind of case of circumstantial evidence, in which the jury

may reasonably infer both negligence and causation from the mere occurrence of

the event and the defendant’s relation to it.” (emphasis added) (footnote omitted)

(quoting Metro. Mortq. & Sec. Co. v. Wash. Water Power, 37 Wn. App. 241, 243,

679 P.2d 943 (1984))). And here, the pathology report and the fact that

Tillotson’s facial nerve was transected were circumstantial evidence of Dr.

Houlton’s breach under Dr. Wenig’s characterization of the standard of care.

Therefore, the fact that this case is not a res ipsa loquitur case does not support

UW’s arguments in favor of affirming judgment as a matter of law.

       UW next renews its argument that Dr. Wenig failed to establish that he

was familiar with the standard of care in Washington or that the standard is a

national one. Thus, UW argues, “Tillotson had no expert testimony establishing

the standard of care of a physician ‘in the state of Washington, acting in the

same or similar circumstances’ as was Dr. Houlton in performing a revision neck

dissection.” UW contends that this amounts to a “failure to provide the jury with

definitive expert testimony concerning the standard of care” and that this failure

“invited the jury to speculate.” It contends further that this alleged failure serves

as an alternate basis for affirming the trial court’s entry of judgment as a matter of

law. See Pasado’s Safe Haven v. State, 162 Wn. App. 746, 760, 259 P.3d 280

(2011) (“[W]e may properly affirm a trial court judgment on any basis established

by the pleadings and supported by the record.”).

       But Dr. Wenig’s testimony was sufficient for a reasonable juror to make a

nonspeculative finding as to the standard of care required of a physician in


                                          20
No. 78939-2-1121

Washington. Specifically, Tillotson’s counsel asked Dr. Wenig to assume that Dr.

Houlton “had the duty to exercise the degree of skill, care, and learning expected

of a reasonably prudent physician in the state of Washington acting in the same

or similar circumstances” as Dr. Houlton. (Emphasis added.) He then asked Dr.

Wenig, “With that understanding,    .   .   .   do you have an opinion as to whether Dr.

Houlton met or fell below the standard of care in this case?” (Emphasis added.)

Dr. Wenig responded, “Yes, I do.” He then opined that Dr. Houlton fell below the

standard of care for two reasons:

       Number one is I think that he was operating out of bounds of what
       would normally be a lateral neck dissection for metastatic recurrent
       papillary thyroid cancer. And the second reason, I believe, is that
       he transected the facial nerve because he was removing tissue that
       he couldn’t identify.

       When viewed in the light most favorable to Tillotson, this testimony,

together with Dr. Wenig’s earlier testimony that he testified as an expert in

Washington in 2015, was sufficient to support a finding that Dr. Wenig was

familiar with the Washington standard of care.5 Otherwise, Dr. Wenig would not

have answered yes when asked if, with the understanding that Dr. Houlton “had

the duty to exercise the degree of skill        .   .    .   expected of a reasonably prudent

physician in the state of Washington acting in the same or similar

circumstances,” he had an opinion as to whether Dr. Houlton met the standard.

(Emphasis added.) Dr. Wenig’s testimony was also sufficient, when viewed in

the light most favorable to Tillotson, to support a finding that the aforementioned



      ~ For this reason, we do not address Tillotson’s argument that Dr. Wenig
was not required to testify as to a Washington-specific standard of care.
                                                    21
No. 78939-2-1/22

standard of care required Dr. Houlton not to operate “out of bounds” or remove

tissue he could not identify.

       UW primarily relies on Boyer v. Morimoto,          Wn. App. 2d   ~,   449 P.3d

285 (2019), Dricicis v. Howlett, 193 Wn. App. 875, 371 P.3d 61(2016), and

Winkler v. Giddings, 146 Wn. App. 387, 190 P.3d 117 (2008), to support its

argument that Dr. Wenig’s testimony was insufficient to establish his familiarity

with the standard of care. But in each of those medical negligence cases, the

defendant doctor challenged the plaintiff’s expert’s testimony on admissibility

grounds, before the expert testified. See Boyer, 449 P.3d at 289 (defendant

challenged expert’s qualifications at summary judgment); Driciqs, 193 Wn. App.

887 (defendant moved in limine to preclude plaintiff’s expert’s testimony as

lacking proper foundation); Winkler, 146 Wn. App. at 392 (trial court excluded

plaintiff’s expert’s testimony after making a preliminary finding that the expert was

not familiar with the Washington standard of care). Here, by contrast, UW’s

argument is not that Dr. Wenig’s testimony was inadmissible, but rather that it

was insufficient to support a finding as to what the standard of care required of

Dr. Houlton.6 Therefore, UW’s reliance on Boyer, Driqqs, and Winkler is


       6 At oral argument, UW argued that “it is a particularly necessary function
that you establish what [the] standard is, and if the expert has no familiarity with
that, then you’ve failed to establish an element of the case.” (Emphasis added.)
In other words, UW suggested at oral argument that its challenge to Dr. Wenig’s
testimony goes not just to its sufficiency, but also to its admissibility—specifically,
whether Dr. Wenig was qualified to testify as to the standard of care in
Washington. See ER 702 (expert witness must be qualified); ~ ~ ER 104(a)
(Witness qualification is a preliminary question to be determined by the trial
court.). But UW did not challenge Dr. Wenig’s qualifications below. Indeed, in its
reply in support of its motions in limine, UW stated that it “does not challenge the
admissibility of Dr. Wenig’s testimony on the basis that he is not qualified under
                                          22
No. 78939-2-U23

misplaced.

       We reverse and remand for further proceedings.




WE CONCUR:




ER 702.” UW also did not make a timely objection to Dr. Wenig’s testimony on
foundational grounds so as to allow the trial court to create a record on the issue
of whether Dr. Wenig was qualified. Therefore, UW waived any challenge to the
admissibility of Dr. Wenig’s testimony. ~ ER 103 (providing that all objections
must be timely and specific); see also State v. Stoddard, 192 Wn. App. 222, 227,
366 P.3d 474 (2016) (observing that timely objections serve to address several
concerns, including “facilitat[ingj appellate review by ensuring that a complete
record of the issues will be available, and prevent[ing] adversarial unfairness by
ensuring that the prevailing party is not deprived of victory by claimed errors that
he or she had no opportunity to address”).
                                         23
