Buchanan v. Robertson
DO NOT CITE. SEE RAP 10.4(h).
Court of Appeals Division I
State of Washington
Opinion Information Sheet
Docket Number: 41116-1-I
Title of Case: Ronald Buchanan & Kimberlee Buchanan, Respondents
v.
Matthew S. Robertson & Jane Doe Robertson, Apps
File Date: 02/01/1999
SOURCE OF APPEAL
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Appeal from Superior Court of San Juan County
Docket No: 95-2-05034-5
Judgment or order under review
Date filed: 05/29/1997
Judge signing: Hon. Alan R. Hancock
JUDGES
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Authored by C. Kenneth Grosse
Concurring: Faye C. Kennedy
Marlin J Appelwick
COUNSEL OF RECORD
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Counsel for Appellant(s)
Richard B. Johnson
1604 Hewitt Ave Ste 301
Everett, WA 98201-3536
William R. Hickman
Reed McClure
3600 Columbia Ctr
701 5th Ave
Seattle, WA 98104-7016
Counsel for Respondent(s)
Thomas P. Graham Iii
1510 Plaza 600 Bldg.
600 Stewart St.
Seattle, WA 98101
Charles K. Wiggins
Attorney At Law
241 Madison Ave N
Bainbridge Is, WA 98110
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
RONALD BUCHANAN and )
KIMBERLEE BUCHANAN, )
husband and wife, and the ) No. 41116-1-I
marital community composed )
thereof, ) DIVISION ONE
)
Respondents, )
)
v. )
)
MATTHEW S. ROBERTSON )
and JANE DOE ROBERTSON, )
husband and wife, and the ) UNPUBLISHED OPINION
marital community composed )
thereof, )
) FILED:
Appellants. )
)
GROSSE, J. -- Matthew Robertson appeals the trial court's order granting
Ronald Buchanan's motion for a new trial on the issue of damages in this
tort action arising out of a bicycle accident. Because the jury's damages
award was less than the uncontroverted special damages, its verdict was
contrary to the evidence. For the same reason, we may assume that the jury
failed to award damages for pain and suffering. We affirm.
FACTS
At about 7:30 p.m. on February 28, 1992, Ronald Buchanan was walking
with his wife and two friends along the right side of a road on Orcas
Island after dinner at a nearby restaurant, when they were hit from behind
by two bicyclists who had not seen them in the dark. One of the bicyclists
was Matthew Robertson. Buchanan, who was thrown into a nearby fence,
sustained a concussion and received facial fractures and cuts around his
eyes. He was seen by a doctor on Orcas Island and flown to Bellingham
where he was hospitalized overnight and released. In March 1992, he
underwent surgery to repair the fractured bones around his eye.
In February 1995, Buchanan and his wife filed this action against
Robertson in San Juan County Superior Court. On November 18, 1996,
Buchanan served a notice on Robertson pursuant to ER 904 listing medical
records and bills from 20 different medical providers. On December 5,
Robertson served his response indicating that he did not object to the
documents identified in the notice on grounds of authenticity but that he
reserved any objections as to whether they were inadmissible on other
grounds. Buchanan moved to strike Robertson's response on the ground that
it was not timely filed within the 14-day time period established in ER
904. Because it was filed 17 days after service of the notice, the trial
court granted the motion.
Trial began in March 1997. At trial, Buchanan relied chiefly on the
testimony of Dr. Robert Aigner to establish the severity of the facial and
head injuries he sustained in
the accident. Buchanan testified that he continued to suffer severe
headaches and facial numbness as a result of the accident. He testified
that between the time of the accident and his first visit to Dr. Aigner in
November 1992, he had experienced various "mental symptoms," including
being easily distracted and finding it hard to think if any external noise
was present. He also testified that he experienced some sight loss as a
result of the accident and that he continued to suffer from depression
traceable to the accident. Buchanan asked the jury to award $426,000 in
damages, including $27,000 for past medical expenses, $26,000 for future
medical expenses, and $373,000 for past and future pain and suffering.
Robertson, in turn, pointed to a Federal Aviation Administration (FAA)
medical history questionnaire submitted by Buchanan in April 1993 as part
of his application to renew his pilot's license. On that questionnaire,
Buchanan answered "no" to questions asking whether he had ever suffered
from headaches, vision trouble other than glasses, heart or vascular
trouble, neurological disorders, or depression and anxiety. Robertson
questioned the need for continued treatment in the face of this evidence.
At the conclusion of trial, the jury found Robertson negligent and awarded
Ronald and Kimberlee Buchanan $2,600 in damages each. Because it found
that they were 40 percent at fault, the award was reduced by that amount.
On April 10, 1997, Ronald Buchanan filed a motion for a new trial, arguing
that there was undisputed evidence that his medical bills totaled
$26,813.29.1 Robertson disagreed, contending that Buchanan had failed to
prove that the medical expenses he incurred were reasonable and necessary.
Buchanan countered that defense counsel had agreed at sidebar that he need
not present evidence of the reasonableness of his medical bills. His
attorney, Thomas Graham, filed a declaration to that effect. But the trial
court stated that it did not recall "any direct expression by {defense
counsel} of his agreement that reasonableness and necessity as to the
special damages was not an issue." Robertson's attorney agreed with the
trial court that he had made no such agreement.
On May 27, 1997, the trial court nevertheless granted Ronald Buchanan's
motion for a new trial.2 When the order granting a new trial was
presented, Robertson asked the trial court to reconsider its decision. The
trial court declined to do so based on its conclusion that Robertson had
waived the right to raise any issue related to the reasonableness or
necessity of the medical expenses by failing to file a timely response to
the ER 904 notice or otherwise raising the issue at trial. Robertson
appeals.
DISCUSSION
Robertson argues that the trial court abused its discretion in
granting a new trial3 because there was evidence from which the jury was
entitled to conclude that not all the medical expenses were related to the
accident. Buchanan, on the other hand, contends that the parties
stipulated at sidebar at the conclusion of Dr. Aigner's testimony that no
further testimony on the issue of reasonableness or necessity was required.
The trial court explained that it had raised the issue because, in its
view, there had been no testimony to that effect to that point. In
contrast to Mr. Graham's recollection of the ensuing discussion, however,
the trial court stated that it did not recall "any direct expression by
{counsel for Robertson} of his agreement that reasonableness and necessity
as to the special damages was not an issue." Given the court's
recollection that no such agreement was made, even though it had raised the
issue in an attempt to resolve this matter, we decline to rely on Mr.
Graham's declaration to resolve this matter and instead consider the
substance of the trial court's decision.
Notwithstanding that Robertson's attorney did not assert that the
reasonableness and necessity of special damages was not an issue, the trial
court nevertheless concluded that the reasonableness and necessity of the
medical expenses had been established "by necessary implication." It
reasoned it was "incumbent {on Robertson} to have raised a foundational
issue in connection with the ER 904 submittal as to reasonableness and
necessity in order to be able to argue that before the jury or at least
have raised some issue about it at the time of trial." It also declared
that, in its view, there was "a complete absence of any evidence to suggest
that these medical expenses and bills incurred by Mr. Buchanan were not
reasonable or were unnecessary."4 The trial court also concluded that
because the jury's award was so much lower than the $27,000 in special
damages it deemed undisputedly reasonable and necessary, the jury had made
no general damages award. Because there was both photographic evidence and
testimony about Buchanan's pain and suffering after the accident, the trial
court concluded that a new trial was also required on that basis.
First, the trial court erred in ruling that Robertson's failure to raise
the issue in response to Buchanan's ER 904 notice constituted a waiver of
any objection to the reasonableness or necessity of the medical expenses
Buchanan incurred. ER 904(d) expressly provides that ER 904 "does not
restrict argument or proof relating to the weight to be accorded the
evidence submitted, nor does it restrict the trier of fact's authority to
determine the weight of the evidence after hearing all of the evidence and
the arguments of opposing parties." The purpose of ER 904, in other words,
is simply to determine whether there is any objection as to the
admissibility of the documents to be offered into evidence themselves. The
failure to make a timely objection to such documents on foundational
grounds does not waive any arguments related to the weight to be accorded
the evidence they contain.
Second, in both his opening and closing arguments and in his cross
examination of Buchanan's witnesses, Robertson repeatedly raised the
question of whether all of the medical expenses incurred by Buchanan were
the result of injuries he sustained in the accident. For example,
Robertson questioned whether the accident had anything to do with the
depression from which Buchanan still suffers, pointing to the fact that he
did not bring it to the attention of any doctor until 16 months after the
accident occurred. That time lapse, he told the jury, should "raise a
substantial question in {its} mind, does this accident have anything to do
with that depression." Robertson also pointed to Buchanan's answers on the
FAA questionnaire in April 1993 that he had never suffered from headaches,
vision trouble other than glasses, or neurological disorders to question
the need for medical treatment both before and after that time. Thus, even
assuming Robertson waived any objection as to whether the medical expenses
were reasonable and necessary if the jury believed the symptoms were real
and related to injuries sustained at the time of the accident by not
objecting when the trial court raised the issue at sidebar, he did not
waive the argument that not all of the conditions for which Buchanan was
treated were related to those injuries.
But Robertson conceded that Buchanan's facial cuts and fractures were
caused by the bicycle collision. Even if the jury did not believe that all
the medical treatment and expenses were related to injuries Buchanan
received at the time of the accident, the fact remains that Robertson did
not question the medical expenses incurred in connection with the facial
cuts and fractures for which Buchanan was treated immediately after the
accident. The record reflects that the medical expenses for the first 48
hours alone added up to $3,620. Because the jury's award was lower even
than the amount of uncontested special damages, its verdict was contrary to
the evidence.5 Where the verdict is equal to or less than uncontroverted
special damages, moreover, a court may also assume that the jury failed to
award damages for pain and suffering.6 Because there was undisputed
evidence of Buchanan's pain and suffering in the days and weeks following
the accident, the jury's failure to award general damages also warranted a
new trial. For this reason, while we disagree with the trial court's
reasoning, we agree with its conclusion.
Affirmed.
WE CONCUR:
1CR 59(a) allows a trial court to vacate a verdict and grant a new trial
where it finds:
(5) Damages so excessive or inadequate as unmistakably to indicate that
the verdict must have been the result of passion or prejudice; {or}
. . . .
(7) That there is no evidence or reasonable inference from the evidence to
justify the verdict or the decision, or that it is contrary to law; {or}
. . . .
(9) That substantial justice has not been done.
2In its written order, the trial court stated its reasons as follows:
1. The $2600 total award of damages to the plaintiff Ronald Buchanan
was so much lower than the undisputed evidence presented at trial of
medical bills totaling $26,813.29 that it is unmistakable that the verdict
was the result of passion or prejudice.
2. The jury verdict was contrary to law because the jury did not
award general damages despite undisputed testimony as to plaintiff Ronald
Buchanan's pain and suffering and permanent disability and despite this
Court's Instruction Number 19 to the jury.
3. Substantial justice was not done. Each of the previously stated
reasons for granting of a new trial is sufficient on its own to grant a new
trial. Together the reasons clearly show that substantial justice was not
done by the jury verdict.
3Determination of the amount of damages is a matter within the province of
the jury, and courts are reluctant to interfere with a jury's damage award
when it is made. Palmer v. Jensen, 132 Wn.2d 193, 197, 937 P.2d 597
(1997). A trial court's decision denying a motion for a new trial on the
ground of inadequate damages will be reversed only for abuse of the court's
discretion. Palmer, 132 Wn.2d at 197. A much stronger showing of abuse of
discretion is required to set aside an order granting a new trial because
an order denying a new trial "'concludes {the parties'} rights.'" Palmer,
132 Wn.2d at 197 (quoting Baxter v. Greyhound Corp., 65 Wn.2d 421, 437,
397 P.2d 857 (1964)). Where sufficient evidence exists to support the
damage award, it is an abuse of discretion to grant a new trial. Palmer,
132 Wn.2d at 198 (citing McUne v. Fuqua, 45 Wn.2d 650, 653, 277 P.2d 324
(1954); Philip A. Trautman, Motions Testing the Sufficiency of Evidence, 42
Wash. L. Rev. 787, 811 (1967)). Where, on the other hand, the verdict is
contrary to the evidence, it is an abuse of discretion to deny a motion for
a new trial. Palmer, 132 Wn.2d at 198.
4The special verdict form did not ask the jury to allocate between special
and general damages; it only asked what the total amount of Buchanan's
damages were.
5See Palmer, 132 Wn.2d at 198.
6Palmer, 132 Wn.2d at 200.