Houck v. Farmers Group, Inc.
Court of Appeals Division I
State of Washington
Opinion Information Sheet
Docket Number: 39334-1-I
Title of Case: William Houck, Respondent
v.
Farmers Group, Inc., et al., Appellants
File Date: 00/00/00
SOURCE OF APPEAL
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Appeal from Superior Court of King County
Docket No: 95-2-02149-2
Judgment or order under review
Date filed: 08/09/96
Judge signing: Hon. James W. Bates Jr
JUDGES
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COUNSEL OF RECORD
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Counsel for Appellant(s)
Payton Smith
Davis Wright Todd Riese & Jones
2600 Century Square
1501 4th Ave
Seattle, WA 98101-1662
Thomas A. Lemly
Davis Wright Tremaine
2600 Century Square
1501 4th Ave.
Seattle, WA 98101-1662
Stephen M. Rummage
Davis Wright Tremaine
2600 Century Square
1501 4th Ave.
Seattle, WA 98101-1688
John H. Zobel
2600 Century Sq
1501 4th Ave
Seattle, WA 98101-1688
Counsel for Respondent(s)
Charles K. Wiggins
Attorney At Law
241 Madison Ave N
Bainbridge Is, WA 98110
David E. Breskin
Short Cressman & Burgess
3000 1st Interstate Cntr
999 Third Ave.
Seattle, WA 98104
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
WILLIAM HOUCK, )
) No. 39334-1-I
Respondent, )
) DIVISION ONE
v. )
)
FARMERS GROUP, INC., a Nevada )
corporation, and FARMERS INSURANCE )
EXCHANGE, a California corporation, )
) UNPUBLISHED OPINION
Appellants. )
) FILED:
AGID, J. -- Farmers Group, Inc. and Farmers Insurance Exchange appeal
the judgment in favor of William Houck entered on the jury verdict in this
action for employment discrimination. Houck was formerly the managing
attorney for Farmers's Seattle Branch Legal Office. Farmers contends the
trial court erred in granting partial summary judgment on the question
whether Houck established the presence of a disability and in declining to
give the jury its proposed instruction on the business judgment rule.
Farmers also raises numerous other issues related to evidentiary rulings,
the jury's damage award, and the court's ruling denying its motions for a
new trial. We find no error or abuse of discretion and affirm.
FACTS
William Houck practiced as a litigator in Chicago for six years. In
1984, Farmers Insurance hired him to open a Branch Legal Office in Seattle.
By 1994, the office employed seven attorneys and roughly the same number of
non-attorney staff. As managing attorney, Houck was the office
administrator and also maintained his own caseload. From 1984 through
1994, he consistently received satisfactory or good marks in his annual
performance reviews.
Houck testified at trial that in 1989 he experienced a panic attack
during trial. It was his first such attack, and he did not report it to
Farmers at the time, instead seeking psychological counseling which
continued over the next five years. When he realized that he was no longer
able to handle confrontational or stressful litigation, Houck avoided those
cases, something he was able to do because he was responsible for assigning
cases to attorneys in the office.
In March 1994, during a meeting at which he discussed Farmers's policy
against sexual harassment with clerical staff members, several secretaries
complained about the behavior of one of the lawyers in the office, Geoff
Swindler. Houck reported the complaints to Patricia Kayajanian, his
supervisor in Los Angeles. She told him he had to report the complaint to
the Human Resources Department as required by Farmers's sexual harassment
policy. She criticized Houck for making that necessary by not handling it
himself. At the conclusion of its investigation, the Human Resources
Department directed Houck to reprimand Swindler for his conduct. In June
1994, Swindler and two other lawyers in the office filed a formal complaint
alleging that Houck was incompetent to manage the office for various
reasons, including his failure to litigate. Farmers did not formally
investigate the complaint at that time but gave Houck a "below
expectations" evaluation for the first time, citing both sets of complaints
as the basis.
In September 1994, Kayajanian decided to go forward with investigating
the June complaint against Houck and directed him to come to Los Angeles to
discuss the matter with her and Ed Morris, Vice President of Claims
Litigation. During that meeting, Houck explained that he did not litigate
because he had been unable to try cases or to handle contested depositions
and arbitrations since his 1989 panic attack. Morris responded that Houck
could not continue as managing attorney if he did not try cases. Houck
asked if they could accommodate him either in his current position or
another position at Farmers. Morris and Kayajanian told him that they
would look into other possibilities and get back to him.
When Houck returned to Seattle, he learned that David Lancaster, the
lead trial attorney in the office, had assigned files to a new attorney and
to outside counsel without informing Houck. Because this violated office
policy, Houck recommended to Kayajanian that Lancaster be placed on
probation. Kayajanian responded by flying to Seattle and putting Houck on
involuntary medical leave. She forced him to clean out his office and
return the keys to the company car the same day. By letter dated October
5, 1994, Kayajanian informed Houck that she and Morris had concluded that
he could not continue as managing attorney unless he was able to try cases.
She demanded a written medical release and told him that, when his medical
leave expired on October 17, Farmers would not allow him to return until he
provided a letter from his doctor indicating he was able to perform "all of
the essential requirements" of the managing attorney position. In
response, Houck informed Farmers that it had effectively forced him to
resign and that he believed he had been constructively discharged.
Houck filed this action for employment discrimination and retaliation
in January 1995. On August 9, 1996, at the conclusion of a seven week
trial, the jury returned a verdict for Houck. Farmers appealed. It does
not contend that the jury's verdict was not supported by substantial
evidence. Instead, it argues that numerous errors by the court below
require reversal.
DISCUSSION
I. Partial Summary Judgment
Farmers first contends the trial court erred when it granted partial
summary judgment to Houck on the question whether he had established the
presence of a disability. In order to prevail, Houck had to prove he was
discharged because of the "presence of any sensory, mental, or physical
disability."1 He moved for summary judgment on the basis that his
condition, "major depression with severe anxiety," constitutes a disability
as a matter of law. Because the question whether a particular condition is
a handicap is generally a jury question under Washington law, the trial
court was initially reluctant to grant the motion and declined to rule
until Farmers's medical expert had time to dictate his report. The
expert's report included the following diagnosis:
Diagnostic Impression: Major Depressive Disorder, chronic of moderate
severity with melancholic features (296.22). There is also a history
of
panic disorder which is secondary to the major depressive illness.
When reasonable minds could reach but one conclusion from the evidence
presented, questions of fact may be determined as a matter of law and
summary judgment is appropriate.2 Because medical experts for both sides
agreed that Houck has a major depressive disorder, there is no basis on
which reasonable minds could differ that he has a "medically cognizable or
diagnosable" condition. Summary judgment was thus appropriate.
Farmers argues that this ruling precluded it from contending that
Houck's medical condition was not so severe that it prevented him from
performing the essential functions of his job as managing attorney. But
Farmers ignores that its own records reflect both that it put him on
involuntary medical leave when he told his superiors that he was unable to
handle confrontational litigation and that Farmers later refused to
reinstate him on the ground that his "current medical condition" did not
warrant his reinstatement. Farmers's own actions established that, in its
opinion, Houck's medical condition made him unable to do the job. The
trial court did not err in granting summary judgment on this issue.
II. Motions in Limine
The trial court ruled in limine that Farmers could not make any
reference to the contents of Houck's psychiatrist's medical records.3
While Farmers agreed that "{Houck} had a major depression disorder with
severe anxiety phobia," it asserted that the records were relevant to the
nature and extent of Houck's disability and to any obligation it had to
accommodate Houck. The psychiatrist's chart notes contained a great deal
of irrelevant and prejudicial information, and Farmers never made an offer
of proof or took any steps to demonstrate to the trial court what documents
in the voluminous file were properly admissible. While Farmers did make an
offer of proof after both parties had rested, this was too late to permit
the court to admit the evidence and did not refer to any specific documents
or parts of the medical records Farmers contended were admissible. As
such, both Farmers's argument opposing the motion in limine and its last
minute offer of proof were insufficient to inform the trial court of what
it contended was admissible to show the nature and extent of Houck's
disability. While we agree with Farmers that some of the evidence in Dr.
Jones's records was admissible,4 it is up to the party seeking admission to
sort through the evidence and demonstrate to the court what is admissible
and why. We will not require the trial court to do it for them. Moreover,
Farmers was not even aware of much of the information in the file at the
time it put Houck on medical leave and later refused to reinstate him. As
Farmers admits, an employer cannot justify a discharge with facts acquired
during litigation.5 Under these circumstances, the trial court did not
abuse its discretion by excluding the psychiatrist's file and prohibiting
Farmers from making any reference to its contents. We recognize that Houck
had the initial burden on the motion in limine. But once he made a prima
facie showing that the material in the file was irrelevant and/or overly
prejudicial, the burden shifted to Farmers to persuade the court what
portions of it were not. This it failed to do.
Farmers argues that the court's ruling prevented it from arguing that
Houck was so profoundly disabled that he was not qualified to manage the
office in the first instance. We agree that the ruling weakened its case
on that issue because there was evidence that Houck's disability prevented
him from dealing with the confrontations inherent in personnel management
and decisionmaking. But Farmers was still not prevented from presenting
its theory that Houck was incapable of managing the office and was
therefore not qualified for the job to begin with. As Houck notes, Farmers
presented extensive testimony by the three attorneys who had filed the
complaint against him, as well as testimony by two other attorneys in the
office, two secretaries, and two of his supervisors, all of which supported
Farmers's theory that Houck was unable to effectively manage the office.
Farmers was not precluded from so arguing.
Also included in the psychiatrist's file and the subject of a separate
motion in limine were communications between Dr. Jones and Houck's two
disability insurers.
The trial court properly excluded that evidence. First, under the
collateral source rule, the trial court could exclude it because it found
that its "extremely prejudicial effect" outweighed any probative value the
evidence had.6 Second, the record reflects that Houck's disability
payments compensated him for the loss of his private practice, not for the
loss of his position at Farmers. Counsel for Farmers argued below that
Houck should not be allowed to certify that he is totally disabled in order
to obtain benefits and then seek to recover for discrimination on the
ground he is not totally disabled. This is true as far as it goes. But
Houck's attorney explained to the court that Houck had never claimed he was
totally disabled and obtained benefits on a claim that he was partially
disabled. Farmers cannot dispute this assertion because it admitted it
never requested production of the pertinent application forms. Because
Farmers was unable to produce any evidence to support its assertion that
Houck had ever claimed to be totally disabled, the trial court did not
abuse its discretion in excluding evidence related to Houck's disability
insurance.
III. Deposition Cutoff
Farmers next contends the trial court abused its discretion when it
ruled on May 10, 1996, that Farmers would not be permitted to complete
Houck's deposition until it complied with outstanding discovery requests.
These included case summaries the court had previously ordered produced,
all the legal files from the Seattle office and all material Houck needed
access to in light of Farmers's affirmative defense that he improperly
assigned cases and misled his supervisors about file assignments.7 The
trial court explained to counsel for Farmers, "You get them all the
material that they have requested prior to {Houck's} deposition, and it
will take place, but if {Houck doesn't} have it, there will be no
deposition." Farmers instead sought discretionary review in this court,
which we denied on May 31. Trial was scheduled for June 24. On June 17,
Houck moved to cut off further discovery, noting that although Farmers
produced some of the files it was ordered to produce during the weeks
following our order denying discretionary review, it had still not produced
all the files that were the subject of that order. In light of Farmers's
continuing discovery violations, the trial court was well within its
discretion when it cut off discovery one week before trial was to begin.8
IV. Evidence of Case Assignment Practices
Farmers also argues that the trial court abused its discretion when it
excluded testimony by Rodney Hollenbeck, Houck's successor as managing
attorney, about a compilation of the numbers and types of cases Houck
assigned to himself and to David Lancaster which he prepared in March 1996.
The trial court further excluded two charts (exhibits 218 and 219) which
reflected the results of Hollenbeck's compilation. Farmers argues that
the trial court's ruling prevented it from presenting "the core of its
defense" to Houck's retaliation claim because it could not argue that the
complaints by Houck's subordinates were valid. But to prevail on his claim
for retaliation, Houck did not need to prove that the three subordinate
attorneys in his office who filed the complaint acted in retaliation.
Rather, he had to show that Kayajanian and Morris retaliated against him.
As the trial court noted in making its ruling, the relevant inquiry about
his retaliation claim was: "What was in the minds of the decision-makers
at the time the decision was made."9 Because the evidence Houck's
successor compiled was not evidence of which Kayajanian and Morris could
have been aware when they made their decisions in 1994, the trial court
correctly excluded it.
V. Improper Admission of Evidence
Farmers also contends the trial court abused its discretion by
allowing Houck to present evidence of the responsibilities of managing
attorneys in other companies. Farmers cites this court to just two
examples. First, after Lancaster testified that a managing attorney's job
includes litigation, Houck asked him on cross examination whether he was
aware that managing attorneys with whom he was acquainted in other offices
had not tried cases in as many as six or eight years. Farmers neither
objected to Houck's questions on cross examination as irrelevant nor does
it specifically address that testimony on appeal. There is consequently
no basis for reviewing it or concluding that the testimony was error.10
Second, Farmers contends that the trial court erred in permitting Dr.
Peter Scontrino, an industrial psychologist, to testify as an expert that
personally trying cases was not an essential function of a managing
attorney's job at Farmers. Specifically, Dr. Scontrino testified to his
opinion that litigating was not an essential function of a managing
attorney's job at Farmers because its literature reflected that, as an
organization, Farmers emphasized the managerial dimension of a managing
attorney's position. In the course of conducting his investigation, Dr.
Scontrino had reviewed declarations submitted by managing attorneys at
other Farmers branch offices as well as managing attorneys for the Seattle
legal departments of several other insurance companies. He also reviewed a
substantial amount of material related to Farmers alone, including job
descriptions, performance evaluations, and statements made at Farmers's
conferences for managing attorneys at its various branch offices. Dr.
Scontrino explained his investigative methods and how he arrived at his
conclusions in substantial detail. He repeatedly acknowledged that Farmers
was entitled to define its jobs in any way it chose, and Farmers had ample
opportunity to cross examine him on this issue. There is no basis for
concluding that his testimony could have confused the jury about what
Farmers required of a managing attorney. The trial court did not abuse its
discretion in permitting Dr. Scontrino to give his opinion about the skills
Farmers treated as essential to the managing attorney position.11
VI. Limitation of Testimony
Farmers also argues that the trial court abused its discretion by
improperly limiting the complaining lawyers's testimony that Houck "was not
pulling his fair share of the load." In the body of its brief, however,
Farmers cites just one example to support this contention. And Farmers
failed to inform us that the actual basis for Houck's objection in that
instance was lack of foundation.12 The trial court sustained the objection
but pointed out to counsel for Farmers that he could lay a foundation;
counsel replied that he did not think he could. Thus, there is no basis
for concluding that the trial court abused its discretion in excluding the
proffered testimony.
VII. Witness Impeachment
Farmers next contends the trial court "improperly influenced the
jury's view of the credibility of Farmers's witnesses." First, Farmers
argues that the trial court erred in giving the jury a mid-trial
instruction at the conclusion of Farmers's direct examination of David
Lancaster. Houck moved to strike portions of that testimony, arguing that
it was inconsistent with the summary list of trials, arbitrations and
mediations Farmers produced during discovery in response to Houck's request
for all litigation files and case summaries for the time he was managing
attorney.13 Farmers concedes that the summary was both inaccurate and
incomplete. But rather than grant Houck's motion to strike, Farmers urged
the court to address Houck's concern by instructing the jury "that we did
produce {exhibit 330} and that Mr. Lancaster has testified inconsistently
with what that summary shows, and that they are to draw their own
conclusions from it." Farmers also argued that the files on which the list
was based had been available to Houck since mid-June, implying that Houck
should have been able to ascertain the degree to which the list was
incorrect. Houck argued in turn that he was entitled to rely on Farmers's
certification that the list was accurate. At that point, Farmers again
suggested that the matter could be resolved by instructing the jury that
"in response to a discovery request . . . a summary had been prepared and
that . . . the jury may find Mr. Lancaster had testified inconsistently
with that and the jury could draw their own conclusions from that." The
court asked both sides to provide it with proposed instructions to that
effect.
By the next morning when they submitted the proposed instructions,
Farmers had changed its position and objected to the instruction as
unnecessary. It also argued that the court should wait until the end of
trial to instruct the jury on that issue. But Houck argued that to wait
until then would make the instruction meaningless. The court informed
counsel that it would give the jury the instruction when Farmers had
completed its direct examination of Lancaster but before Houck's cross
examination. The court instructed the jury as follows:
Defendants, their attorneys and the current managing attorney,
Rodney Hollenbeck, . . . prepared a summary of the trials, mediations
and arbitrations for the Seattle office. Exhibit 330, the summary of
the trial summaries, was prepared by previous attorneys for Farmers
during the
spring of 1996. Defendants and their prior attorneys certified that
this information was full, complete, accurate and truthful, and made
no effort
prior to trial to correct the summary, Exhibit 330, in any way.
Mr. Lancaster has testified at this trial in a manner that is
contrary
to the summary provided by defendants and their prior attorneys. You
may
draw any inferences from this fact which you find appropriate
concerning the veracity of the defendants' witnesses or the
defendants' case.
Farmers argues on appeal that the instruction was an improper comment
on the evidence. It was not.14 And the argument ignores that Farmers
argued in favor of such an instruction as an alternative to granting
Houck's motion to strike portions of Lancaster's testimony. A party cannot
invite a court to give an instruction and then complain of error.15 The
trial court did not abuse its discretion by taking this step to assure that
Farmers's failure to provide complete and accurate discovery did not inure
to its advantage.16
Farmers asserts that the trial court erred in allowing Houck's
attorney to impeach its witness, Kristine Parker, after she denied she had
written or signed a letter (exhibit 48) that was very supportive of Houck.
Parker denied that the "neat" signature on the letter was hers because her
signature is "messy." Houck impeached her with a series of "neat"
signatures virtually indistinguishable from that on exhibit 48. Houck also
impeached her denial by cross examining Swindler to show that Farmers had
failed to challenge the authenticity of exhibit 48 in the parties's
pretrial Joint Statement of Evidence. Farmers admitted that it had not
objected to the letter's authenticity but argued that it had no obligation
to do so because it was also attached to a letter Houck had sent to his Los
Angeles supervisors which was admitted as exhibit 50. That did not relieve
Farmers of its responsibility to challenge the letter's authenticity when
it was separately marked as an exhibit if it intended to make that
challenge at trial. Both areas of inquiry went directly to the question
whether Parker had decided shortly before she testified to deny she was the
author of the letter. The trial court did not abuse its discretion in
overruling Farmers's objections to both lines of questioning.
VIII. Business Judgment Rule
Farmers next argues that the trial court abused its discretion in
refusing to give its proposed instruction on the business judgment rule
which would have stated:
The laws against discrimination do not prevent an employer from
assigning work to an employee, requiring that an employee meet certain
performance standards, or making termination decisions. The law does
not require that every employment decision be correct or be one you
agree with. As long as an employer exercises its business judgment
at the time it acts and does not discriminate against an employee
based
on the employee's disability or handicap, you are not to second-guess
that decision. An employer has a right to act based on its own
judgment,
even if that judgment later proves to be incorrect.
The number and the specific language of jury instructions is a matter
within the trial court's discretion.17 Instructions are sufficient when
they permit a party to argue its theory of the case, are not misleading
and, when read as a whole, properly inform the trier of fact of the
applicable law.18 If these requirements are met, the court need not give a
detailed augmenting instruction.19 It may also properly refuse to give an
instruction that is cumulative of or collateral to instructions already
given.20
Here, other instructions told the jury that, if Houck met his burden
of proving that he had been the subject of an adverse employment action, a
reason for which was the presence of his disability, and that he was able
to perform the essential functions of the job, the employer would then have
an opportunity to produce evidence that there was a non-discriminatory
reason for its action.21 If it did so, the burden would shift back to Houck
to prove that the stated reason was a mere pretext for discrimination. 22
Significantly, the jury was also instructed to consider the employer's
judgment about what functions of the job were essential although it was not
bound by that judgment.23 Under these instructions, the jury could have
found for Houck only if it found that the reason for Farmers's adverse
employment action was his disability and not a legitimate exercise of its
business judgment. The proposed instruction was therefore unnecessary.
The proposed instruction also overemphasized just one of the elements the
jury had to consider in reaching its verdict. The trial court did not
abuse its discretion in refusing to give it.
IX. Expert Testimony About Damages
Finally, Farmers raises several issues in connection with Houck's
damage award. First, it contends the trial court abused its discretion
when it permitted hearsay testimony by Houck's expert which Farmers had no
opportunity to cross examine. Farmers argues that Dr. Lowell Bassett's
opinion on the present value of Houck's future loss of earnings was
improperly based on information provided by Kent Shafer, a job market
specialist. Farmers acknowledges that ER 703 permits an expert to base his
opinion on facts not admissible in evidence if it is "of a type reasonably
relied upon by experts in the particular field in forming opinions or
inferences upon the subject." But it argues there was no showing that the
information provided by Kent Shafer was this kind of evidence, even though
it did not object on that basis below. At trial, the only objection to the
information Bassett got from Shafer was on hearsay grounds. Dr. Bassett
testified that he normally relies on the opinions of job market vocational
specialists to compute economic loss and that he had relied on Shafer's
opinion for that purpose about 50 times. Because there was no objection to
his testimony on the ground that it was inadequate to establish that other
experts in his field also generally rely on data of this kind, Farmers
cannot now raise that issue on appeal.24 Farmers had ample opportunity to
cross examine Dr. Bassett about the information Shafer provided, asking him
more than 40 questions about Shafer's credentials and investigative
methods. Farmers also cross examined both Houck and Dr. Bassett about
discussions each had had with Shafer. The trial court did not abuse its
discretion in admitting Dr. Bassett's testimony.25
X. Damages Award for Emotional Distress
Farmers also contends that the trial court erred in declining to set
aside the jury's award of $920,000 in damages for emotional distress
because it was not supported by the evidence. Under RCW 4.76.030, we
reverse such an award only if we "find from the record that the damages
awarded . . . by the jury were so excessive or so inadequate as
unmistakably to indicate that the amount of the verdict must have been the
result of passion or prejudice." A jury's award of noneconomic damages and
a trial court's reluctance to overturn it is entitled to special deference
because the court and jury have had the opportunity to evaluate first hand
the "candor, sincerity, demeanor, {and} intelligence" of the witnesses.26
This court is much farther removed from the decision, having as we do only
a written transcript to evaluate. Although we agree the award was high,
the record does reflect that Houck suffered substantial emotional pain and
humiliation because of the way he was treated after he reported the sexual
harassment complaints in his office and informed his supervisors of his
disability. We reject Farmers's argument that Nord v. Shoreline Sav.
Ass'n,27 requires detailed testimony of objective symptomatic manifestations
of his distress over and above what could be inferred from Farmers's
conduct and Houck's testimony regarding its impact. As this court observed
in Herring v. DSHS,28 the "objective symptom requirement applies in cases
where negligent infliction of emotional distress is asserted and goes to
proof of liability, not damages." Houck was required only to offer proof
of emotional distress in order to recover damages attributable to his
wrongful termination.29 The trial court was within its discretion in
declining to overturn the jury's award of emotional distress damages.
XI. Order Denying Supplemental Motion for a New Trial
Finally, Farmers contends the trial erred in denying as untimely its
supplemental motion for a new trial.30 Farmers admits it did not file its
motion until 12 days after entry of judgment. The second motion
supplemented its original motion for a new trial filed two days earlier.
But the first motion had not challenged the comment Houck's counsel made in
closing that is the subject of its supplementary motion.31 Farmers argues
that its second motion was timely because any judgment entered without five
days notice is void as a matter of law under CR 54(f)(2). But this
argument overlooks that CR 54(f)(2)(C) provides for immediate entry of
judgment "{i}if presentation is made after entry of verdict or findings and
while opposing counsel is in open court." The record reflects that, after
the jury returned at 1:15 p.m. and had been polled and released, Houck
informed both the court and counsel for Farmers, who had stayed to talk
with jurors, that he had written out a form of judgment which was being
typed by his secretary and would be delivered for immediate entry. Counsel
for Farmers told Houck's attorney to fax it to his office, which he did at
2:30 p.m. At 3:30 p.m. the court called to tell Houck's attorney that it
wanted to proceed. He returned to the court but counsel for Farmers
continued to make himself unavailable. Because counsel for Farmers chose
to return to his office even though he was informed by Houck's attorney
that he was preparing a judgment for immediate presentation to the court,
the court permitted him to participate by speaker phone. The court entered
the judgment just two and a half hours after the jury returned its verdict.
In the circumstances, there is no basis for concluding that the trial court
abused its discretion by proceeding with the entry of judgment and allowing
counsel for Farmers to participate by telephone.
The parties stipulated that Farmers did not object, request a curative
instruction or move for a mistrial because of any statement Houck's counsel
made during his rebuttal closing argument. Even if its supplemental motion
for a new trial had not been untimely, Farmers could not prevail on this
issue because it did not properly preserve it for appeal.32
XII. Attorney Fees
RAP 18.1 authorizes an award of costs and attorney fees on appeal when
the right to recover fees is provided by statute as it is here.33 Provided
he complies with the requirements of RAP 18.1, we award Houck his attorney
fees on appeal.
Affirmed.
WE CONCUR:
1 RCW 49.60.180(2). WAC 162-22-040(1)(b) explains:
"The presence of a sensory, mental, or physical handicap" includes,
but is not limited to, circumstances where a sensory, mental, or physical
condition:
(i) Is medically cognizable or diagnosable;
(ii) Exists as a record or history; or
(iii) Is perceived to exist, whether or not it exists in fact.
2 Van Dinter v. City of Kennewick, 121 Wn.2d 38, 47, 846 P.2d 522
(1993).
3 We review a trial court's order granting a motion in limine for
abuse of discretion. Douglas v. Freeman, 117 Wn.2d 242, 255, 814 P.2d 1160
(1991).
4 Houck's attorney conceded as much at oral argument.
5 Hollingsworth v. Washington Mut. Sav. Bank, 37 Wn. App. 386, 394,
681 P.2d 845, review denied, 103 Wn.2d 1007 (1984).
6 In deciding whether evidence of industrial insurance claims is
admissible notwithstanding the rule that a defendant is not entitled to
introduce evidence of compensation from collateral sources, a court must
weigh the probative value of the proffered evidence against its prejudicial
effect on the plaintiff's case. Goodell v. ITT-Federal Support Servs.,
Inc., 89 Wn.2d 488, 493, 573 P.2d 1292 (1978). The decision to admit such
evidence lies within the sound discretion of the trial court. Id.
7 Decisions denying or granting sanctions for discovery abuse are
reviewed for abuse
of the court's discretion. In re Estate of Fahnlander, 81 Wn. App. 206,
209, 913 P.2d 426, review denied, 130 Wn.2d 1002 (1996). A court abuses
its discretion only when its decision is manifestly unreasonable or based
on untenable grounds. Id.
8 Under the trial court's pretrial order, the original discovery
cutoff was May 2, 1996.
9 As we explained in Hollingsworth, 37 Wn. App. at 394:
The employer's intent at the time of the challenged act, i.e., discharge,
is the critical inquiry. The legitimate nondiscriminatory reasons cannot
be based upon facts not known to the employer at the time of the challenged
act. Facts unknown at the time of the challenged act do not make the
alleged unlawful practice more or less probable and are completely
irrelevant. Thus, an employer may not articulate reasons for discharge
that are based on evidence uncovered through discovery or in any other
manner to justify a prior discharge.
(Citations omitted.) See also Gaglidari v. Denny's Restaurants, Inc., 117
Wn.2d 426, 438, 815 P.2d 1362 (1991).
10 Cowich Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d
549 (1992).
` 11 Reese v. Stroh, 128 Wn.2d 300, 310, 907 P.2d 282 (1995) (admission
or exclusion of expert testimony is reviewed for abuse of discretion).
12 In a footnote, Farmers lists 17 other examples where testimony was
excluded. Many of these instances also involved objections based on lack
of foundation. In some, the objection was sustained and in others Farmers
was able to lay an adequate foundation and proceed. Because Farmers has
neither specifically assigned error to each of these instances nor argued
them in its brief, we decline to consider each individually. See, e.g.,
Valley View Indus. Park v. City of Redmond, 107 Wn.2d 621, 630, 733 P.2d
182 (1987) (a party abandons assignments of error not argued in its brief);
Johnson v. Department of Licensing, 71 Wn. App. 326, 332, 858 P.2d 1112
(1993) (issues not supported by argument and specific citation to authority
will not be considered).
13 Houck's attorney indicated that he had relied on the admittedly
inaccurate summary in preparing his case. When Houck testified during
trial that Lancaster could not have had a trial in September 1994 because
it was not listed on exhibit 330, Farmers impeached Houck with the
litigation file.
14 Windle v. Huson, 32 Wn. App. 230, 253, 646 P.2d 790, review denied,
97 Wn.2d 1026 (1982) (a trial court does not comment on the evidence when
it corrects a potentially misleading inference arising from examination of
a witness). Even if there had been any danger that the jury would have
misinterpreted it as a comment on the evidence, the trial court instructed
the jury at the conclusion of the case that it was not permitted to comment
on the evidence and had not intentionally done so, and that if the jury
believed that it had, it should disregard that comment. We presume the
jury follows the instructions. State v. Johnson, 124 Wn.2d 57, 77, 873
P.2d 514 (1994).
15 Davis v. Globe Mach. Mfg. Co., 102 Wn.2d 68, 77, 684 P.2d 692
(1984); City of Bellevue v. Kravik, 69 Wn. App. 735, 739, 850 P.2d 559
(1993).
16 Burnet v. Spokane Ambulance, 131 Wn.2d 484, 496, 933 P.2d 1036
(1997) (permitting a court to remedy discovery violations by taking steps
"to ensure that the wrongdoer does not profit from the wrong").
17 Havens v. C&D Plastics, Inc., 124 Wn.2d 158, 165, 876 P.2d 435
(1994).
18 Id.
19 Id.
20 Id.
21 Instruction 9.
22 Id.
23 Instruction 14.
24 See State v. Russell, 125 Wn.2d 24, 93, 882 P.2d 747 (1994), cert.
denied, 514 U.S. 1129 (1995).
25 Reese, 128 Wn.2d at 310.
26 Bingaman v. Grays Harbor Community Hosp., 103 Wn.2d 831, 835, 699
P.2d 1230 (1985). See also Washburn v. Beatt Equip. Co., 120 Wn.2d 246,
269, 840 P.2d 860 (1992) (the determination of the amount of damages for
pain and suffering is peculiarly within the province of the jury).
27 116 Wn.2d 477, 805 P.2d 800 (1991).
28 81 Wn. App. 1, 24, 914 P.2d 67 (1996).
29 Id. at 25.
30 Under CR 59(b), a party has 10 days to file a motion for a new
trial.
31 We agree that the comment was entirely improper because the cap on
damages is not a matter for the jury. See Sasaki v. Class, 92 F.3d 232,
237 (4th Cir. 1996).
32 See Russell, 125 Wn.2d at 93.
33 RCW 49.60.030(2).