|
DO NOT CITE. SEE GR 14.1(a).
Court of Appeals Division II
State of Washington
Opinion Information Sheet
| Docket Number: |
41008-7 |
| Title of Case: |
Falina Hickok-knight, Appellant V. Wal-mart Stores, Inc., Respondent |
| File Date: |
06/07/2012 |
SOURCE OF APPEAL
----------------
| Appeal from Pierce County Superior Court |
| Docket No: | 07-2-12365-8 |
| Judgment or order under review |
| Date filed: | 07/02/2010 |
| Judge signing: | Honorable Katherine M Stolz |
JUDGES
------
| Authored by | J. Robin Hunt |
| Concurring: | Jill M Johanson |
| David H. Armstrong |
COUNSEL OF RECORD
-----------------
Counsel for Appellant(s) |
| | Thomas Joseph West |
| | Krilich Laporte West & Lockner PS |
| | 524 Tacoma Ave S |
| | Tacoma, WA, 98402-5416 |
Counsel for Respondent(s) |
| | Bert William Markovich |
| | Schwabe Williamson & Wyatt PC |
| | 1420 5th Ave Ste 3400 |
| | Seattle, WA, 98101-4010 |
|
| | Colin Jeffrey Folawn |
| | Schwabe Williamson & Wyatt PC |
| | 1420 5th Ave Ste 3400 |
| | Seattle, WA, 98101-4010 |
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
FALINA HICKOK-KNIGHT, a single person, No. 41008-7-II
Appellant, UNPUBLISHED OPINION
v.
WAL-MART STORES, INC., a foreign
corporation,
Respondent.
Hunt, J. -- Falina Hickok-Knight appeals the jury's $6,433.35 award to her of damages
against Wal-Mart Stores, Inc., the trial court's $5,526.17 costs award to Wal-Mart (based on her
damages award being less than Wal-Mart's settlement offer), and the trial court's denial of her
motion for a new trial. Hickok-Knight argues that the trial court (1) erroneously allowed (a) the
jurors to touch her feet during her direct examination to gauge their relative temperatures, (b)
expert witnesses to testify about her medical, mental health, and social histories, and (c) Wal-
Mart's expert psychiatric witness to testify about her medical, mental health, and social histories;
(2) violated the appearance of fairness doctrine; (3) erred in refusing to give her requested jury
instructions about aggravating and "lighting up" pre-existing conditions; and (4) erroneously
awarded Wal-Mart costs incurred before its offer of judgment. We vacate the trial court's costs
award to Wal-Mart and remand with instructions for the trial court to award Wal-Mart only those
No. 41008-7-II
costs it incurred after it made its offer of judgment to Hickok-Knight. We otherwise affirm.
FACTS
I. Background
A. Hickok-Knight's Foot Injury at Wal-Mart
After shopping at a Wal-Mart Store on June 24, 2006, Falina Hickok-Knight was
returning her shopping cart in the parking lot when a forklift driven by a Wal-Mart employee
collided with a row of other shopping carts that hit Hickok-Knight's cart, causing it to hit, run
over, and stop on top of the middle of her left foot. She limped back to her car, called Wal-Mart
to report the incident and spoke with an assistant manager, drove to her parents' house, iced her
foot, and then drove with her father back to Wal-Mart, where they spoke with a manager and
filled out a "customer incident statement." I Verbatim Report of Proceedings (VRP) at 278; Ex.
61. Hickok-Knight did not seek medical attention that day.
The next day, Hickok-Knight went to an emergency room and had her foot x-rayed; the
results were "normal" and showed no fracture. II VRP at 284-85. Her medical records showed
that she had "minimal swelling" and "no discoloration."1 VII VRP at 1189-90. Two days after
her injury, Hickok-Knight saw (1) a physician's assistant, who "found a little swelling on the top
of the foot" and diagnosed her with "foot pain"; and (2) a podiatrist, Dr. Gavin Smith, who
performed a computed tomography (CT) scan (which turned up "normal" and showed that
Hickok-Knight did not have any broken bones or damaged tendons or muscles), diagnosed a
"foot bruise," and referred her to a physical therapist. II VRP at 285-86, 335; Ex. 2.
1 According to Hickok-Knight, however, the emergency room staff "diagnosed" a bruise on her
left foot. II VRP at 285-86.
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No. 41008-7-II
The next month, Hickok-Knight underwent physical therapy. At some point, she also
underwent magnetic resonance imaging (MRI), the results of which were "normal." VII VRP at
1191. On September 22, she again saw Dr. Smith, who "found that there was no swelling, no
redness, [and] no skin changes" and opined that Hickok-Knight "had idiopathic foot pain," which,
according to Hickok-Knight, meant that Dr. Smith "didn't know what was the matter." VII VRP
at 1193.
In October, Dr. Smith referred Hickok-Knight to Dr. David Judish, who took a "long
history" from Hickok-Knight, conducted an "[electromyogram] and nerve conduction studies,"
diagnosed her with depression, and prescribed an anti-depressant. II VRP at 316-17. Dr. Judish
also noticed that when Hickok-Knight was distracted, she did not react when he touched her
injured foot; he ruled out a diagnosis of complex regional pain syndrome (CRPS).2 This was the
last time for over a year that Hickok-Knight visited a care provider specifically for her foot
injury.3
B. Hickok-Knight's Work History
Before injuring her foot, Hickok-Knight had worked (1) as a sales clerk at Benjamin
Franklin for two months in 2001; (2) in a Wal-Mart position from May 2003 through September
2005 at $10.29 an hour; and (3) as a dental assistant from September 2005 to April 2006 at
2 CRPS (formerly known as "reflex sympathetic dystrophy" or "RSD") is a "chronic pain state,
usually preceded with some type of trauma." II VRP at 335, 417. CRPS sufferers have a "wide
spectrum of symptoms." III VRP at 449. Some patients have "severe, pretty much obvious, daily
signs of CRPS"; others may have symptoms that "come and go." III VRP at 449.
3 From October 2006 through November 2007, Hickok-Knight saw a physician's assistant four
times. Hickok-Knight also had five telephone conversations with her physician. During none of
these visits or conversations did she mention any foot pain.
3
No. 41008-7-II
$12.00 an hour, from which she was fired, two months before her foot injury.
Hickok-Knight returned to the workforce around the time that she stopped seeing care
providers about her foot. From October 2006 to April 2007, she worked for a jewelry retailer,
where she sometimes used a cane and sat down frequently. Hickok-Knight left her jewelry
retailer job to work as a dental assistant for a different dental office for three months until she was
terminated (because "[a]fter 3 month[s] of train[ing], [Hickok-Knight] was not understanding full
[patient] care. Her chart notes were very unclear."). Ex. 60. In August 2007, she returned to
work for the same jewelry retailer, where she used a cane and sat down frequently. In March
2008, Hickok-Knight again stopped working for the jewelry retailer. After that, she did not
return to the workforce.
II. Hickok-Knight's Continuing Medical Treatment
A. Dr. Smith (Hickok-Knight's Podiatrist)
After filing her lawsuit, Hickok-Knight returned to her podiatrist, Dr. Smith, complaining
about pain in her left foot. Dr. Smith, however, (1) "said there was no redness or temperature
changes, no skin or nail changes, no swelling," (2) opined that Hickok-Knight possibly was
suffering from CRPS, (3) advised her to research CRPS on the internet, (4) referred her for a
three-phase bone scan, and (5) referred her to Dr. Long Vu, an osteopathic doctor. II VRP at
338; 3 VRP at 411, 413; 7 VRP at 1205. Hickok-Knight's December 2007 three-phase bone scan
indicated "[m]inimally decreased blood flow of perfusion to the left foot compared to the right is
suggestive of [CRPS]." III VRP at 428; VII VRP at 1201-02; Ex. 8.
B. Dr. Vu (Hickok-Knight's Osteopath)
When Hickok-Knight saw Dr. Vu for the first time on February 2, 2008, she complained
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No. 41008-7-II
about pain spreading up her leg to her groin and constant aching, burning, throbbing, shooting,
and sharp pain. Dr. Vu (1) observed some discoloration on Hickok-Knight's left foot, as well as
allodynia;4 (2) documented that one of Hickok-Knight's feet was "significantly colder than the
other foot when [he] touched it"; (3) found the three-phase bone scan results to be "consistent
with CRPS"; (4) diagnosed Hickok-Knight with CRPS5; and (5) prescribed medication to alleviate
her pain and to help her sleep. III VRP at 427, 433; Ex. 5.
On February 13, Dr. Vu performed on Hickok-Knight a "sympathetic block," which
applied local anesthetic to nerves through a spinal injection and "worked to increase blood flow to
the . . . foot." III VRP at 439. At first, there was "significant pain relief," but the effects "slowly
wore off." III VRP at 440, 442. On February 21, Hickok-Knight returned for a second
sympathetic block, which produced similarly effective, but temporary, results. On March 10, Dr.
Vu also used a needle to perform "neurolysis of the sympathetic chain," a procedure known as
4 "Allodynia," which may accompany CRPS, is "the sensation of pain from a stimulus that is
typically not painful." III VRP at 419. Dr. Vu observed that, if he touched Hickok-Knight's foot
when she was "distracted," she would not complain of pain, similar to Dr. Judish's October 2006
observations. III VRP at 493-94; VII VRP at 1195.
5 Dr. John Loeser, Hickok-Knight's expert witness, later described "CRPS" as:
[An] altered function in a region of the spinal cord that produces a variety of signs
and symptoms in an extremity or sometimes more than one extremity, but there is
no anatomic pathology; meaning, there's nothing you can see by looking at
somebody that says there's something wrong here. There's no tumor or infection
or growth of any sort. It's an alteration in the way the spinal cord functions that
produces the pain and the other signs and symptoms that patients with CRPS will
have.
IV VRP at 538. CRPS diagnosis criteria include (1) "severe pain that is persistent well beyond
the initial recovery period"; and (2) "skin changes" and changes in "nail growth," "hair growth,"
"muscle bulk," and "blood supply." III VRP at 417-18. In the "acute phase," an extremity may
be "warm" or "hot"; chronic CRPS may result in a "cold extremity." III VRP at 418. CRPS can
also cause "color changes and swelling." III VRP at 418.
5
No. 41008-7-II
"sympathetomy" or "radio ablation"; this procedure involves "cauterizing" nerves in Hickok-
Knight's spine with "radiofrequency" and "disrupts the signal transmission along that chain at that
level . . . giving it a more permanent response; a more long-acting" treatment. III VRP at 447,
486; Ex. 5. After this procedure, Hickok-Knight's "temperature difference seemed to . . .
improve," "so the foot didn't seem to feel as cold to her"; this increase in temperature "persisted."
III VRP at 447-48.
C. Dr. Wray (Wal-Mart's Expert Neurologist)
A few weeks later, on March 28, Hickok-Knight saw Dr. Linda Wray, a neurologist whom
Wal-Mart hired to conduct an independent medical examination of Hickok-Knight. Hickok-
Knight complained to Dr. Wray about "a lot of pain and all kinds of problems," displayed "very
dramatic limp," and "would barely put her left foot down on the floor" or "bear weight on it." V
VRP at 736; VII VRP at 1208. After completing the examination, Dr. Wray concluded that
Hickok-Knight did not suffer from CRPS.
Two months after Dr. Wray's examination, on June 2, Wal-Mart's surveillance video
showed Hickok-Knight filling up her vehicle with gas without any apparent impairment to her
walking. Similarly, a June 14 surveillance video6 showed Hickok-Knight, without any obvious
physical impairment, burying a dead animal in her front yard and shopping at the Wal-Mart where
she had suffered her foot injury, pushing a shopping cart down the aisle, walking without pushing
the cart, and loading groceries into a vehicle. And a July 7 surveillance video showed Hickok-
Knight walking without obvious impairment.
D. Return to Dr. Vu
6 Wal-Mart apparently hired investigators to take this surveillance video.
6
No. 41008-7-II
On September 30, Dr. Vu discussed these surveillance videos with Hickok-Knight. Based
on these videos, Dr. Vu did not want to proceed with a "spinal cord stimulator trial, which would
have involved threading an electrode wire into her spinal column and connecting the wire to a box
that Hickok-Knight would have worn outside her body to provide electrical stimulation to her
spinal cord. VIII VRP at 1221. Instead, Dr. Vu encouraged Hickok-Knight to follow up with a
pain clinic. Instead of attending a pain clinic, however, Hickok-Knight returned to Dr. Vu a
month later, on November 5, continuing to complain about pain in her left foot. After this
appointment, Dr. Vu noted, "Though [Hickok-Knight] has . . . hypersensitivity to exam, she does
not meet other criteria for CRPS." Ex. 57. Dr. Vu again suggested that Hickok-Knight follow
up at a pain clinic.
E. Dr. Silver (Pain Clinic Psychologist); Return to Dr. Vu
In December, Dr. Frederick Silver, a psychologist at the Franciscan Chronic Pain
Management to which Dr. Vu had referred Hickok-Knight, evaluated her preadmission. Dr.
Silver's "[d]iagnostic impression" was that Hickok-Knight suffered from "[p]ain disorder with
depression, anxiety and [CRPS]" and "[a]djustment disorder with mixed anxiety and depressed
mood versus dysthymic disorder."7 Ex. 9. The pain clinic admitted Hickok-Knight on March 2,
2009, and discharged her one or two months later.
In May, Dr. Vu asked Dr. Silver to perform a follow-up "psychological analysis" of
Hickok-Knight to determine whether she was a candidate for a spinal cord stimulator trial. VII
VRP at 1093. Dr. Silver "thought" that Hickok-Knight "could cope with the procedure" but
7 "Dysthymic disorder" is "a low level, long-term, chronic depression, or an adjustment disorder
with mixed anxiety and depressed mood." VII VRP at 1092.
7
No. 41008-7-II
"that her depression should be addressed to maximize the outcome of the stimulator trial." VII
VRP at 1093-94.
On June 25, Hickok-Knight saw Dr. Vu again, continuing to complain about "shooting,
throbbing, achey" pain in her left foot. Ex. 48. Based on Dr. Silver's follow-up evaluation, Dr.
Vu recommended that Hickok-Knight undergo the stimulator trial. But less than two months
after seeing Dr. Vu, again complaining about foot pain, Wal-Mart's August 19 surveillance tape
showed Hickok-Knight walking to and from a vehicle, carrying several bags of groceries, and
placing those groceries in a vehicle's trunk, all without apparent difficulty.
Eight months later, on March 31, 2010, Hickok-Knight underwent the spinal cord
stimulator trial. The stimulator trial failed, medically speaking, because Hickok-Knight asserted
that it did not provide enough pain relief.
III. Procedure
Hickok-Knight sued Wal-Mart, asserting that (1) a Wal-Mart employee, acting within the
scope of employment, had "negligently performed his duties and as a result, caused a serious
injury to the plaintiff"; and (2) Wal-Mart had negligently trained and supervised that employee,
and "was otherwise negligent in the operation of the store." Clerk's Papers (CP) at 1-2. Hickok-
Knight sought damages for medical expenses, income loss, and pain and suffering.
A. Partial Summary Judgment; Offer of Judgment
The superior court granted Hickok-Knight's partial summary judgment motion,
concluding that (1) Wal-Mart was liable for the June 24, 2006 incident; (2) there was no
comparative fault by Hickok-Knight; and (3) "the sole issue at trial will be the causation, nature
and extent of plaintiff's injuries and damages." CP at 18. In October 2009, Wal-Mart made an
8
No. 41008-7-II
offer of judgment to Hickok-Knight for $30,000. Refusing the offer, Hickok-Knight elected to go
to trial.
B. Pretrial Rulings
In a pretrial hearing on April 12, 2010, Wal-Mart argued that Hickok-Knight's medical
and social histories were relevant and therefore, admissible, to show that "she does not have RSD
or [CRPS]" and that "[e]ither there's something going on psychologically or she's faking it."8 I
VRP at 5-6. Disagreeing, the trial court ruled, "Any reference to [Hickok-Knight's] prior
physical or emotional health is not admissible." I VRP at 12.
Further elaborating on its ruling, the trial court explained that the jury had to make only
one of two findings: (1) either Hickok-Knight "matches the criteria" for CRPS; or (2) "she
doesn't match it." I VRP at 13. Wal-Mart argued that the jury could make a third finding -- that
Hickok-Knight believes she suffers from the injury, but that her injury is "psychosomatic," namely
that she suffers "distress and emotional pain" but "report[s] it as physical pain." I VRP at 24.
The trial court rejected this argument, stating, "[L]egally in this case, [the jury] either find[s] it's a
8 Wal-Mart's theory was that:
[Hickok-Knight] suffered a bruised foot in the accident at Wal-Mart and that she
does not have RSD or [CRPS]; so if she doesn't have [them] . . . what explains her
subjective complaints of chronic pain? . . . Either there's something going on
psychologically or she's faking it.
. . . .
Essentially, [Hickok-Knight] expresses a social stressor -- stressors and
anxiety in her life as subjective complaints of pain. These certain things are
relevant, i.e., her conditions and her social stressors, the fact she's a divorced,
single mother that's in debt. . . . [T]he background of some of these other medical
conditions are also absolutely relevant of what she sought treatment for in the past;
but part of hysteroid personality characteristics -- you know, a different and I guess
dumbed-down version of saying that is that it's hypochondria.
I VRP at 5-7.
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No. 41008-7-II
valid condition and she has it or that she doesn't; and why she doesn't, the jury isn't going to care
about that." I VRP at 24.
C. Trial Testimony
1. Marcia Hickok-Ritchie's testimony
Hickok-Knight's sister, Marcia Hickok-Ritchie,9 testified that (1) after Hickok-Knight
injured her foot, she would "freak out and start crying" whenever someone "barely touch[ed] her
leg"; (2) she observed "discoloration" on the top of her sister's foot; and (3) "[y]ou can touch one
foot and feel how warm it is and then touch the other one, and it's freezing. It's like she has no
circulation in it." I VRP at 135, 141. When Hickok-Knight's counsel asked, "[I]s that coldness
there all the time[?]" Marcia responded, "[T]he coldness is always there." I VRP at 141.
2. Hickok-Knight's testimony; jury's observation and touching her feet
Hickok-Knight testified that (1) her pain was "constant" and "shooting" and "tingling in
the left foot that travels through [her] leg and into [her] buttocks"; (2) she would experience
"burning sensations in [her] foot" and sometimes would be "completely immobilize[d]"; and (3)
her foot had started to change color that morning, the second day of her direct examination. II
VRP at 189, 212. Hickok-Knight's counsel asked the trial court for permission "to show the jury
[Hickok-Knight's injured] foot compared to her other foot; so [it] could look at it and actually see
what's happening." II VRP at 212. The trial court agreed and ordered the jury to walk over to
Hickok-Knight to look at her feet. The jury then visually examined Hickok-Knight's left foot.
When direct examination resumed, Hickok-Knight testified that (1) after the injury, her left
9 To avoid confusion, we refer to Marcia Hickok-Ritchie simply as "Marcia." We intend no
disrespect.
10
No. 41008-7-II
foot "went really cold" and "was like ice always"; (2) the nerve ablation procedure that Dr. Vu
performed in March 2008 had "brought back heat" to her left foot; but (3) since then, "the cold
has returned; but it's not constant like it was before. It is off and on." II VRP at 233. Hickok-
Knight's counsel then asked, "[J]ust as you've been sitting here, has your foot color changed? Is
it getting more pronounced?" Hickok-Knight replied, "Yes. I believe it is." II VRP at 250.
When counsel asked her to describe the progression of the change in her foot color, Hickok-
Knight replied:
My skin is blotching, mottled. As my foot -- the pain increases, the blotching
increases. The redness will increase. I have whiteness on my foot, like somebody
pushed on their foot and you, you know, lose the blood in that area; so that's what
it looks like. It starts to swell more.
II VRP at 250-51.
Wal-Mart asked to voir dire Hickok-Knight about her foot's color change, stating, "I'd
like to ask her some questions. I'd like the jury to look at her foot to see if they see the change"
since the jury's previous visual inspection that had occurred minutes earlier. II VRP at 251. The
trial court responded, "Well, ultimately, it is [a] jury question as to whether or not the foot is
colored or changing; so if you feel, based on this testimony, that they need to take a look at the
foot as it is right now, then we'll do that." II VRP at 251. When a juror asked, "Can I touch
those feet if I want?" the trial court replied, "Well, we'll take that up after the morning recess." II
VRP at 251-52.
After recess, outside the jury's presence, the trial court stated, "[T]here's testimony that if
there's different temperatures between the feet, I assume that [the juror] wants to see that for
herself." II VRP at 251-52. Hickok-Knight replied:
Yeah. I guess she does. What my client said was that the temperature changes
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No. 41008-7-II
occur from time to time. They're not there all the time, but I guess my concern is
more the pain that my client feels when people touch her foot; so I don't mind
them looking, but I don't know if I want somebody -- especially one
juror -- diagnosing something.
II VRP at 253. The trial court stated, "Well, they all [the jurors] may wish to touch it." II VRP
at 253. Hickok-Knight's counsel responded, "Well, I don't know that I want all of them touching
her. Okay. I don't think that's appropriate." II VRP at 253.
The trial court stated, "Juror No. 7 has an interest because of the testimony regarding
temperature differences. I mean, it's an issue." II VRP at 253. Hickok-Knight replied:
It's not an issue for the purpose of touching the foot and finding out if it's an issue
because my client has already -- now, if she said something like it's always cold
compared to the other one, that would be one thing. I think the one thing she did
say that made it clear to all the jurors, and presumably everyone in the courtroom
here, is that after she had the nerve ablation [procedure], the one thing that it did
take care of for a good period of time was the cold versus hot; and now it only
happens occasionally where it's cold and not hot, so I don't want the jury touching
her for that reason. There's no good reason to do it, given her testimony; and I'm
not going to have 12 people coming up and touching my client's foot when it's
ultra sensitive. There's just no reason to do it.
II VRP at 253-54.
The trial court ruled:
Well, Counsel, I've heard enough. All right. I'm going to allow whatever jurors
wish to compare the relative temperatures of the two feet to go ahead and do so.
. . . .
I can understand [why Hickok-Knight does not want the jurors to touch her foot].
She says it's very, very, very painful. We also do have, however, when we get
there, the medical testimony which indicates that when she's distracted, she
doesn't feel pain; but, I mean, you know, given the fact that it's an issue in this
case, I'm going to allow whichever members of the jury wish to touch the foot to
touch the foot.
II VRP at 256.
Hickok-Knight further argued:
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No. 41008-7-II
If the ruling of the Court is that my client's foot be touched by whatever juror
wants to do it . . . then, if some other jurors don't want to do it, then what you
have is evidence that some jurors have but other jurors don't; and then they're
going to be relying on those jurors; so either none or all of the jurors would,
otherwise, have to touch my client's foot.
II VRP at 257. The trial court agreed, ruling, "[I]t will have to be all the jurors." II VRP at 257.
Then trial court then clarified that it would instruct the jurors to "lightly place their hands
on top of the foot and the other foot" and not to "grab," to "squeeze," or to "press" Hickok-
Knight's foot. II VRP at 258. Hickok-Knight's counsel reiterated his objection, to which the trial
court stated:
I understand that, Counsel; but, you know, once -- I mean, a lawsuit has been filed.
One juror feels that she, you know, as a trier of fact, wants to -- I mean, it has been
an issue. I mean, the testimony has been that the temperature changes sometimes
do accompany these discolorations; and it's -- you know, at least from my
recollection, she's been a little contradictory about when it does and when it
doesn't; so if that's what they want to do, I'm going to let them do it.
II VRP at 259.
Hickok-Knight's counsel asked the trial court, "[H]ow do we handle my client's pain if
she is in pain or if somebody touches it too hard? Do we stop, or do we just keep going?" II
VRP at 259. The trial court reiterated that it would instruct the jury not to grab, to squeeze, to
press, or to hold the foot, and stated, "I don't think that the jury is going to be doing anything;
and, you know, if there's pain, you know, we'll deal with it." II VRP at 259. The trial court
then instructed the jury to touch Hickok-Knight's feet. Hickok-Knight later testified that the
jury's touching her left foot "was like a knife being dr[iven] through [her] foot." II VRP at 268.
2. Dr. Vu
Dr. Vu, Hickok-Knight's treating osteopathic doctor, testified as an expert witness
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No. 41008-7-II
substantially as set forth in the previous section of this opinion. During his testimony, Hickok-
Knight's counsel interjected, "[R]ecently, my client was ordered to submit to touching by the jury,
albeit light touch. Of course, the jury didn't know what the situation was; and they touched my
client's feet." III VRP at 421. Wal-Mart objected. After excusing the jury, the trial court asked
Hickok-Knight, "Counsel, where are we going with this?" Hickok-Knight replied, "Well, I want
the jury to understand that when my client reacted the way she did, there was a reason for it. It's
very simple." III VRP at 422. The trial court responded:
Counsel, [Dr. Vu] wasn't here when we did the test stroking last week. We
haven't even established whether or not she suffers from the touch, or which kind
of allodynia she suffers from. You haven't gotten into his treatment or diagnosis
with her; and you're asking him now to comment on something that occurred
outside his presence, you know. I'm going to sustain the objection. I don't think
we're going anywhere with this.
III VRP at 422.
Subsequently, in response to Hickok-Knight asking Dr. Vu what, "on a more probable
than not basis," caused Hickok-Knight's CRPS, Dr. Vu replied, "[T]he initial injury," and that he
did not have "any documentation that there was chronic pain before this incident." III VRP at
459. Dr. Vu also testified, however, that (1) he performed the sympathetic blocks and radio
ablation intervention techniques in February and March 2008, before he saw Wal-Mart's June and
July 2008 surveillance videos of Hickok-Knight; and (2) he would not have performed these
intervention techniques if he had seen such videos beforehand because in the videos, Hickok-
Knight appeared to have "a high enough level of function" that the risks involved with the
intervention techniques would have outweighed the potential gains. III VRP at 477-78.
3. Economic loss: vocational rehabilitation expert
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No. 41008-7-II
Hickok-Knight called a vocational rehabilitation expert and an economist to prove the
economic loss from her foot injury. The vocational rehabilitation expert testified that Hickok-
Knight would be unable to work as a dental assistant because of the "continuous standing"
involved, so the only position she could hold would be an "office-type job." VRP (Apr. 15, 19,
2010) at 10. The vocational rehabilitation expert opined, however, that Hickok-Knight lacked the
requisite skills for an office job.
Based on the vocational rehabilitation expert's assessment of Hickok-Knight's ability to
work, the economist testified that $233,852 represented the amount of lifetime earning capacity
that Hickok-Knight would lose if she could work only as a medical office assistant instead of as a
dental assistant. The economist also explained that if Hickok-Knight were totally unemployable
and unable to perform household services, then $1,372,118 represented her loss of earning
capacity and her cost of household services.
4. Dr. Loeser
Before Hickok-Knight called her next expert witness, Dr. John Loeser, Wal-Mart again
argued for admission of her medical and social histories because Wal-Mart's theory of the case
was that Hickok-Knight has "psychosomatic problems." IV VRP at 508. Hickok-Knight
objected.
Reversing its pretrial ruling, the trial court concluded:
I think, under the circumstances, that [Wal-Mart] is entitled to cross-examine Dr.
Loeser as to whether or not he considered [Hickok-Knight's medical and social
histories] in making his opinion.
. . . .
I think in formulating a medical opinion regarding whether or not she's got CRPS,
you know, I mean, they are entitled to go into the extent of his knowledge
regarding her prior medical history. There may be things that do tend to support
Dr. [John] Hamm's [Wal-Mart's expert psychiatrist witness who testified later in
15
No. 41008-7-II
the trial] conclusion that, you know, she may well have this somatization disorder.
I don't know. Ultimately, that's the jury's decision; but I think the jury is entitled
to know what the basis of Dr. Loeser's opinion is.
IV VRP at 527-28.
Hickok-Knight responded, "Well, I've already told you that based on your [pretrial]
rulings here [that excluded evidence of Hickok-Knight's medical and social histories], I've already
told [Dr. Loeser] not to talk about any of that." IV VRP at 529. Hickok-Knight then conferred
with Dr. Loeser and informed the trial court, "[A]ctually, I was wrong. Dr. Loeser, I believe, did
see all [of Hickok-Knight's] medical records. We did send him everything [we] received, so he
looked at them." IV VRP at 529.
Dr. Loeser, a professor of neurological surgery and anesthesiology and Hickok-Knight's
expert witness, had reviewed Hickok-Knight's medical records, as well as "the depositions of
other physicians that included a review of all of her prior history before the accident that injured
her foot," and the report of Dr. Hamm, Wal-Mart's expert witness and the psychiatrist and who
had evaluated Hickok-Knight in person before trial, which "lists a number of things that happened
to [Hickok-Knight] in her youth and up through the time that she was an adult." IV VRP at 542,
544, IV VRP at 547; V VRP at 861. Dr. Loeser himself, however, had not physically examined,
interviewed, or performed any tests on Hickok-Knight. Based on her records alone, Dr. Loeser
testified that Hickok-Knight "has an absolutely classic, typical case of CRPS in all respects" that
"was caused by the trauma to her foot that occurred when her foot was struck by a shopping
cart." 10 IV VRP at 542-44.
10 Dr. Loeser also testified, "Headaches are every bit as murky as CRPS" and further explained:
[CRPS] is not a psychiatric or psychological condition. It is a medical condition
whose mechanism of ideology we don't understand completely, but we don't
16
No. 41008-7-II
On cross-examination, Dr. Loeser testified that treating a patient involves obtaining the
patient's medical history and, consequently, he agreed that it was "valuable" to look at Hickok-
Knight's medical history. IV VRP at 595-96, 598. Using Dr. Hamm's report, Wal-Mart asked
Dr. Loeser questions about Hickok-Knight's history: For example, Wal-Mart asked whether he
was aware that (1) Hickok-Knight had supposedly feigned seizures when she was 12 years old;
and (2) when she was 15 years old, she had complained of "fe[eling] like her kneecap popped
out" but that a subsequent examination revealed no injury. IV VRP at 596-97. Dr. Loeser stated
that he was aware of this part of Hickok-Knight's medical history. Hickok-Knight objected
during this line of questioning, but the trial court disagreed, ruling, "Well, it's a medical record
that was reviewed; and to the extent that he reviewed it, you can ask him questions regarding it."
IV VRP at 598. Wal-Mart then asked Dr. Loeser whether he was aware that "since she was 18
years old, [Hickok-Knight had] visited the emergency room six times." IV VRP at 599. Dr.
Loeser testified that he was also aware of this.
5. Dr. Wray
Wal-Mart's expert neurologist witness, Dr. Wray, testified that she had reviewed Hickok-
Knight's recent medical records, interviewed Hickok-Knight, had taken "a general medical history
in terms of other illnesses and injuries she might have had," and had "carried out a detailed
neurologic exam." V VRP at 706-07. Dr. Wray testified that, based on a "reasonable degree of
medical probability," (1) her medical opinion was that "Hickok-Knight suffered a minor bruise to
understand headaches either; and it's a "there" medical condition. There are lots
of things physicians aren't smart enough to understand, but that's not a reason for
labeling something psychiatric.
IV VRP at 550, 560-61.
17
No. 41008-7-II
her foot as a result of the shopping cart rolling over it at Wal-Mart, that that had healed, and that
there was no diagnosable condition after that"; (2) "[she] did not feel that [Hickok-Knight] fit the
criteria for a diagnosis of CRPS, and [her] opinion is that that condition is fairly controversial and
unclear in any case"; (3) she did not see "any physical basis or objective basis to say that [Hickok-
Knight] is not able to work"; and (4) Hickok-Knight should in fact return to work because
"[r]eturning to normal daily activities, including work, is a very important part of rehabilitating
and recovering from injuries of various types, including chronic pain conditions." V VRP at 707-
08, 752.
6. Dr. Hamm
Wal-Mart's expert psychiatric witness, Dr. Hamm, testified that he had conducted a
"records review" of Hickok-Knight's medical records from when she was "about age ten or so,
onwards through more recently, 2010." V VRP at 867. Dr. Hamm had also reviewed Hickok-
Knight's 2006 deposition testimony and Dr. Silver's "psychological records . . . and his testing" of
Hickok-Knight from her time at the pain clinic. V VRP at 867. Dr. Hamm explained that
psychiatrists rely on medical records, not only to "see what medical problems people have had,"
but also to see "how they adapt to [them], how they respond to [them], how they use the medical
care system, what kind of complaints or difficulties they've had . . . that's important to me as a
psychiatrist in understanding an individual." V VRP at 867.
Dr. Hamm testified that he had diagnosed Hickok-Knight with "somatoform pain
disorder," also known as "pain disorder [with] psychological factors." VI VRP at 868. He
explained:
My opinion is that Hickok-Knight does have what is termed as
psychological based pain disorder, sometimes called somatoform or just a pain
18
No. 41008-7-II
disorder based on psychological factors; and the ideology or cause of this is,
basically, her underlying personality characteristics, the way she copes with things.
Also, she has multiple stressors in her life that cause some difficulty for her that, I
think, are independent of anything that happened on June 24, 2006.
My opinion is that she tends to minimize these other problems that she's
had and focuses on this Ju[ne] 2006 incident as being the cause of the problems.
V VRP at 868. Dr. Hamm further explained that "a lot of factors" went into that diagnosis,
including "her life history" and "medical history":
[Hickok-Knight] utilizes denial which is pushing things out of mind, particularly
stressful things. She is expressing what I call emotional pain or emotional distress
physically as pain, a -- what's called somatization process. . . . I think that's -- is
going on [with Hickok-Knight].
VI VRP at 889-90.
Dr. Hamm then testified about "chronologically, some of the things that [Hickok-
Knight's] had since childhood": (1) When Hickok-Knight was 10 years old, she had complained
of back pain, went to the hospital, and "there[] [was not] that much wrong with her" her response
was "dramatic"; (2) Hickok-Knight had "responded in an excessive way" to some illnesses; (3)
Hickok-Knight had dyslexia in grade school and "kids were mean to her"; (4) Hickok-Knight had
"fake[d]" a seizure when she was 12 years old because she "didn't want to go to school"; (5)
Hickok-Knight was raped when she was 13; (6) in her adolescence, Hickok-Knight had
experienced "menstrual irregularities" and "abdominal discomfort," and was diagnosed with a
"possible ovarian cyst"; and (7) after learning that a friend's mother had meningitis, Hickok-
Knight had gone to the emergency room because she was worried that she, too, had meningitis.
VI VRP at 896-900.
When Wal-Mart asked Dr. Hamm to consider "another hypothetical based on preexisting
interactions with the health care system:"
19
No. 41008-7-II
I'd like you to consider that on January 4th of 1995, [Hickok-Knight] came
to the emergency room in an ambulance and was complaining of severe knee pain
and complaining to the doctor it felt like her kneecap had popped out. There was
no swelling, and the kneecap was normal, and the x-rays were normal. She claims
that she fell on April 2nd of 1996. She was about 17 years old, at this time,
and -- 16 or 17, and she went to [the hospital]. X-rays were normal. She went to
the ER on August 28th of '97, about 18 years old, complained of severe left
abdominal pain.
She, in 2002, had a couple of psychiatric examinations that involved the
separation of divorce with her husband. She was divorced in 2003. She started
work at Wal-Mart on April 23rd of 2003; and about five weeks later, on May 30th
of 2003, she was lifting a can of Power Bait, felt her shoulder pop, was off work
for five and a half months, went back to light duty, transferred back to sporting
goods after that, had a chronic pain situation, and doctors were talking about pain
clinics and so forth, eventually had arthroscopic surgery on 10/15/04, went to the
ER again with a sore throat on 01/11/05; and on 03/15/05 -- let's see, she would be
about -- 03/15/05, she'd be about 24 years old, 23 years old, claims that she injured
the back of her leg when a toilet seat broke, had a one-centimeter abrasion, no
bleeding.
[T]his is on 12/30/07. This is just before she saw Dr. Vu and started
complaining of pain running up and down her leg. She complained -- went to the
ER and was complaining of stabbing chest pains, nine on a scale of zero to ten; and
she was given a narcotic cocktail.
Based on that hypothetical and that scenario of information of interactions
with the health care system and based on your review of her records and the
history that you took, do you have an opinion as to the significant of that?
VI VRP at 901-03. Dr. Hamm replied, "[T]hat's representative of somebody who does
overrespond to sensations in their body. [T]hese are the kind[s] of things in the background of
this woman that would support my diagnosis of pain disorder." VI VRP at 903. Dr. Hamm
further testified that Hickok-Knight "has a psychological borne problem" and is "fully capable of
work[ing]." VI VRP at 931-32.
7. Dr. Silver
Dr. Silver, the pain clinic's psychologist and Hickok-Knight's expert witness, opined that
Hickok-Knight's social history was "significant" because "the extent of someone's stress and their
20
No. 41008-7-II
coping skills affects how vulnerable they are to pain and affects their ability to adjust and cope
with pain." VII VRP at 1168. Dr. Silver also agreed that it is "very important" to learn about
Hickok-Knight's "psychological, traumatic life experiences that have impacted" her. 7 VRP at
1119. Dr. Silver then explained that Dr. Hamm's diagnosis of "pain disorder with . . .
psychological factors" was caused by "her injury and the pain that she experienced afterwards and
the [CRPS] or, you know, whatever pain syndrome ends up being diagnosed." VI VRP at 886;
VII VRP at 1110.
E. Jury Instructions
1. Earning capacity
Hickok-Knight proposed the following jury instruction on damages:
[Y]ou should consider the following past economic damages elements:
1. The reasonable value of necessary medical care, treatment and services received
to the present time.
2. The reasonable value of earnings or earning capacity lost to the present time.
3. The reasonable value of necessary substitute domestic services and nonmedical
expenses that have been required to the present time.
In addition you should consider the following future economic damages elements:
1. The reasonable value of earnings and/or earning capacity, employment and/or
employment opportunities with reasonable probability to be lost in the future.
2. The reasonable value of necessary substitute domestic services and non-medical
expenses that will with reasonable probability be incurred in the future.
CP at 459 (emphasis added).
Wal-Mart submitted a different jury instruction on damages:
You should consider the following past economic damage elements:
1. The reasonable value of necessary health care, treatment, and services received
to the present time;
2. The reasonable value of earnings lost to the present time.
In addition you should consider the following future economic damages:
1. The reasonable value of necessary medical care, treatment, and services with
21
No. 41008-7-II
reasonable probability to be required in the future;
2. The reasonable value of earnings with reasonable probability to be lost in the
future.
CP at 349. Wal-Mart explained, "We . . . took out earning capacity in the past. I think the
definition of earning capacity -- isn't that carried forward, so should it just be the reasonable value
of earnings lost at the present time?" X VRP at 1566.
Hickok-Knight responded:
Your Honor, I'm making a record; and all I'm saying, earning capacity, it's
permanent diminution of the ability to earn money. We have evidence of a
permanent injury established by Dr. Loeser, Dr. Vu; and we also have testimony
that my client could not do the work of a dental assistant based on [Hickok-
Knight's vocational expert witness's] analysis of [Hickok-Knight's] ability to work
and the experience she had. Therefore, there is an impaired earning capacity claim
that you said -- I appreciate the fact that you've said that I can argue [during
closing arguments about] lost earning [capacity], but I don't see how -- what the
problem is or how anyone is being prejudiced by adding earning capacity to that
part of the instruction; and . . . if I'm allowed to argue it, why don't we just put it
in there?
X VRP at 1610-11. Agreeing with Wal-Mart, the trial court gave its proposed instruction.
2. Susceptibility and aggravation
Hickok-Knight also requested jury instructions on susceptibility and "lighting up." CP at
454. Although Wal-Mart submitted an aggravation instruction, it argued,
[W]e don't think either one should come in. There is no testimony, whatsoever,
that this was a dormant condition. We had a condition. We're talking about, now,
the pain disorder based on psychological factors; and there is no testimony,
whatsoever, that she didn't have them. She demonstrated this from the time she
was ten years old up to the months before the accident.
X VRP at 1586. Hickok-Knight argued that the trial court should give the jury both the
susceptibility and the aggravation instructions.
Disagreeing with Hickok-Knight, the trial court ruled:
22
No. 41008-7-II
I'm not going to give either one of these because, quite frankly, I don't think there
has been any testimony from any witness that there was a preexisting condition
that was lit up or made active. I think, based on the case law, you need a lot more
than the speculation that's being offered to me by both sides.
X VRP at 1587-88. The trial court further clarified that it refused to give the "susceptibility" jury
instruction because "[t]here is no testimony on that" either. X VRP at 1588.
F. Verdict and Cost Bill
After more than three weeks of trial, the jury unanimously awarded Hickok-Knight
$6,433.35 in damages ($5,433.35 in past economic damages and $1,000.00 for past and future
non-economic damages). Because Hickok-Knight had declined Wal-Mart's $30,000.00 offer of
judgment, which had been greater than the jury's verdict, Wal-Mart considered itself the
prevailing party and submitted a cost bill for $5,526.17 under RCW 4.84.010.
At the hearing to determine costs, the trial court considered CR 68's language: "If the
judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay
the costs incurred after the making of the offer." (Emphasis added.) RCW 4.84.010(5)'s
apparently conflicting language provides to the "prevailing party":
Reasonable expenses, exclusive of attorneys' fees, incurred in obtaining reports
and records, which are admitted into evidence at trial or in mandatory arbitration in
superior or district court, including but not limited to medical records, tax records,
personnel records, insurance reports, employment and wage records, police
reports, school records, bank records, and legal files[.]
Wal-Mart argued that it did not incur the costs of obtaining medical records and conducting
depositions until trial. Hickok-Knight contended that the trial court should not award Wal-Mart
those costs because Wal-Mart had incurred them before trial and before Hickok-Knight rejected
the offer of judgment. Agreeing with Wal-Mart, the trial court awarded it $5,526.17 in costs,
23
No. 41008-7-II
primarily comprising costs from deposing witnesses in 2008 and the first half of 2009. After
subtracting these costs awarded to Wal-Mart, the total net judgment in favor of Hickok-Knight
was $907.18.
G. Motion for New Trial
Hickok-Knight moved for a new trial, arguing that the trial court had erred by ordering the
"touching of the feet by the jury" and by "the allowance of evidence concerning the medical or
social history." X VRP at 1621-22. In support, she submitted a declaration from the presiding
juror stating, in part, the following:
3. During the course of the trial, the jury was asked or ordered by the
court to touch the feet of [Hickok-Knight], and during that process it was obvious
that [Hickok-Knight] became upset and appeared to be expressing pain and
discomfort to the touch of the jurors.
4. That procedure definitely had an impact on the jurors, and many of
them at the time formed the impression that [Hickok-Knight] was overreacting or
somehow faking her response. Those jurors felt that such a light touch on her foot
could not cause that type of discomfort. This procedure affected the plaintiff's
credibility with the jury.
5. During the course of the trial, [Hickok-Knight's] medical history from
the time she was a small child until shortly before the accident was covered and the
information provided in that medical history led a number of the jurors to believe
that [Hickok-Knight] may have been overreacting by seeking emergency room
treatment for a variety of problems, though it did not appear that any of those
specific problems were bothering her at the time of the accident of June 24, 2006.
6. This medical history and the related testimony also adversely affected
[Hickok-Knight's] credibility with the jury.
CP at 536-37.
Describing the presiding juror's declaration as "vague" and noting that the jury verdict
was unanimous, the trial court denied Hickok-Knight's motion. X VRP at 1632-33. The trial
court further noted:
[Y]ou're not the first tort case that's gone to trial in the last six months that's
come back in here and asked . . . for new trials because they didn't like the verdict;
24
No. 41008-7-II
and there's ample evidence regarding [Hickok-Knight's] credibility, other than the
isolated incident of the foot touching. I mean, there was the surveillance video
Wal-Mart got that was done the same morning where she's filling her car with gas,
moving around the car fairly readily; and a few hours later, she's hobbling in with a
cane to see the medical doctor for the defendant. . . . [S]o I'm going to deny the
motion for a new trial.
X VRP at 1633-34.
Hickok-Knight appeals the jury's damages award, the trial court's award of costs to Wal-
Mart, and the trial court's denial of her motion for a new trial.
ANALYSIS
I. Foot-Touching
Hickok-Knight first argues that the trial court's ordering the jury to touch her feet was
reversible error because it was "a glaring comment on the evidence" and amounted to a prejudicial
"demonstration or experiment." Br. of Appellant at 36. We disagree that the foot-touching order
was a comment on the evidence; but, even assuming, without deciding, that it was an erroneous
demonstration, the error was harmless.
A. No Comment on the Evidence
Hickok-Knight asserts that the trial court's foot-touching order "conveyed to the jury the
court's lack of confidence in the integrity of [Hickok-Knight]'s testimony" about the temperature
of her foot and "was a glaring comment on the evidence." Br. of Appellant at 36. Contrary to
RAP 10.3(a)(6), Hickok-Knight fails to cite any authority supporting her argument that such a
ruling, as opposed to an actual remark about evidence,11 constitutes commentary on the evidence.
11 "To constitute a comment on the evidence, it must appear that the court's attitude toward the
merits of the cause are reasonably inferable from the nature or manner of the questions asked and
the things said." State v. Cerny, 78 Wn.2d 845, 855, 480 P.2d 199 (1971) (emphasis added)
(citing State v. Brown, 31 Wn.2d 475, 197 P.2d 590, 202 P.2d 461 (1948)), overruled on other
25
No. 41008-7-II
12 Furthermore, as Wal-Mart correctly notes, our Supreme Court rejected this
grounds by Cerny v. Washington, 408 U.S. 939, 92 S. Ct. 2873, 33 L. Ed. 2d 761 (1972). Trial
courts have wide discretion to manage their courtrooms and to conduct trials fairly, expeditiously,
and impartially. State v. Johnson, 77 Wn.2d 423, 426, 462 P.2d 933 (1969). We review such
courtroom management decisions, including any alleged commenting on evidence, for abuse of
discretion. Peluso v. Barton Auto Dealerships, Inc., 138 Wn. App. 65, 69, 155 P.3d 978 (2007).
Hickok-Knight shows no such abuse of trial discretion here.
12 Instead, Hickok-Knight relies on State v. Lampshire, 74 Wn.2d 888, 447 P.2d 727 (1969),
contending that "the personal opinion of a trial judge may be conveyed . . . by implication." Br. of
Appellant at 35. But Lampshire involved a verbal remark, rather than evidentiary ruling, when
the trial court responded to the State's objection to testimony by stating, "'Counsel's objection is
well taken. We have been from bowel obstruction to sister Betsy, and I don't see the materiality,
counsel.'" Lampshire, 74 Wn.2d at 891. Our Supreme Court held that although "the remark of
the trial judge was made inadvertently in ruling" on the objection, it "implicitly conveyed to the
jury his personal opinion concerning the worth of defendant's testimony." Lampshire, 74 Wn.2d
at 892. Here, however, Hickok-Knight challenges the trial court's ruling as a comment on the
evidence. Nor does she show that the trial court's opinion on the merits of the cause was
"reasonably inferable" from its ruling, even if arguably it could be characterized as a remark. See
Cerny, 78 Wn.2d at 855-56. Thus, Lampshire does not apply.
26
No. 41008-7-II
reasoning in State v. Jacobsen, 78 Wn.2d 491, 495, 477 P.2d 1 (1970).13 Thus, Hickok-Knight's
argument fails.
B. Harmless Error
Hickok-Knight next argues that the foot-touching order was erroneous demonstrative
evidence. Assuming, without deciding, that this order was error, we hold that any error was
harmless.
We review a trial court's admission of demonstrative evidence for an abuse of discretion.
Jenkins v. Snohomish County Pub. Util. Dist. No. 1, 105 Wn.2d 99, 107, 713 P.2d 79 (1986).
Admission of demonstrative evidence may be harmless "'if the evidence is of minor significance in
reference to the evidence as a whole.'" State v. Hunter, 152 Wn. App. 30, 42, 216 P.3d 421
(2009) (quoting State v. Neal, 144 Wn.2d 600, 611, 30 P.3d 1255 (2001)), review denied, 168
Wn.2d 1008 (2010). Such is the case here.
Hickok-Knight testified that the temperature of her left foot varied; her left foot could
have been any temperature at that time -- the same temperature as her right foot, for example, or
perhaps Hickok-Knight's foot went cold minutes after the jury finished touching it. She had
already testified that her left foot was changing temperature as she was on the witness stand,
13 In Jacobsen, the defense counsel objected to certain testimony and the trial court excused the
jury. Jacobsen, 78 Wn.2d at 494. The trial court also ordered the jury to take with them 11
photographs depicting the scene of an automobile accident, which the State had introduced as
evidence. Jacobsen, 78 Wn.2d at 494. The Jacobsen defendant argued that trial court's order
"caused the jury to believe that the court intended these photographs to be considered above all
other physical and narrative evidence." Jacobsen, 78 Wn.2d at 494. Our Supreme Court
disagreed, holding that the order "did not convey to the jury, either directly or by implication, any
suggestion as to the court's opinion or feelings as to the credibility, sufficiency or weight of the
photographic evidence." Jacobsen, 78 Wn.2d at 495. We follow Jacobsen here.
27
No. 41008-7-II
prompting one juror to ask whether he could touch it. Any error in allowing the jurors to touch
Hickok-Knight's feet was harmless because it was of "minor significance in reference to the
evidence as a whole." Hunter, 152 Wn. App. at 42 (internal quotation marks omitted).
Wal-Mart's liability was not before the jury because a pretrial ruling had established that
Wal-Mart was liable as a matter of law. The only issues remaining for the jury to decide were
causation and damages. The jury found in favor of Hickok-Knight on the causation issue; thus,
she bears the burden of showing that, within a "'reasonable probability,'" the amount of damages
that the jury awarded would have been "materially affected" had the foot touching not occurred.
Brundridge v. Fluor Fed. Serv., Inc., 164 Wn.2d 432, 446, 191 P.3d 879 (2008) (quoting State v.
Halstien, 122 Wn.2d 109, 127, 857 P.2d 270 (1993)); Saldivar v. Momah, 145 Wn. App. 365,
401, 186 P.3d 1117 (2008). This is a difficult burden for Hickok-Knight to satisfy.
"Determination of the amount of damages is within the province of the jury, and courts are
reluctant to interfere with a jury's damage award when fairly made." Palmer v. Jensen, 132
Wn.2d 193, 197, 937 P.2d 597 (1997) (citation omitted). If damages are proportionate to and
within the range of evidence, "'they will not be found to have been motivated by passion or
prejudice.'" Hoskins v. Reich, 142 Wn. App. 557, 572, 174 P.3d 1250 (quoting Wooldridge v.
Woolett, 96 Wn.2d 659, 668, 638 P.2d 566 (1981)), review denied, 164 Wn.2d 1014 (2008).
When we view the record as a whole, the record supports the jury's damages award.
After the jury touched Hickok-Knight's foot, the trial continued for another nearly three
weeks, during which the jury (1) watched 2008 and 2009 surveillance tapes showing Hickok-
Knight walking, using a shovel in her yard, and loading bags of groceries into her car, all without
obvious physical impairment; and (2) heard both Hickok-Knight's and Wal-Mart's expert
28
No. 41008-7-II
witnesses (Drs. Loeser and Wray, respectively) testify that CRPS was as "murky" of a condition
as headaches, and was "fairly controversial and unclear in any case." IV VRP at 550; V VRP at
708. These experts' testimonies further rendered the foot-touching order harmless because a
reasonable jury could have inferred that (1) Hickok-Knight did not suffer from CRPS; (2) Hickok-
Knight was manifesting her "emotional pain or emotional distress" as physical pain; and (3) this
"somatization process," and not CRPS or the 2006 foot injury, was behind Hickok-Knight's
complaints of pain. VI VRP at 889-90.
We further note that the jury's damages award of $6,433.35 was reasonable in light of
Hickok-Knight's employment history. For example, a reasonable jury could have concluded that
she was unable to maintain a job as a dental assistant for reasons other than her 2006 foot injury,
namely, her lack of competency for this type of work. Thus, we decline to hold that, within a
"reasonable probability," the amount of damages that the jury awarded "would have been
materially affected" had the foot touching not occurred. Brundridge, 164 Wn.2d at 446 (internal
quotation marks omitted); Saldivar, 145 Wn. App. at 401.
Moreover, independent of the foot touching incident, the jury had ample evidence on
which to base its damages award in an amount far below that which Hickok-Knight sought but
did not prove. This evidence included: (1) the surveillance video showing an absence of any
visible impairment of or injury to her left foot; (2) testimony from Dr. Vu, Hickok-Knight's own
doctor and witness, that Hickok-Knight did not experience pain symptoms when her ankle was
touched while she was distracted; (3) testimony about Hickok-Knight's employment history of
inadequate performance and terminations; and (4) expert witness testimony about the
controversial nature of the CRPS diagnosis. Because Hickok-Knight has not shown prejudice
29
No. 41008-7-II
resulting from the foot touching incident, we hold that any error was harmless.14
II. Evidentiary Rulings
Hickok-Knight next argues that the trial court erred by admitting testimony about Hickok-
Knight's medical and social histories and by allowing Dr. Hamm to testify.15 Hickok-Knight's
contentions fail.
A. Standard of Review
We review a trial court's evidentiary rulings for abuse of discretion. Minehart v. Morning
Star Boys Ranch, Inc., 156 Wn. App. 457, 463, 232 P.3d 591, review denied, 169 Wn.2d 1029
(2010). A trial court abuses its discretion if the trial court based its decision on untenable grounds
or reasons or the decision was manifestly unreasonable. Yousoufian v. Office of Ron Sims, 168
Wn.2d 444, 458, 229 P.3d 735 (2010). A decision is manifestly unreasonable if the trial court,
"'despite applying the correct legal standard to the supported facts, adopts a view that no
reasonable person would take.'" Yousoufian, 168 Wn.2d at 459 (internal quotation marks
omitted) (quoting Mayer v. Sto Indus., Inc., 156 Wn.2d 677, 684, 132 P.3d 115 (2006)). We
leave credibility determinations to the trier of fact; such determinations are not subject to appellate
review. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). We review questions of
law de novo. State v. Womac, 160 Wn.2d 643, 649, 160 P.3d 40 (2007).
14 We do not consider the presiding juror's affidavit that Hickok-Knight submitted in support of
her motion for a new trial because "juror deliberations must remain secret." State v. Elmore, 155
Wn.2d 758, 770-71, 123 P.3d 72 (2005).
15 The record does not support Wal-Mart's assertion that Hickok-Knight failed to preserve these
evidentiary issues for appeal. On the contrary, Hickok-Knight repeatedly objected to testimony
about her medical and social histories, as well as to Dr. Hamm's testimony.
30
No. 41008-7-II
B. Medical and Social Histories
Hickok-Knight argues that the trial court erred by allowing Drs. Loeser, Hamm, and
Silver to testify about her medical and social histories, which she contends were inadmissible.
Wal-Mart counters that "[a] party is entitled to cross-examine experts regarding the facts and data
underlying their opinions, regardless of whether those underlying facts and data are themselves
admissible in evidence." Br. of Resp't at 34. Wal-Mart is correct.
ER 703, which governs this evidentiary issue, provides:
The facts or data in the particular case upon which an expert bases an opinion or
inference may be those perceived by or made known to the expert at or before the
hearing. If of a type reasonably relied upon by experts in the particular field in
forming opinions or inferences upon the subject, the facts or data need not be
admissible in evidence.
(Emphasis added.) ER 703 "is not designed to allow a witness to 'summarize and reiterate all
manner of inadmissible evidence.'" Deep Water Brewing, LLC v. Fairway Res. Ltd., 152 Wn.
App. 229, 275, 215 P.3d 990 (2009) (quoting State v. Martinez, 78 Wn. App. 870, 880, 899 P.2d
1302 (1995), abograted on other grounds by State v. Kinneman, 155 Wn.2d 272, 288, 119 P.3d
350 (2005)). "But the trial court may allow the admission of hearsay evidence and otherwise
inadmissible facts for the limited purpose of showing the basis of the expert's opinion."16 Deep
16 As our Supreme Court has explained:
[I]f an expert states the ground upon which his opinion is based, his explanation is
not proof of the facts which he says he took into consideration[.] His explanation
merely discloses the basis of his opinion in substantially the same manner as if he
had answered a hypothetical question. It is an illustration of the kind of evidence
which can serve multiple purposes and is admitted for a single, limited purpose
only.
Group Health Co-op. of Puget Sound, Inc. v. Dep't of Revenue, 106 Wn.2d 391, 400, 722 P.2d
787 (1986) (internal citations omitted) (quoting State v. Wineberg, 74 Wn.2d 372, 382, 444 P.2d
787 (1968)).
31
No. 41008-7-II
Water Brewing, 152 Wn. App. at 275 (citing State v. Wineberg, 74 Wn.2d 372, 384, 444 P.2d
787 (1968)).
Division One's opinion in DeHaven v. Gant is instructive. DeHaven complained of pain
following surgery, subsequently underwent a personality test at a pain clinic, and eventually sued
the doctors and the hospital. DeHaven v. Gant, 42 Wn. App. 666, 667-68, 713 P.2d 149, review
denied, 105 Wash.2d 1015 (1986). During trial, the defendants' expert witness testified about the
results of DeHaven's personality test, which she contended was hearsay and prejudicial.
DeHaven, 42 Wn. App. at 668, 672-73. On appeal, DeHaven argued that the trial court had erred
in allowing the defendants' expert to opine about her medical condition, which the expert had
based, in part, on her personality test. DeHaven, 42 Wn. App. at 672. Disagreeing, Division One
of our court held that ER 703 permitted the expert "to testify based upon the test
results" -- regardless of the admissibility of the underlying test itself -- because the expert "testified
that the exhibits he reviewed for purposes of his testimony were those reasonably relied upon by
physicians in the diagnosis and treatment of patients." DeHaven, 42 Wn. App. at 672.
Similarly here, Hickok-Knight's medical and social histories were the type of evidence
"reasonably relied upon by experts in the particular field[s]" of Dr. Loeser (neurological surgery
and anesthesiology), Dr. Hamm (psychiatry), and Dr. Silver (psychology). ER 703. Dr. Loeser
testified that his treating a patient involves obtaining the patient's medical history; and he agreed
that it was "valuable" to look at Hickok-Knight's medical history. IV VRP at 595-96. Dr. Hamm
testified that psychiatrists rely on medical records, not only to "see what medical problems people
have had," but also "how they adapt to [them], how they respond to [them], how they use the
medical care system, what kind of complaints or difficulties they've had, . . . that's important to
32
No. 41008-7-II
me as a psychiatrist in understanding an individual." V VRP at 867. Similarly, Dr. Silver testified
that Hickok-Knight's social history was "significant" because "the extent of someone's stress and
their coping skills affects how vulnerable they are to pain and affects their ability to adjust and
cope with pain." VII VRP at 1168. Dr. Silver agreed that it was "very important" to learn about
Hickok-Knight's "psychological, traumatic life experiences that have impacted" her. VII VRP at
1119.
We hold that the trial court did not err in permitting Dr. Loeser, Dr. Hamm, and Dr. Silver
to testify about Hickok-Knight's medical and social histories, which were "of a type reasonably
relied upon by experts in the particular field[s] in forming opinions or inferences upon the subject"
at issue. ER 703.
C. Dr. Hamm's Testimony
Hickok-Knight next argues that the trial court erred by allowing Dr. Hamm's testimony
about her CRPS treatment because (1) he based it "solely" on Hickok-Knight's past medical and
social histories, which was "highly prejudicial"; (2) Dr. Hamm "has no special knowledge of
CRPS and d[id] not even purport to address CPRS in his report" and, therefore, was not qualified
to testify that "the treatment [Hickok-Knight] received for CRPS was not appropriate"; and (3)
"Dr. Hamm's diagnosis of [Hickok-Knight's] 'psychological borne problem'" was contrary to
"evidence that there were physical and organic findings of CRPS reported by her treating
physician Dr. Vu." Br. of Appellant at 41-42. This argument also fails.
First, as we have already explained, under ER 703, Dr. Hamm could testify about Hickok-
Knight's medical and social histories in connection with rendering his expert opinion about the
appropriateness of Hickok-Knight's treatment, regardless of whether these underlying histories
33
No. 41008-7-II
were themselves admissible. Second, Dr. Hamm is a board-certified medical doctor with
additional training in psychiatry who has treated, diagnosed, and evaluated patients, including
those with CRPS, for several decades.17 And ER 702 provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education, may testify thereto
in the form of an opinion or otherwise.
Such was the case here.
Third, Hickok-Knight does not explain how the trial court's permitting Dr. Hamm (Wal-
Mart's witness) to testify that Hickok-Knight had a "psychological borne problem" was erroneous
simply because it contradicted Dr. Vu's (Hickok-Knight's witness) testimony that Hickok-Knight
suffered from CRPS. VI VRP at 931. "[E]vidence is tested by the adversarial process within the
crucible of cross-examination, and adverse parties are permitted to present other challenging
evidence." Anderson v. Akzo Nobel Coatings, Inc., 172 Wn.2d 593, 607, 260 P.3d 857 (2011)
(citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 596, 113 S. Ct. 2786, 125 L. Ed. 2d
469 (1993)). Accordingly, we hold that the trial court did not abuse its discretion in permitting
Dr. Hamm to testify.
III. No Trial Court Bias
Next, Hickok-Knight contends that the trial court "expressed bias" toward her lawsuit and
violated the appearance of fairness doctrine. Br. of Appellant at 43. Wal-Mart responds that
Hickok-Knight did not preserve this issue for appeal because she failed to argue bias or to move
17 In contrast, Hickok-Knight provides no authority or proof that Dr. Hamm lacked the requisite
"knowledge, skill, experience, training, or education" to opine on the appropriateness of Hickok-
Knight's treatment for CRPS. ER 702.
34
No. 41008-7-II
for recusal below. Even assuming, without deciding, that Hickok-Knight may raise this issue for
the first time on appeal, her argument fails.
We presume that a trial court "perform[ed] its functions regularly and properly without
bias or prejudice"; the party claiming bias or prejudice "must support the claim with evidence of
the trial court's actual or potential bias." Bus. Servs. of Am. II, Inc. v. WaferTech LLC, 159 Wn.
App. 591, 600, 245 P.3d 257 (2011), aff'd, (No. 85654-1), 2012 WL 1356265, 274 P.3d 1025
(Wash. Apr 19, 2012). "The test to determine whether a judge's impartiality might reasonably be
questioned is an objective one that 'assumes that a reasonable person knows and understands all
the relevant facts.'" Smith v. Behr Process Corp., 113 Wn. App. 306, 340, 54 P.3d 665 (2002)
(internal quotation marks omitted) (quoting Sherman v. State, 128 Wn.2d 164, 206, 905 P.2d 355
(1995)). Hickok-Knight fails to provide any evidence of bias here.
Hickok-Knight asserts that the trial court violated the appearance of fairness doctrine by
(1) describing CRPS as a "murky" diagnosis and stating that "there were no organic or objective
findings to justify [Hickok-Knight's] complaints of pain"; (2) allowing Wal-Mart "to continually
bring up [Hickok-Knight's] prior injuries and medical conditions throughout the trial"; (3) "clearly
indicat[ing] to the jury it [the trial court] did not believe [Hickok-Knight's] complaints of pain
were valid" when it allowed the jury to touch her foot; and (4) commenting that "'we haven't
even established whether or not [Hickok-Knight] suffers from the touch'" in sustaining Wal-
Mart's objection to Hickok-Knight's counsel's statement during Dr. Vu's direct examination. Br.
of Appellant at 43-45. None of these circumstances show trial court bias.
A. "Murky" CRPS
The trial court did not label CRPS "murky"; rather, in discussing the jury instructions
35
No. 41008-7-II
outside the jury's presence, the trial court stated:
Well, I know from prior cases where -- that medical testimony is speculation or
conjecture, then a directed verdict should be given for the defendants. This is a
case where even some of the plaintiff's medical doctors have testified that it is a
murky and uncertain area when you're suffering from the [CRPS] where there are
no organic or objective findings, so I think it is an appropriate one regarding the
medical testimony because I think even [Hickok-Knight's] witnesses testified that
it is not a definitive area of treatment at this point and that -- Dr. Vu, himself, used
the word "murky";[18] so, I mean, that could be, [m]ay have, could have, or possibly
did; and I think that there is, you know, evidence here where a jury could find that
it's simply speculation whether or not this kind of CRPS even exists.
X VRP at 1561 (emphasis added). The trial court did use the term "murky" in a later context,
nearly two months after the jury delivered its verdict. During oral argument on Hickok-Knight's
motion for a new trial, the trial court stated:
Now, you're not the first tort case that's gone to trial in the last six months
that's come back in here and asked . . . for new trials because they didn't like the
verdict; and there's ample evidence regarding your client's credibility, other than
the isolated incident of the foot touching. I mean . . . even one of her own doctors,
the one that did the nerve conduction, basically said that this was a very murky
diagnosis.
18 The record does not reflect that Dr. Vu used the term "murky." On cross-examination,
however, Wal-Mart asked Dr. Vu, "There's been no published paper. There's been no scientific
documentation, this is what causes [CRPS]. There's some theories. There's some ideas.
Medical science really doesn't know the cause?" Dr. Vu responded, "Yeah." IV VRP at 686-87.
Dr. Vu also called CRPS a "tough diagnosis." IV VRP at 677.
Dr. Loeser, Hickok-Knight's witness, testified that "[h]eadaches are every bit as murky as
CRPS," IV VRP at 550, and further explained:
[CRPS] is not a psychiatric or psychological condition. It is a medical condition
whose mechanism of ideology we don't understand completely, but we don't
understand headache either; and it's a "there" medical condition. There are lots of
things physicians aren't smart enough to understand, but that's not a reason for
labeling something psychiatric.
IV VRP at 560-61. And when Wal-Mart asked Dr. Wray, Wal-Mart's expert neurologist witness,
whether she believed that CRPS is a "murky and controversial condition," Dr. Wray replied,
"Yes." V VRP at 779. These comments were not, however, from the trial court. Furthermore,
Hickok-Knight did not object to them below.
36
No. 41008-7-II
X VRP at 1633-34 (emphasis added). Again, not only was the jury not present either, but also
this colloquy occurred two months after the jury rendered its verdict.
In both instances when the trial court used the word "murky," it was simply echoing the
testimonies of various expert witnesses, including Dr. Loesner and Dr. Vu (both Hickok-Knight's
witnesses); this echoing did not reflect "actual or potential bias." Bus. Servs. of Am. II, 159 Wn.
App. at 600. Moreover, Hickok-Knight fails to persuade us that the trial court could have
violated the appearance of fairness doctrine simply by describing witness testimony outside the
jury's presence.
B. Foot Touching; Hickok-Knight's Medical and Social Histories
Hickok-Knight also contends that the trial court expressed bias by ordering the jury to
touch Hickok-Knight's left foot and by permitting various expert witnesses to testify about
Hickok-Knight's medical and social histories. As we have already held earlier in this opinion,
these trial court rulings were either not error at all or harmless error.
Hickok-Knight also asserts that the trial court expressed bias when it stated, out of the
jury's presence, "'[W]e haven't even established whether or not [Hickok-Knight] suffers from the
touch'" of her foot by the jurors. Br. of Appellant at 44-45. Again, Hickok-Knight fails to
persuade us that the trial court's "impartiality may be reasonably questioned." Behr Process
Corp., 113 Wn. App. at 340.
IV. Jury Instructions
Next, Hickok-Knight argues that the trial court erred by removing language about earning
capacity from the damages instruction and by refusing to give at least one of the requested
susceptibility, lighting up, and aggravation instructions. As she properly notes, "'Impairment of
37
No. 41008-7-II
earning capacity is different from loss of wages. It is the permanent diminution of the ability to
earn money.'" Reply Br. of Appellant at 21 (quoting 6 Washington Practice: Washington Pattern
Jury Instructions: Civil 30.08.01, at 308 (2011)).19 Thus, because earning capacity is different
from lost wages, the trial court should have instructed the jury as to both. Nevertheless, her
argument fails because, even if the jury instructions were erroneous, Hickok-Knight has failed to
establish that these errors caused her any prejudice.
A. Standard of Review
If the challenge on appeal goes to the language of a jury instruction, as opposed to the
exclusion of an entire instruction, we review the instruction de novo, evaluating the jury
instruction "'in the context of the instructions as a whole.'" In re Pers. Restraint of Hegney, 138
Wn. App. 511, 521, 158 P.3d 1193 (2007) (quoting State v. Benn, 120 Wn.2d 631, 644-45, 845
P.2d 289 (1993)). When a trial court refuses to give a jury instruction because of a factual
dispute, we review the refusal for an abuse of discretion. State v. Walker, 136 Wn.2d 767, 771-
72, 966 P.2d 883 (1998). "Jury instructions are sufficient when they allow counsel to argue their
theories of the case, do not mislead the jury, and when taken as a whole, properly inform the jury
of the law to be applied." Thompson v. King Feed & Nutrition Serv., Inc., 153 Wn.2d 447, 453,
105 P.3d 378 (2005). "Jury instructions are sufficient if they are readily understood and are not
misleading to the ordinary mind." State v. Sublett, 156 Wn. App. 160, 183, 231 P.3d 231, review
granted, 170 Wn.2d 1016 (2010) (citing State v. Dana, 73 Wn.2d 533, 537, 439 P.2d 403
(1968)). "Even if an instruction may be misleading, it will not be reversed unless prejudice is
19 Citing Kelley v. Great N. Ry. Co., 59 Wn.2d 894, 371 P.2d 528 (1962); Murray v. Mossman,
52 Wn.2d 885, 329 P.2d 1089 (1958).
38
No. 41008-7-II
shown by the complaining party." State v. Aguirre, 168 Wn.2d 350, 364, 229 P.3d 669 (2010)
(citing Keller v. City of Spokane, 146 Wn.2d 237, 249, 44 P.3d 845 (2002)).
Here, we review the language of the trial court's damages instruction under the de novo
standard to determine whether it permitted Hickok-Knight to argue her theory of the case. We
also review the trial court's refusal to give the susceptibility and aggravation instructions for an
abuse of discretion: A trial court abuses its discretion in refusing to give an instruction where it
adopted a view that "no reasonable person would have taken." Kim v. Moffett, 156 Wn. App.
689, 697, 234 P.3d 279 (2010); Walker, 136 Wn.2d at 771-72. In neither instance do we find
reversible error.
B. Earning Capacity
Hickok-Knight argues that the damages jury instruction 11 did not permit her to argue her
"theory of recovery on the basis of impaired earning capacity." Br. of Appellant at 47. More
specifically, she contends that the trial court's damages instruction prevented her from seeking
"future damages based on her inability to work as a dental assistant versus an office assistant."
Reply Br. of Appellant at 21. We disagree. It was the evidence, not the instructions, that led to
the jury's low damages verdict. From Hickok-Knight's employment records from her dental
assistant position a reasonable jury could infer that (1) Hickok-Knight's inability to work as a
dental assistant flowed from things other than her foot injury in 2006, such as her personality or
incompetencies; and (2) her 2006 foot injury at Wal-Mart, therefore, did not limit her lifetime
earning capacity. We hold that Hickok-Knight has not shown that the language of the damages
instruction prevented her from arguing and persuading the jury about her theory of the case or
otherwise prejudiced her. See Torno v. Hayek, 133 Wn. App. 244, 253, 135 P.3d 536 (2006).
39
No. 41008-7-II
C. Susceptibility and Aggravation Instructions
Out of a nearly three-week trial, only brief parts of Drs. Silver's and Hamm's entire
testimonies arguably supported susceptibility and aggravation instructions. The trial court refused
to give Hickok-Knight's proposed susceptibility and lighting up instructions, numbers 6 and 8,
concerning a "bodily or mental condition that was not causing pain or disability" existing before
her 2006 foot injury, which (1) made her "more susceptible to injury than a person in normal
health" (susceptibility), or (2) "was lighted up or made active" (lighted up) by her foot injury.20
CP at 452, 454. The trial court refused these instructions because it believed that there was no
testimony to support giving them.
Contrary to the trial court's belief, Dr. Silver testified that Hickok-Knight had "a history
of having a psychological traumatic event as a teenager" and that people who have suffered from
traumatic events "are more vulnerable" and "don't cope as well with injuries and pain." VII VRP
at 1119-20. The questions before us, however, are whether the supporting facts "[rose] above
speculation and conjecture," Board of Regents of the Univ. of Wash. v. Frederick & Nelson, 90
20 Hickok-Knight's proposed susceptibility instruction read in full:
If you find that:
(1) before this occurrence the plaintiff had a bodily or mental condition that
was not causing pain or disability; and
(2) the condition made the plaintiff more susceptible to injury than a person
in normal health,
then you should consider all the injuries and damages that were proximately caused
by the occurrence, even though those injuries, due to the pre-existing condition,
may have been greater than those that would have been incurred under the same
circumstances by a person without that condition.
There may be no recovery, however, for any injuries or disabilities that
would have resulted from natural progression of the pre-existing condition even
without this occurrence.
CP at 454.
40
No. 41008-7-II
Wn.2d 82, 86, 579 P.3d 246 (1978), and whether this evidence was substantial enough to require
the trial court to give the requested instruction. Stiley v. Block, 130 Wn.2d 486, 925 P.2d 194
(1996). In light of this scant evidence, we cannot say that the trial court abused its discretion in
refusing to give the susceptibility instruction.
Wal-Mart's proposed aggravation instruction concerned a "pre-existing bodily or mental
condition that was causing pain or disability," which pain or disability Hickok-Knight's 2006 foot
injury "aggravated."21 CP at 463. The trial court similarly refused this instruction because the
evidence did not support giving it. Although Dr. Hamm testified that he had diagnosed Hickok-
Knight with "somatoform pain disorder," also known as "pain disorder with psychological
factors," the trial court was correct that the testimony did not show that this pain disorder was
aggravated by her foot injury. VI VRP at 886. Accordingly, we hold that the trial court did not
abuse its discretion in refusing to give this aggravation instruction.
V. Motion for New Trial
Hickok-Knight also argues that, based on the trial court's ordering the jury to touch her
foot and admitting testimony about her medical and social histories, the trial court erroneously
21 Wal-Mart's "proposed" aggravation instruction read in full:
If you find that:
(1) before this occurrence the Plaintiff had a pre-existing bodily or mental
condition that was causing pain or disability, and
(2) because of this occurrence the condition or the pain or the disability was
aggravated,
then you should consider the degree to which the condition or the pain or disability
was aggravated by this occurrence.
However, you should not consider any condition or disability that may have
existed prior to this occurrence, or from which the plaintiff may now be suffering,
that was not caused or contributed to by this occurrence.
CP at 463.
41
No. 41008-7-II
denied her CR 59(a) motion for a new trial. This argument also fails.
We review for abuse of discretion a trial court's denial of CR 59(a) motion for a new trial.
Collins v. Clark County Fire Dist. No. 5, 155 Wn. App. 48, 81, 231 P.3d 1211 (2010). "The test
for determining such an abuse of discretion is whether 'such a feeling of prejudice [has] been
engendered or located in the minds of the jury as to prevent [the] litigant from having a fair trial.'"
Collins, 155 Wn. App. at 81 (quoting Aluminum Co. of Am. v. Aetna Cas. & Sur. Co., 140
Wn.2d 517, 537, 998 P.2d 856 (2000)). As we have already held, the foot touching order was
harmless, if error, and admission of testimony about Hickok-Knight's medical and social histories
was not error at all. Hickok-Knight having failed to show the lack of a fair trial or prejudicial
error in the trial court's denial of her motion for a new trial, we affirm.
VI. Costs and Attorney Fees
A. Costs Award to Wal-Mart Below
Lastly, Hickok-Knight argues that the trial court erred by awarding Wal-Mart costs
incurred before it made an offer of judgment. To the extent that the trial court's costs award to
Wal-Mart included such pre-offer costs, we agree.
The standard of review for an award of costs involves a two-step process. First, we
review de novo whether a statute, contract, or equitable theory authorizes the award. Second, if
such authority exists, we review for abuse of discretion the amount of the award. Estep v.
Hamilton, 148 Wn. App. 246, 259, 201 P.3d 331 (2008) (internal citations omitted).
Under CR 68, an offeree must "pay the costs incurred after the making of the offer" if the
judgment that the offeree obtains is less than the offer. (Emphasis added.) Wal-Mart asserted,
and the trial court apparently agreed, that under RCW 4.84.010(5), a party incurs the costs of
42
No. 41008-7-II
obtaining reports and records when the party has the reports and records admitted into evidence
at trial; therefore, Wal-Mart incurred the costs of obtaining reports and records "after the making
of the offer," for CR 68 purposes because, according to its reading of RCW 4.84.010(5), Wal-
Mart did not incur those costs until it offered and the trial court admitted the reports and records
trial. We disagree.
RCW 4.84.010(5) provides a prevailing party with "[r]easonable expenses . . . incurred in
obtaining reports and records, which are admitted into evidence at trial." (Emphasis added.) The
prevailing party incurs the costs when it "obtain[s]" the reports and records, not when the party
has them admitted into evidence at trial. The clause "which are admitted into evidence at trial" is
a restrictive clause that limits the reports and records for which the prevailing party may be
reimbursed; the clause does not define the moment at which the statute deems that the prevailing
party actually incurs the costs for those reports and records. More specifically, the clause does
not state that such costs are deemed incurred when admitted at trial; rather, it merely limits cost
reimbursement to those reports and records ultimately used and actually admitted at trial.
We hold that the plain language of RCW 4.84.010(5) did not authorize the trial court's
award of costs to Wal-Mart for expenses incurred before its offer of judgment to Hickok-Knight,
including expenses for depositions and medical records that Wal-Mart obtained before its offer of
judgment (though eventually offered into evidence at trial). Rather, Wal-Mart incurred these
costs at the time it obtained these depositions and records, before its offer, not when it had them
admitted into evidence at trial. Accordingly, we vacate the trial court's cost award to Wal-Mart
and remand to the trial court to recalculate this award consistent with this opinion.
B. Attorney Fees on Appeal
43
No. 41008-7-II
Hickok-Knight requests attorney fees on appeal. But, contrary to RAP 10.5(a)(6), she
fails to provide argument and citation to authority in support of this request. Instead, she presents
only a "'bald request for attorney fees'" on appeal, which is insufficient. Hudson v. Hapner, 170
Wn.2d 22, 33, 239 P.3d 579 (2010) (quoting Wilson Court Ltd. P'ship. v. Tony Maroni's, Inc.,
134 Wn.2d 692, 710 n.4, 952 P.2d 590 (1998)). Accordingly, we deny her request for attorney
fees on appeal.
We vacate the trial court's costs award to Wal-Mart and remand with instructions to
recalculate costs. We affirm the trial court on all other grounds.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it
is so ordered.
Hunt, J.
We concur:
Armstrong, J.
Johanson, A.C.J.
44
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