Coogan v. Genuine Parts Co. ( 2021 )

FILE THIS OPINION WAS FILED
FOR RECORD AT 8 A.M. ON
IN CLERK’S OFFICE JULY 8, 2021
SUPREME COURT, STATE OF WASHINGTON
JULY 8, 2021
ERIN L. LENNON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
GERRI S. COOGAN, the spouse of JERRY D.
COOGAN, deceased, and JAMES P. NO. 98296-1
SPURGETIS, solely in his capacity as the
Personal Representative of the Estate of
JERRY D. COOGAN, Deceased,
Petitioners,
vs.
Filed: July 8, 2021
BORG-WARNER MORSE TEC INC., (sued
individually and as successor-in-interest to
BORG-WARNER CORPORATION);
CATERPILLAR GLOBAL MINING, LLC
(sued individually and as a successor-in-
interest to BUCYRUS INTERNATIONAL
f/k/a BUCYRUS-ERIE CO.); CERTAINTEED
CORPORATION; DANA COMPANIES LLC
(sued individually and as successor-in-interest
to VICTOR GASKET MANUFACTURING
COMPANY); DEERE & COMPANY (d/b/a
JOHN DEERE: FMC CORPORATION (d/b/a
LINK-BELT Cranes and Heavy Construction
Equipment); FORMOSA PLASTICS
CORPORATION U.S.A (sued individually and
as parent, alter ego and successor-in-interest to
J-M MANUFACTURING COMPANY and to
J-M A/C PIPE CORPORATION);
HOLLINGSWORTH & VOSE COMPANY;
HONEYWELL INTERNATIONAL, INC.
f/k/a ALLIED-SIGNAL, INC. (sued
individually and as successor-in-interest to
BENDIX CORPORATION); J-M
Coogan v. Borg-Warner Morse Tec Inc., et al., No. 98296-1
MANUFACTURING COMPANY, INC. (sued
individually and as parent and alter ego to J-M
A/C PIPE CORPORATION); KAISER
GYPSUM COMPANY, INC.; LINK-BELT
CONSTRUCTION EQUIPMENT
COMPANY, L.P., LLLP; NORTHWEST
DRYER & MACHINERY CO.;
OFFICEMAX, INCORPORATED (f/k/a
BOISE CASCADE CORPORATION);
PARKER-HANNIFIN CORPORATION;
PNEUMO ABEX LLC (sued as successor-in-
interest to ABEX CORPORATION);
SABERHAGEN HOLDINGS, INC. (sued as
successor-in-interest to THE BROWER
COMPANY); STANDART MOTOR
PRODUCTS, INC. d/b/a EIS; SPX
CORPORATION (sued individually and as
successors-in-interest to UNITED DOMINION
INDUSTRIES LIMITED f/k/a AMCA
International Corporation, individually and as
successor in interest to Desa Industries Inc.
and/or Insley Manufacturing as well as
Koehring Company, individually and as
successor in interest to Schield Bantam
Company); TEREX CORPORATION d/b/a
Koehring Company individually and as
successor-in-interest to Schield Bantam
Company; and WELLONS, INC.,
Defendants,
GENUINE PARTS COMPANY d/b/a
NATIONAL AUTOMOTIVE PARTS
ASSOCIATION (a/k/a NAPA), and NATIONAL
AUTOMOTIVE PARTS ASSOCIATION,
Respondents.
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Coogan v. Borg-Warner Morse Tec Inc., et al., No. 98296-1
STEPHENS, J.—Doy Coogan died of peritoneal mesothelioma after years of
asbestos exposure through his automotive repair work and excavation business. A
jury unanimously found Genuine Parts Company (GPC) and National Automotive
Parts Association (NAPA) liable for Coogan’s wrongful death and entered an $81.5
million verdict for his family and estate. GPC and NAPA moved for a new trial or
alternatively a remittitur of damages, which the trial court denied.
The Court of Appeals reversed the trial court in part and vacated the jury’s
damages award. Though it rejected claims for a new trial premised on alleged
misconduct by plaintiff’s counsel, it concluded that the trial court erred by excluding
one of GPC and NAPA’s expert witnesses and that the jury’s award was excessive.
Specifically, the Court of Appeals rejected the jury’s award of noneconomic
damages in favor of its own “necessarily . . . subjective” determination that the
amount of damages was “so excessive that it shock[ed] the court’s conscience.”
Coogan v. Borg-Warner Morse Tec Inc., No. 51253-0-II, slip op. at 26, 25 (Wash.
Ct. App. Feb. 19, 2020) (unpublished),
https://www.courts.wa.gov/opinions/pdf/D2%2051253-0-
II%20Unpublished%20Opinion.pdf.
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We granted review to address the appropriate standards for reviewing posttrial
motions to set aside jury verdicts. While appellate review serves an essential
purpose in safeguarding the integrity of the jury process, it must remain limited.
Here, the Court of Appeals overstepped its limited role and inappropriately
substituted its own judgment for that of the trial court and, most importantly, the
jury. Accordingly, we reverse the Court of Appeals and reinstate the jury’s verdict
in full.
FACTS AND PROCEDURAL HISTORY
Coogan spent decades working on cars and repairing the industrial equipment
used in his excavation business. Throughout that time, Coogan purchased brakes,
clutches, and other asbestos-containing parts distributed by GPC and sold in local
NAPA stores. In 2015, as a result of cumulative exposure to asbestos, Coogan fell
gravely ill.
Coogan was soon diagnosed with malignant mesothelioma in his peritoneum
that metastasized to other parts of his body. Tumors developed in his abdomen,
diaphragm, and both lungs. The tumors caused fluid to build up in ascites, putting
painful pressuring on Coogan’s internal organs and making it difficult for him to
breathe. To relieve that pressure, doctors had to drain fluid out of Coogan’s
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Coogan v. Borg-Warner Morse Tec Inc., et al., No. 98296-1
abdomen every week. Eventually, they had to place a catheter in Coogan’s chest to
drain fluid from his lungs even more frequently. Coogan’s tumors also obstructed
his bowels, leading to anorexia and malnutrition. Coogan’s body began to
deteriorate from a lack of nutrients. He developed open wounds on his body. His
lungs collapsed. His kidneys failed. Unable to eat, drink, or breathe without pain,
Coogan died six months after he first sought medical attention. He was 67 years old.
Coogan’s widow, daughters, and estate sued GPC, NAPA, and several other
entities for their role in causing Coogan’s premature death. Every defendant except
GPC and NAPA was dismissed by the trial court or settled the claims against them.
After a 12 week trial, the jury unanimously found GPC and NAPA were liable for
Coogan’s death and entered an $81.5 million verdict against them. That damages
verdict is made up of four parts: $30 million for Coogan’s pain and suffering, $30
million to compensate Coogan’s widow for her loss of consortium, $20 million to
compensate Coogan’s daughters for their loss of consortium, and $1.5 million for
the loss of services Coogan would have provided to his family had he survived.
GPC and NAPA moved for the trial court to set aside the jury’s verdict and
grant a new trial on liability and damages under CR 59(a) or, alternatively, to enter
a remittitur of damages under RCW 4.76.030. They argued that the trial court
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erroneously excluded the testimony of a medical expert and that the sizable verdict
was excessive and the result of passion or prejudice brought on by Coogan’s
attorney’s alleged misconduct. The trial court denied that motion, finding GPC and
NAPA effectively went “through [the] record and pull[ed] out this question and that
one and str[u]ng together an argument that looks like there was some prejudice”
where none existed. Verbatim Tr. of Proceedings (VTP) (Dec. 1, 2017) at 56. The
trial court also found GPC and NAPA’s arguments that the damages award was
excessive contradicted this court’s precedent and “the enormous deference our
Appellate Courts and our constitution give[] to the weight of the jury’s verdict.”
VTP (Dec. 1, 2017) at 58-59.
GPC and NAPA timely appealed from the denial of their new trial motion.1
While their appeal was pending, GPC and NAPA moved for relief from judgment
under CR 60 on the basis that the Coogan family misrepresented the quality of
Coogan’s relationship with his widow and daughters. The trial court denied that
motion, so GPC and NAPA amended their appeal to challenge that ruling as well.
In an unpublished opinion, the Court of Appeals affirmed the jury’s verdict
on liability but set aside the damages award. The court first determined the trial
1
GPC and NAPA did not appeal the trial court’s denial of their alternative motion for
remittitur under RCW 4.76.030.
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court abused its discretion by excluding the expert testimony of Dr. Gary Schuster,
who would have testified that Coogan had a history of heavy alcohol use and the
state of his liver suggested he may have had advanced cirrhosis that could have
reduced his life expectancy to only 5 years. Because the jury’s damages award to
Coogan’s widow and daughters for their loss of consortium and services was based
in part on actuarial evidence that Coogan would have likely lived for 15 more years
but for his mesothelioma, the Court of Appeals reversed that award. Next, the Court
of Appeals considered the jury’s award for Coogan’s pain and suffering and
determined, “[A]t first blush, that the pain and suffering verdict [rendered by the
jury] here is ‘beyond all measure, unreasonable and outrageous.’” Coogan, slip op.
at 26 (internal quotation marks omitted) (quoting Bunch v. King County Dep’t of
Youth Servs., 155 Wn.2d 165, 179, 116 P.3d 381 (2005)). Finally, the court
considered GPC and NAPA’s argument that alleged misconduct by Coogan’s
counsel prejudiced the jury in its assessment of both liability and damages. Agreeing
with the trial court that no reversible error was shown, the court declined to set aside
the jury’s finding of liability. However, in light of its reversal of key parts of the
damages award, the Court of Appeals ordered a new trial on damages.
Coogan’s widow and estate petitioned this court for review, which we granted.
We also granted review of conditional issues raised by GPC and NAPA in their
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Coogan v. Borg-Warner Morse Tec Inc., et al., No. 98296-1
answer to the petition for review. Coogan v. Borg-Warner Morse Tec Inc., 195
Wn.2d 1024, 466 P.3d 776 (2020).
ANALYSIS
Trial by jury is the bedrock of our justice system. We trust juries to render
verdicts based on their assessment of the evidence according to the law as instructed
by the trial court. Appellate review is appropriately limited, serving as a backstop
to ensure trials are conducted fairly, the law is applied correctly, and the verdict is
within the bounds of justice. Apart from answering questions of law and reviewing
the trial court’s discretionary rulings for any manifest abuse of discretion, appellate
courts will not substitute their own judgment for that of the trial court or jury. Most
relevant here, we will not set aside a jury’s verdict unless circumstances clearly show
it is the product of an unfair process or improper considerations, such that no
reasonable person could believe the verdict is just. Gilmore v. Jefferson County Pub.
Transp. Benefit Area, 190 Wn.2d 483, 494, 415 P.3d 212 (2018).
The principal issue in this case is how an appellate court evaluates a posttrial
claim that the jury’s verdict is excessive or the result of passion and prejudice. In
reviewing the jury’s verdict, the Court of Appeals rejected GPC and NAPA’s claims
to set it aside, in whole or as to damages, due to alleged misconduct of Coogan’s
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Coogan v. Borg-Warner Morse Tec Inc., et al., No. 98296-1
counsel. However, the appellate court reversed the jury’s damages verdict because
it disagreed with one of the trial court’s evidentiary rulings relevant to damages for
loss of consortium and services, and because it believed the size of the verdict for
Coogan’s pain and suffering was “‘flagrantly outrageous and extravagant’ on its
face.” Coogan, slip op. at 25 (quoting Bingaman v. Grays Harbor Cmty. Hosp., 103
Wn.2d 831, 837, 699 P.2d 1230 (1985)).
We first address the Court of Appeals’ holding that the trial court abused its
discretion by excluding the testimony of defense expert, Dr. Gary Schuster. Though
the Court of Appeals believed the trial court should have “simply preclud[ed] any
reference to alcohol in that testimony,” Coogan, slip op. at 21, we hold the trial court
acted well within its discretion. Next we consider the trial court’s refusal to set aside
the jury’s verdict, in whole or in part, based on alleged instances of misconduct by
Coogan’s counsel. We agree with both the trial court and the Court of Appeals that
a new trial is not warranted on this basis.
We next examine the Court of Appeals’ determination that, notwithstanding
substantial evidence in the record, the jury’s $30 million award for Coogan’s pain
and suffering during his final months was “‘beyond all measure, unreasonable and
outrageous.’” Coogan, slip op. at 23 (internal quotation marks omitted) (quoting
Bunch, 155 Wn.2d at 179). We conclude that the Court of Appeals overstepped the
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Coogan v. Borg-Warner Morse Tec Inc., et al., No. 98296-1
limited role appellate courts are supposed to play in our civil justice system and
substituted its own subjective judgment for that of the jury and the trial court based
on nothing more than the size of the verdict. Because the verdict is supported by
substantial evidence and the record does not clearly indicate that the verdict resulted
from passion or prejudice, or was so beyond the bounds of justice that no reasonable
person could believe it is correct, we reverse the Court of Appeals and reinstate the
jury’s verdict in full.
Finally, we address GPC and NAPA’s argument for relief from judgment
under CR 60(b). They claim Coogan’s family and attorney intentionally hid
evidence of family discord until after trial. We conclude the trial court did not abuse
its discretion by denying the CR 60(b) motion because GPC and NAPA were aware
of evidence of family discord in ongoing probate proceedings and chose not to
pursue that evidence until they lost this trial.
I. The Trial Court Properly Applied ER 403 To Exclude Speculative Expert
Testimony That Posed a Significant Risk of Unfair Prejudice
The Court of Appeals concluded the trial court erred by excluding the expert
testimony of Dr. Schuster, an internal medicine specialist who would have suggested
that Coogan may have suffered from late stage liver cirrhosis that significantly
reduced his life expectancy. The Court of Appeals reasoned that even if Dr.
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Coogan v. Borg-Warner Morse Tec Inc., et al., No. 98296-1
Schuster’s “testimony had minimal probative value,” it should have been admitted
because it was “probative of a central issue in the case”: Coogan’s life expectancy
but for the mesothelioma. Coogan, slip op. at 21.
That reasoning is inconsistent with our precedent. Before admitting expert
testimony regarding “scientific, technical, or other specialized knowledge,” trial
courts must ensure that testimony “will assist the trier of fact.” ER 702. To assist
the trier of fact, “[t]he expert’s opinion must be based on fact and cannot simply be
a conclusion or based on an assumption.” Volk v. DeMeerleer, 187 Wn.2d 241, 277,
386 P.3d 254 (2016) (citing Melville v. State, 115 Wn.2d 34, 41, 793 P.2d 952(1990)). “When an expert fails to ground [their] opinions on facts in the record,
courts have consistently found that the testimony is overly speculative and
inadmissible.” Id. (citing Moore v. Hagge, 158 Wn. App. 137, 241 P.3d 787 (2010);
State v. Johnson, 150 Wn. App. 663, 208 P.3d 1265 (2009); State v. Lewis, 141 Wn.
App. 367, 166 P.3d 786 (2007); Doyle v. Nor-W. Pac. Co., 23 Wn. App. 1, 5-6, 594
P.2d 938 (1979)).
The trial court’s decision to exclude Dr. Schuster’s testimony as overly
speculative is sound. Dr. Schuster would have testified that Coogan stood to live
only 5 more years, not the 15 years predicted by actuarial evidence. Dr. Schuster
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Coogan v. Borg-Warner Morse Tec Inc., et al., No. 98296-1
based that opinion on his belief that Coogan “had a stage 3 level of liver disease or
cirrhosis.” 26 Verbatim Report of Proceedings (VRP) (Mar. 6, 2017) at 145. That
belief, in turn, was based on the fact that Coogan had ascites, or fluid buildup, around
his liver and spleen. See 26 VRP (Mar. 6, 2017) at 151 (“If you do not have the
ascites, then you are stage 2.”). But cirrhosis is not the only cause of ascites;
Coogan’s physicians “ascribe[d] the ascites to the mesothelioma.” 26 VRP (Mar. 6,
2017) at 155.
Dr. Schuster “admitted that a significant source of the fluid build up for the
patient that we’re talking about, Doy Coogan, was his cancer.” 26 VRP (Mar. 6,
2017) at 160. Critically, when asked if there was “[a]ny[]way to figure . . . out”
“whether zero percent, one percent, 12 percent,” or any percent of Coogan’s ascites
could be conclusively ascribed to cirrhosis and not mesothelioma, Dr. Schuster’s
response was clear: “You can’t.” 26 VRP (Mar. 6, 2017) at 160. Even so, Dr.
Schuster opined that it was possible Coogan had a shortened life expectancy because
“we know he has large portal veins, the varices,” and “an enlarged spleen,” all of
which suggests “someone has cirrhosis.” 26 VRP (Mar. 6, 2017) at 163. But when
pressed, Dr. Schuster confirmed that “no one, based on those things alone, would
stage someone, in the absence of ascites, as a stage 3 cirrhosis patient.” 26 VRP
(Mar. 6, 2017) at 164 (emphasis added).
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Coogan v. Borg-Warner Morse Tec Inc., et al., No. 98296-1
Dr. Schuster’s opinion that Coogan had only five years to live absent
mesothelioma was based entirely on death rate statistics for stage 3 cirrhosis patients:
“20 percent per year mortality, over a five year time frame. In other words, 20
percent per year, or a lifespan of a maximum of approximately five years.” 26 VRP
(Mar. 6, 2017) at 145; see also 26 VRP (Mar. 6, 2017) at 161 (“[T]he sole basis . . .
of understanding that Doy Coogan would have died in five years from cirrhosis is
directly related to the staging, finding it to be stage 3.”). But Dr. Schuster admitted
he could not say if any of Coogan’s ascites—“the definition of stage 3”—were
caused by cirrhosis. 26 VRP (Mar. 6, 2017) at 161, 164.
Accordingly, there is no basis for the opinion that Coogan’s life expectancy
was only five years. As the trial court explained when granting Coogan’s motion to
exclude Dr. Schuster’s testimony, “Even if one accepts that there is stage 2 cirrhosis,
then the death rate is 3.5 percent per year. . . . 3.5 percent for stage 2 would take Mr.
Doy Coogan to the end of his normal life expectancy.” 26 VRP (Mar. 6, 2017) at
166-67. The trial court appropriately excluded Dr. Schuster’s testimony “that Mr.
Coogan’s life expectancy was between one and five years . . . [as] too attenuated and
in many respects speculative.” 26 VRP (Mar. 6, 2017) at 166.
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Such speculative evidence is of little help to the jury. “The problem with
‘speculative testimony is that the trier of fact will be forced to speculate as to
causation without an adequate factual basis.’” Gerlach v. Cove Apts., LLC, 196
Wn.2d 111, 123, 471 P.3d 181 (2020) (quoting Volk, 187 Wn.2d at 277). Dr.
Schuster’s testimony would have suggested Coogan might have had only five years
to live because he might have had stage 3 cirrhosis. “‘Such speculative testimony is
not rendered less speculative or of more consequence to the jury’s determination
simply because it comes from an expert.’” Id. (quoting Lewis, 141 Wn. App. at 389).
The trial court’s decision to exclude Dr. Schuster’s speculative testimony was proper
under ER 702.
Trial courts also have discretion to exclude evidence “if its probative value is
substantially outweighed by the danger of unfair prejudice.” ER 403. The probative
value of speculative evidence is minimal and thus easily outweighed by the danger
of unfair prejudice. “‘[T]rial courts enjoy wide discretion in balancing the probative
value of evidence against its potentially prejudicial impact.’” Gerlach, 196 Wn.2d
at 120 (alteration in original) (internal quotation marks omitted) (quoting Salas v.
Hi-Tech Erectors, 168 Wn.2d 664, 671, 230 P.3d 583 (2010)). Accordingly,
appellate courts review decisions to exclude evidence “for abuse of discretion,
deferring to the trial court’s judgment unless we are ‘convinced that no reasonable
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Coogan v. Borg-Warner Morse Tec Inc., et al., No. 98296-1
person would take the view adopted by the trial court.’” Id. at 119 (internal quotation
marks omitted) (quoting Gilmore, 190 at 494).
A danger of unfair prejudice exists when “‘evidence is likely to stimulate an
emotional response rather than a rational decision.’” Id. at 120 (quoting Salas, 168
Wn.2d at 671). As the Court of Appeals acknowledged, “Evidence of prior alcohol
abuse has the potential to be very prejudicial.” Coogan, slip op. at 20; see also
Gerlach, 196 Wn.2d at 123-24. Given the minimal probative value of Dr. Schuster’s
speculative testimony, the trial court reasonably determined “the prejudicial effect
of characterizing Mr. Coogan as an alcoholic, a chronic, heavy drinker, is something
that I think is unduly prejudicial. And on an ER 401, 402, 403 balancing test, I’m
going to grant the motion to exclude.” 2 VTP (Jan. 19, 2017) at 97; see also 26 VRP
(Mar. 6, 2017) at 167 (trial court explaining after the offer of proof that it would
“stand by my earlier ruling [that] Dr. Schuster’s testimony will be declined”). That
determination was well within the trial court’s discretion under ER 403.
The Court of Appeals would have preferred a different approach, reasoning
Dr. Schuster’s testimony was admissible under ER 702 and concluding “the trial
court abused its discretion by excluding Dr. Schuster’s . . . testimony under ER 403
rather than simply precluding any reference to alcohol in that testimony.” Coogan,
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Coogan v. Borg-Warner Morse Tec Inc., et al., No. 98296-1
slip op. at 21. But, as explained above, the trial court’s exclusion of Dr. Schuster’s
speculative testimony was proper under ER 702. And even if Dr. Schuster’s
testimony were admissible, an appellate court cannot hold that a trial court abused
its discretion “‘simply because it would have decided the case differently.’”
Gilmore, 190 Wn.2d at 494 (quoting State v. Salgado-Mendoza, 189 Wn.2d 420,
427, 403 P.3d 45 (2017)). Instead, the appellate court “‘must be convinced that
no reasonable person would take the view adopted by the trial court.’” Id. (internal
quotation marks omitted) (quoting Salgado-Mendoza, 189 Wn.2d at 427). And
“‘[i]f the basis for admission [or exclusion] of the evidence is fairly debatable,’” the
appellate court “‘will not disturb the trial court’s ruling.’” Id. (alterations in original)
(internal quotation marks omitted) (quoting Johnston-Forbes v. Matsunaga, 181
Wn.2d 346, 352, 333 P.3d 388 (2014)).
We conclude that the Court of Appeals erred by failing to give sufficient
deference to the trial court’s decision to exclude Dr. Schuster’s testimony. We
therefore reverse the Court of Appeals’ decision to set aside the jury’s award of
damages for loss of consortium and loss of services damages in light of that
evidentiary ruling.
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II. The Trial Court Properly Denied GPC and NAPA’s CR 59(a) Motion for
a New Trial Premised on Alleged Irregularity or Misconduct by Plaintiffs’
Counsel
GPC and NAPA challenge the trial court’s denial of their motion for a new
trial under CR 59(a)(1) and (2), arguing that Coogan’s attorney repeatedly engaged
in misconduct that undermined the fairness of the trial and prejudiced the jury against
them. In denying that motion, the trial court observed:
[I]n a three-month long trial, it is impossible not to be able to go through
a record and pull out this question and that one and string together an
argument that looks like there was some prejudice when the great mass
of the evidence is what the jury is supposed to consider and what I have
to assume they did consider.
VTP (Dec. 1, 2017) at 56.
The Court of Appeals, with one judge dissenting, affirmed the trial court’s
decision to deny a new trial on this basis. The majority concluded the record did not
clearly show the alleged misconduct had a prejudicial effect on the jury or otherwise
undermined the verdict. We agree and affirm this portion of the Court of Appeals
opinion.
New trials premised on misconduct are appropriate when “misconduct of [the]
prevailing party” “materially affect[s] the substantial rights of [the aggrieved]
parties.” CR 59(a)(2). A party seeking a new trial for misconduct must establish
that (1) the challenged conduct was actually misconduct, (2) the misconduct was
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Coogan v. Borg-Warner Morse Tec Inc., et al., No. 98296-1
prejudicial, (3) the misconduct was objected to at trial, and (4) the misconduct was
not cured by the trial court’s instructions. Teter v. Deck, 174 Wn.2d 207, 226, 274
P.3d 336 (2012). The key question is whether “‘such a feeling of prejudice [has]
been engendered or located in the minds of the jury as to prevent a litigant from
having a fair trial.’” Alum. Co. of Am. v. Aetna Cas. & Sur. Co., 140 Wn.2d 517,
537, 998 P.2d 856 (2000) (internal quotation marks omitted) (quoting Moore v.
Smith, 89 Wn.2d 932, 942, 578 P.2d 26 (1978)).
Appellate courts review a trial court’s denial of a motion for a new trial for
abuse of discretion. Id. “[I]t is in this area of the new-trial field that the favored
position of the trial judge and his sound discretion should be accorded the greatest
deference.” Baxter v. Greyhound Corp., 65 Wn.2d 421, 440, 397 P.2d 857 (1964).
See also State v. Lord, 117 Wn.2d 829, 887, 822 P.2d 177 (1991) (“The trial court
is in the best position to most effectively determine if [counsel’s] misconduct
prejudiced a [party’s] right to a fair trial.”), abrogated on other grounds by State v.
Schierman, 192 Wn.2d 577, 438 P.3d 1063 (2018). Accordingly, appellate courts
will defer to the reasoned judgment of the trial court “[u]nless some prejudicial effect
is clear from the record.” Gilmore, 190 Wn.2d at 503.
Here, the Court of Appeals reviewed the record and properly determined that
none of the alleged misconduct highlighted by GPC and NAPA had a clear
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prejudicial effect on the jury. GPC and NAPA first argue that Coogan’s attorney
engaged in misconduct by asking a question implying that workers at GPC facilities
had died from asbestos-related diseases. We agree that question was improper, as it
violated the parties’ pretrial stipulation against presenting such evidence. However,
the trial court provided the jury with a curative instruction: “There will be no
evidence of deaths and the [GPC] facility related to asbestos exposure in this case.
You may not consider such fact in your deliberations of this case, and you may not
discuss that in your deliberations of the case.” 23 VTP (Feb. 28, 2017) at 55. GPC
and NAPA argue this instruction was insufficient, but “jurors are presumed to follow
the court’s instructions.” State v. Emery, 174 Wn.2d 741, 766, 278 P.3d 653 (2012).
The Court of Appeals acknowledged that “the trial court’s instruction could have
been worded better” but concluded that this incident “does not rise to the level of
misconduct that requires a reversal of the liability verdict” because it was only “one
isolated question in a complex trial.” Coogan, slip op. at 30. Like the Court of
Appeals, we cannot find any evidence in the record showing Coogan’s attorney’s
question had a clear prejudicial effect on the jury.
GPC and NAPA next contend that Coogan’s attorney engaged in misconduct
by asking questions implying that GPC’s corporate representative was not prepared
to answer questions and so should not have been selected to testify on GPC’s behalf.
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But, as the Court of Appeals noted, GPC and NAPA cannot show prejudice resulted
from these questions because the corporate representative’s “lack of preparedness
was apparent” to the jury. Coogan, slip op. at 31. Before Coogan’s attorney even
asked the questions at issue, a juror submitted this question for the trial court to ask:
“As GPC’s corporate representative, is there a reason you have not reviewed
materials for this case to better answer questions?” Clerk’s Papers (CP) at 9077; 17
VRP (Feb. 15, 2017) at 142. We therefore agree that GPC and NAPA have failed
to demonstrate Coogan’s attorney’s questions about the corporate representative had
a prejudicial effect on the jury.
GPC and NAPA also claim Coogan’s attorney committed misconduct by
asking a question that elicited an outburst from Jay Coogan that defense counsel had
accused him of killing his brother, Doy Coogan. On cross-examination, defense
counsel asked Jay questions about his relationship with Coogan’s counsel and walks
that Jay took with her during his deposition. On redirect, to rebut any implication
that there was anything inappropriate going on between them, Coogan’s attorney
asked Jay about their relationship and why he “needed to pretty regularly blow off
steam” while being deposed by defense counsel. 16 VRP (Feb. 14, 2017) at 159.
Jay replied, “Some of the questions that were asked of me in the deposition were
very offensive.” 16 VRP (Feb. 14, 2017) at 159. Unprompted, Jay then added, “At
20
Coogan v. Borg-Warner Morse Tec Inc., et al., No. 98296-1
one point she [defense counsel] accused me of killing my brother.” 16 VRP (Feb.
14, 2017) at 160. The trial court immediately struck the statement and instructed the
jury that the remark was irrelevant and should be completely removed from their
consideration. Because “jurors are presumed to follow the court’s instructions,”
Emery, 174 Wn.2d at 766, and GPC and NAPA do not point to other evidence in the
record showing Jay Coogan’s outburst had a prejudicial effect on the jury, we agree
the trial court did not abuse its discretion by denying the motion for a new trial on
this basis.
Finally, GPC and NAPA allege a number of statements Coogan’s attorney
made during closing argument constituted misconduct. But GPC and NAPA did not
object to those statements, even after the trial court invited all parties to place any
objections on the record at the end of closing. A timely objection is one of the
requirements for a new trial based on attorney misconduct because it prevents parties
from gambling on a favorable verdict before claiming error. Teter, 174 Wn.2d at
225. The sole exception to the preservation of error requirement is “for misconduct
so flagrant that no instruction can cure it.” Id. (citing Warren v. Hart, 71 Wn.2d
512, 518, 429 P.2d 873 (1967)). We need not belabor every belated accusation of
misconduct. We agree with the Court of Appeals that GPC and NAPA failed to
demonstrate any prejudice caused by Coogan’s attorney’s closing argument that was
21
Coogan v. Borg-Warner Morse Tec Inc., et al., No. 98296-1
so flagrant it could not have been cured by an instruction from the trial court had
GPC and NAPA timely objected.
In sum, GPC and NAPA have failed to demonstrate that any alleged
misconduct by Coogan’s attorney had a clear prejudicial effect on the jury such that
GPC and NAPA did not receive a fair trial on liability. On this issue, we affirm the
Court of Appeals.
Unfortunately, despite its majority holding that no irregularity or misconduct
invalidated the jury’s verdict, a different majority of the Court of Appeals vacated
the jury’s award of noneconomic damages and ordered a new trial.2 It did so based
on its own “necessarily . . . subjective” determination that the amount of damages
was “so excessive that it shock[ed] the court’s conscience.” Coogan, slip op. at 26,
25. As discussed next, this was error. Reversal of a jury’s damages award on
grounds of excessiveness requires a more substantive assessment, grounded in a
thorough consideration of all the evidence and any circumstances suggesting passion
or prejudice.
2
Notably, of the two Court of Appeals judges comprising the majority that ordered a new
trial on the issue of damages, one would have ordered a new trial on both liability and
damages under CR 59(a)(1) and (2), agreeing with GPC and NAPA that Coogan’s
attorney’s misconduct prejudiced the jury and infected the entire verdict. Coogan, slip
op. at 46 (Lee, J., dissenting in part).
22
Coogan v. Borg-Warner Morse Tec Inc., et al., No. 98296-1
III. Nothing in the Record Demonstrates the Jury’s Damages Verdict Was the
Result of Passion, Prejudice, or Any Other Improper Consideration That
Should Shock the Court’s Conscience
As noted, the Court of Appeals agreed with the trial court that GPC and
NAPA’s allegations of attorney misconduct did not demonstrate the clear prejudice
needed to overturn the jury’s verdict under CR 59(a)(1) and (2). It separately
considered the defendants’ argument for a new trial under CR 59(a)(5), which
asserted the jury’s verdict was “so excessive or inadequate as unmistakably to
indicate that the verdict must have been the result of passion or prejudice.” CR
59(a)(5); see Coogan, slip op. at 22. In the course of its brief analysis, the court
pivoted away from the language of the court rule and relevant precedent to rely on a
somewhat free-floating determination that “the $30 million pain and suffering
verdict shocks this court’s conscience.” Coogan, slip op. at 24. But because the
jury’s damages verdict was supported by substantial evidence, it was error for the
Court of Appeals to set it aside without identifying something in the record
demonstrating that the jury rendered an excessive verdict because of passion,
prejudice, or any other improper consideration.
A. Courts Have a Limited Role in Reviewing Juries’ Damages Verdicts
Respect for the jury’s role in our civil justice system is rooted in Washington’s
constitution, which grants juries “the ultimate power to weigh the evidence and
23
Coogan v. Borg-Warner Morse Tec Inc., et al., No. 98296-1
determine the facts—and the amount of damages in a particular case is an ultimate
fact.” James v. Robeck, 79 Wn.2d 864, 869, 490 P.2d 878 (1971) (citing WASH.
CONST. art. I, § 21). Because the “determination of the amount of damages . . . is
primarily and peculiarly within the province of the jury . . . courts should be and are
reluctant to interfere with the conclusion of the jury when fairly made.” Bingaman,
103 Wn.2d at 835 (citing Baxter, 65 Wn.2d at 438). “We strongly presume the jury’s
verdict is correct.” Bunch, 155 Wn.2d at 179 (citing Sofie v. Fibreboard Corp., 112
Wn.2d 636, 654, 771 P.2d 711 (1989)).
In narrow circumstances, that strong presumption can be overcome. Courts
have long recognized their common law responsibility to ensure that the jury’s
verdict achieves substantial justice. See Bond v. Ovens, 20 Wn.2d 354, 357, 147
P.2d 514 (1944) (“[T]he right to trial by jury and the right of the trial judge to set a
jury verdict aside and grant a new trial, on the ground that substantial justice has not
been done, have existed side by side for centuries in the English courts, and in our
state courts since their creation, and, in fact, in all other systems of judicature
founded upon the English common law.”); Coppo v. Van Wieringen, 36 Wn.2d 120,
123-24, 217 P.2d 294 (1950) (“[W]e have always upheld the right of the trial judge
to grant a new trial when he is convinced that substantial justice has not been done,
on the theory that it is an exercise of the trial court’s inherent power.” (citing
24
Coogan v. Borg-Warner Morse Tec Inc., et al., No. 98296-1
Sylvester v. Olson, 63 Wash. 285, 115 P. 175 (1911))). However, when the trial
court denies a new trial, the jury’s verdict is strengthened and appellate courts owe
even greater deference to the judgment of the jury. See Washburn v. Beatt Equip.
Co., 120 Wn.2d 246, 271, 840 P.2d 860 (1992) (“The verdict is strengthened by
denial of a new trial by the trial court.” (citing Seaboard Coast Line R.R. Co. v.
Gillis, 294 Ala. 726, 733, 321 So. 2d 202 (1975))).
Washington law recognizes two primary reasons a jury’s damages verdict
may not achieve substantial justice, which are now codified in court rules. First, the
jury’s damages verdict might not be supported by the evidence admitted at trial. See
CR 59(a)(7) (new trial may be granted when “there is no evidence or reasonable
inference from the evidence to justify the verdict or the decision, or that it is contrary
to law”). In common law terms, courts may set aside a jury’s damages verdict if that
verdict “‘is outside the range of substantial evidence in the record.’” Bunch, 155
Wn.2d at 179 (quoting Bingaman, 103 Wn.2d at 835). “‘The requirement of
substantial evidence necessitates that the evidence be such that it would convince an
unprejudiced, thinking mind.’” Id. (internal quotation marks omitted) (quoting
Indus. Indem. Co. of Nw., Inc. v. Kallevig, 114 Wn.2d 907, 916, 792 P.2d 520(1990)). “Where the proponent of a new trial argues the verdict was not based upon
the evidence, appellate courts will look to the record to determine whether there was
25
Coogan v. Borg-Warner Morse Tec Inc., et al., No. 98296-1
sufficient evidence to support the verdict.” Palmer v. Jensen, 132 Wn.2d 193, 197-
98, 198, 937 P.2d 597 (1997) (citing McUne v. Fuqua, 45 Wn.2d 650, 652, 277 P.2d
324 (1954); Ide v. Stoltenow, 47 Wn.2d 847, 848, 289 P.2d 1007 (1955); Philip A.
Trautman, Motions Testing the Sufficiency of Evidence, 42 WASH. L. REV. 787, 811
(1967)).
This analysis is akin to the inquiry courts make in considering a motion for
judgment as a matter of law under CR 50, where the court is required to view the
evidence and reasonable inferences in the light most favorable to the verdict, without
regard to contrary evidence or inferences. Compare CR 59(a)(7) (providing new
trials may be granted when “there is no evidence or reasonable inference from the
evidence to justify the verdict”), with CR 50(a)(1) (allowing judgment as a matter of
law where “there is no legally sufficient evidentiary basis for a reasonable jury to
find or have found for that party with respect to that issue”). See also Cox v. Charles
Wright Acad., Inc., 70 Wn.2d 173, 176-77, 422 P.2d 515 (1967) (noting substantial
evidence review respects the jury’s prerogative to evaluate and weigh evidence).
Appellate and trial courts are equally competent to review the record for legal
sufficiency, so appellate courts owe no deference to trial courts’ conclusions. Cf.
Paetsch v. Spokane Dermatology Clinic, PS, 182 Wn.2d 842, 848, 348 P.3d 38926
Coogan v. Borg-Warner Morse Tec Inc., et al., No. 98296-1
(2015) (“We review judgments as a matter of law de novo.” (citing Faust v.
Albertson, 167 Wn.2d 531, 539 n. 2, 222 P.3d 1208 (2009))). But both appellate and
trial courts must show appropriate deference to the jury’s constitutional role as the
ultimate finder of fact. James, 79 Wn.2d at 869; see also Zorich v. Billingsley, 55
Wn.2d 865, 869, 350 P.2d 1010 (1960) (“[W]e will not disturb an award of damages
made by the jury if it is within the range of substantial evidence in the record which
the jury is entitled to believe.”). This deference requires courts to presume that the
jury resolved every conflict and drew every reasonable inference in favor of the
prevailing party. See CR 59(a)(7) (new trials may be granted when “there is no
evidence or reasonable inference from the evidence to justify the verdict”).
In addition to reviewing for substantial evidence, appellate courts
appropriately ask if the jury’s damages verdict might be based on some improper
consideration outside the evidence admitted at trial. See CR 59(a)(5) (new trial may
be granted when the damages awarded are “so excessive or inadequate as
unmistakably to indicate that the verdict must have been the result of passion or
prejudice”). In common law terms, this occurs when the record “‘manifestly show[s]
the jury to have been actuated by passion, partiality, prejudice, or corruption,’” or
“disclose[s] circumstances foreign to proper jury deliberations . . . [that] shock the
sense of justice and sound judgment.” Kramer v. Portland-Seattle Auto Freight,
27
Coogan v. Borg-Warner Morse Tec Inc., et al., No. 98296-1
Inc., 43 Wn.2d 386, 395-96, 261 P.2d 692 (1953) (quoting Coleman v. Southwick, 9
Johns. 45 (N.Y. Sup. Ct. 1812)); see also Bunch, 155 Wn.2d at 179 (“‘An appellate
court will not disturb an award of damages made by a jury unless
it . . . shocks the conscience of the court, or appears to have been arrived at as the
result of passion or prejudice.’” (quoting Bingaman, 103 Wn.2d at 835)). Though
sometimes articulated in distinct terms, the passion or prejudice inquiry and the
shocks the conscience inquiry ask essentially the same question: Did the jury base
its verdict on some malign influence or egregious impropriety at trial rather than the
properly admitted evidence? Both inquiries reflect different facets of the common
law power of courts to ensure substantial justice has been done and are best
considered two sides of the same coin. Coppo, 36 Wn.2d at 123-24.
The size of the verdict alone cannot be proof that it was based on passion,
prejudice, or any other improper consideration. Bunch, 155 Wn.2d at 183 (“‘The
verdict of a jury does not carry its own death warrant solely by reason of its size.’”
(quoting Bingaman, 103 Wn.2d at 838)). That is particularly true where the verdict
is supported by substantial evidence in the record but is challenged for being
shockingly large. As we explained 40 years ago:
In those instances where the verdict is reasonably within the range of
proven damages . . . , then it cannot be found as a matter of law that the
verdict was unmistakably so excessive or inadequate as to show that the
28
Coogan v. Borg-Warner Morse Tec Inc., et al., No. 98296-1
jury had been motivated by passion or prejudice solely because of the
amount.
James, 79 Wn.2d at 870-71. 3
Instead, there must be something in the record showing that the jury’s verdict
was improperly influenced by “untoward incidents of such extreme and
inflammatory nature that the court’s admonitions and instructions could not cure or
neutralize them.” 4 Id. at 871. “Before passion or prejudice can justify reduction of
a jury verdict, it must be of such manifest clarity as to make it unmistakable.”
Bingaman, 103 Wn.2d at 836 (citing James, 79 Wn.2d at 870). Said another way,
when a jury’s damages verdict is within the range of substantial evidence in the
record, courts can order a new trial only if something in the record unmistakably
indicates that the verdict is not actually based on that substantial evidence but instead
3
This court has recognized that the substantial evidence inquiry is the threshold question,
before turning to the question of excessiveness. See James, 79 Wn.2d at 866 (“Our first
inquiry is whether the record sustains a verdict of $17,000, for if there is not substantial
evidence to support the verdict, the issue of excessive damages becomes moot and ought
not stand at all.”); Palmer, 132 Wn.2d at 197-98 (criticizing Court of Appeals for
“limit[ing] its analysis to whether the verdict was so inadequate as to indicate passion or
prejudice . . . [without first addressing] whether there was evidence to support the
verdict”).
4
This requirement is even more demanding than the factors required to show a new trial
on liability is warranted. See Teter, 174 Wn.2d at 226 (“a court properly grants a new
trial where . . . (2) the misconduct is prejudicial . . . and (4) the misconduct was not cured
by the court’s instructions”).
29
Coogan v. Borg-Warner Morse Tec Inc., et al., No. 98296-1
on some improper consideration that gives rise to passion or prejudice, or that
otherwise shocks the court’s conscience.
Given “our declared reluctance to interfere with the decision of a jury, it
should be and indeed is the rare case where [courts] should substitute our judgment
for that of the jury.” Washburn, 120 Wn.2d at 278. This is particularly true for
appellate courts, which “can review only the written record, while the factfinder and
the trial judge [a]re in the favored position of being able to evaluate the full range of
evidence submitted.” Adcox v. Children’s Orthopedic Hosp. & Med. Ctr., 123
Wn.2d 15, 33, 864 P.2d 921 (1993) (citing Washburn, 120 Wn.2d at 268). We once
explained why appellate courts defer to the conclusions of trial courts in this way:
“The judge before whom the cause was tried heard the testimony,
observed the appearance and bearing of the witnesses and their manner
of testifying, and was much better qualified to pass upon the credibility
and weight of their testimony than this court can be. There are many
comparatively trifling appearances and incidents, lights and shadows,
which are not preserved in the record, which may well have affected
the mind of the judge as well as the jury in forming opinions of the
weight of the evidence, the character and credibility of the witnesses,
and of the very right and justice of the case. These considerations
cannot be ignored in determining whether the judge exercised a
reasonable discretion or abused his discretion in granting or refusing a
motion for a new trial.”
Coppo, 36 Wn.2d at 124 (quoting McLimans v. City of Lancaster, 57 Wis. 297, 299,
15 N.W. 194 (1883)).
30
Coogan v. Borg-Warner Morse Tec Inc., et al., No. 98296-1
Accordingly, appellate courts review trial courts’ decisions in this area for a
manifest abuse of discretion, while still deferring to the jury’s constitutional role as
ultimate fact finder. See Washburn, 120 Wn.2d at 271 (“The verdict is strengthened
by denial of a new trial by the trial court.” (citing Seaboard Coast Line, 294 Ala. at
733)). We will not disturb the trial court’s ruling and the jury’s verdict unless we
are convinced that “‘no reasonable person would take the view adopted by the trial
court.’” Gilmore, 190 Wn.2d at 494 (internal quotation marks omitted)
(quoting Salgado-Mendoza, 189 Wn.2d at 427).
These compounding layers of deference effectively limit the ability of an
appellate court to overturn a verdict supported by substantial evidence to one
scenario: when the only reasonable view is that something other than the evidence
at trial unmistakably caused the jury’s verdict. More intrusive appellate review risks
encroaching on the jury’s prerogative to weigh the evidence and decide the facts,
including the award of damages. See Washburn, 120 Wn.2d at 269 (“Given the
foregoing constitutional principle . . . [that the jury is the ultimate fact finder],
appellate review is most narrow and restrained—the appellate court ‘rarely exercises
this power.’” (quoting Bingaman, 103 Wn.2d at 835)).
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Coogan v. Borg-Warner Morse Tec Inc., et al., No. 98296-1
B. The Court of Appeals Erred by Reversing the Jury’s Damages Verdict
Because of Its Size and Based on Reweighing the Evidence That Supports
It
Recognizing the substantial evidence in the record, GPC and NAPA’s CR
59(a) motion advanced only one argument for why a new trial on damages was
necessary: the jury’s verdict was the result of passion or prejudice caused by the
alleged misconduct of Coogan’s attorney. CP at 16362 (“This section explains why
the jury rendered a verdict based on passion and prejudice. The trial was saturated
with misconduct by Plaintiffs’ counsel from start to finish, as counsel used improper
questioning and argument at every turn to inflame the jury into returning an
excessive verdict.”). That motion did not argue the jury’s verdict was outside the
range of substantial evidence. CP at 16359 (citing CR 59(a)(1), (2), and (5)—but
not CR 59(a)(7)—as the bases for a new trial). Having acknowledged the jury’s
verdict was within the range of substantial evidence, GPC and NAPA can prevail
only if there is something in the record showing that the jury’s verdict was
improperly influenced by “untoward incidents of such extreme and inflammatory
nature that the court’s admonitions and instructions could not cure or neutralize
them.” James, 79 Wn.2d at 871.
They cannot make this showing. In rejecting GPC and NAPA’s passion or
prejudice argument, the trial court noted:
32
Coogan v. Borg-Warner Morse Tec Inc., et al., No. 98296-1
[I]n a three-month long trial, it is impossible not to be able to go through
a record and pull out this question and that one and string together an
argument that looks like there was some prejudice when the great mass
of the evidence is what the jury is supposed to consider and what I have
to assume they did consider.
VTP (Dec. 1, 2017) at 56. After the benefit of briefing, oral argument, and a front-
row seat at trial, the trial court concluded the alleged incidents of misconduct by
Coogan’s attorney were not so egregious as to unmistakably indicate the jury was
inflamed by passion or prejudiced against GPC and NAPA.
On appeal, GPC and NAPA tried to buttress their argument that the verdict
was the result of passion or prejudice by weaving “shocks the conscience” language
into their claims for the first time. Opening Br. of Appellant GPC (Wash. Ct. App.
No. 51253-0-II (2018)) at 55 (citing VTP (Dec. 1, 2017) at 52, 57). But the substance
of GPC and NAPA’s argument for a new trial—on both liability and damages—
remains focused on the alleged incidents of misconduct they believe inflamed the
jury with passion or prejudice and undermined its verdict.
We review the trial court’s denial of the new trial motion for abuse of
discretion, conscious that the jury’s “verdict is strengthened by denial of a new trial
by the trial court.” Washburn, 120 Wn.2d at 271 (citing Seaboard Coast Line, 294
Ala. at 733). We will not disturb the trial court’s ruling and the jury’s verdict unless
we are convinced that “‘no reasonable person would take the view adopted by the
33
Coogan v. Borg-Warner Morse Tec Inc., et al., No. 98296-1
trial court.’” Gilmore, 190 Wn.2d at 494 (internal quotation marks omitted)
(quoting Salgado-Mendoza, 189 Wn.2d at 427). Unfortunately, the Court of
Appeals exceeded these limitations on appellate review and effectively substituted
its judgment for that of the trial court and the jury.
First, it is important to recognize that the Court of Appeals’ decision to
overturn the damages verdict as shockingly excessive is undercut by its decision to
uphold the liability verdict. The Court of Appeals appropriately rejected GPC and
NAPA’s challenge to the liability verdict premised on instances of attorney
misconduct alleged to have prejudiced the jury against GPC and NAPA. Common
sense suggests that if those incidents did not prejudice the jury’s verdict on liability,
they did not prejudice the jury’s verdict on damages either. Nothing in the record
demonstrates that the jury’s verdict was the result of “passion or prejudice . . . [that
was] of such manifest clarify as to make it unmistakable.” Bingaman, 103 Wn.2d
at 836 (citing James, 79 Wn.2d at 870).
Second, the Court of Appeals failed to defer to the jury’s assessment of the
evidence presented, and essentially reweighed the evidence of Coogan’s suffering in
the months before he died. Coogan, slip op. at 25 (“Given the short time that
[Coogan] was sick, the jury’s $30 million award was ‘flagrantly outrageous and
34
Coogan v. Borg-Warner Morse Tec Inc., et al., No. 98296-1
extravagant’ on its face.” (quoting Bingaman, 103 Wn.2d at 837)). That reasonable
minds might differ on the economic “value” of Coogan’s suffering is evident from
Judge Melnick’s dissent. Coogan, slip op. at 54 (Melnick, J., dissenting in part)
(“The verdict for these noneconomic damages does not shock my conscience. No
amount of money could ever compensate [Coogan] for the suffering he endured as
a result of peritoneal mesothelioma.”).
There is no legal standard for determining the length of suffering needed to
support significant damages, especially where that suffering is severe and involves
an awareness of impending death. In Bingaman, where a new mother died of
eclampsia caused by medical malpractice, the Court of Appeals ordered a new trial
on damages because it believed the jury’s pain and suffering award was excessive
given the “period of sporadic suffering lasting less than 1 day.” Bingaman v. Grays
Harbor Cmty. Hosp., 37 Wn. App. 825, 833, 685 P.2d 1090 (1984). We reversed,
explaining:
Although the decedent was unconscious during some part of her
last 35 hours of life, due to her condition or sedation or both, substantial
evidence was presented from which the jury could find that during much
of that period of time she not only suffered extreme conscious pain, fear
and despair at not being helped, but also had the conscious realization
her life and everything fine that it encompassed was
prematurely ending. . . . It is admittedly difficult to assess in monetary
terms the damages for such pain and suffering, but although the
35
Coogan v. Borg-Warner Morse Tec Inc., et al., No. 98296-1
damages for the decedent’s pain and suffering awarded by the jury were
very substantial, that award does not under the facts and circumstances
established by the evidence shock our sense of justice and sound
judgment.
Bingaman, 103 Wn.2d at 837-38 (emphasis added).
In this case, the evidence showed that Coogan suffered for months from an
ever-growing array of symptoms that robbed him of the ability to eat, drink, or
breathe without pain. His body deteriorated with alarming speed, while fluid built
up in and around his internal organs. He knew death was fast approaching. Given
the severity of Coogan’s suffering, the jury’s verdict does not shock the conscience
or offend notions of justice. “Our conscience is apparently more resilient than the
Court of Appeals to shocks.” Bunch, 155 Wn.2d at 182.
In setting aside the damages verdict, the Court of Appeals intruded on the
jury’s constitutional prerogative and impermissibly based its decision on the size of
the verdict and its own subjective reweighing of the evidence. There was no
challenge to the sufficiency of the evidence to support the verdict. There was
nothing in the record unmistakably showing the jury’s verdict was based on some
improper consideration instead of the legally sufficient evidence. All the Court of
Appeals had left to consider was the verdict’s size, which it found “‘flagrantly
outrageous and extravagant’ on its face.” Coogan, slip op. at 25 (quoting Bingaman,
36
Coogan v. Borg-Warner Morse Tec Inc., et al., No. 98296-1
103 Wn.2d at 837). But “‘[t]he verdict of a jury does not carry its own death warrant
solely by reason of its size.’” Bunch, 155 Wn.2d at 183 (quoting Bingaman, 103
Wn.2d at 838). Because the verdict is supported by substantial evidence and the
record does not clearly indicate that the verdict resulted from passion or prejudice or
was so beyond the bounds of justice that no reasonable person could believe it is
correct, we reverse the Court of Appeals and reinstate the jury’s verdict in full.
IV. The Trial Court Properly Denied GPC and NAPA’s CR 60 Motion for
Relief from Judgment
Having vacated the jury’s damages verdict on other grounds, the Court of
Appeals did not address GPC and NAPA’s argument that the trial court abused its
discretion by denying their motion for relief from judgment under CR 60(b). We
address that argument here because GPC and NAPA conditionally raised it in their
answer to the petition for review.5 “A trial court's denial of a motion to vacate under
CR 60(b) will not be overturned on appeal unless the court manifestly abused its
discretion.” Haley v. Highland, 142 Wn.2d 135, 156, 12 P.3d 119 (2000) (citing In
re Guardianship of Adamec, 100 Wn.2d 166, 173, 667 P.2d 1085 (1983)). “In our
review for abuse of discretion, we may affirm the trial court on any basis that the
5
The other issues conditionally raised by GPC and NAPA—whether the alleged
misconduct by Coogan’s attorney warrants a new trial on liability and whether the entire
verdict was shockingly excessive—are resolved by our analysis above.
37
Coogan v. Borg-Warner Morse Tec Inc., et al., No. 98296-1
record supports.” State v. Arndt, 194 Wn.2d 784, 799, 453 P.3 696 (2019) (citing
LaMon v. Butler, 112 Wn.2d 193, 200-01, 770 P.2d 1027 (1989)).
GPC and NAPA accuse Coogan’s family and attorney of misrepresenting the
nature of Coogan’s relationship with his widow by intentionally withholding
evidence that contradicted the image presented to the jury. That accusation stems
from declarations filed in a separate dispute in probate court between Coogan’s
widow and daughters over the interpretation of Coogan’s will. In February 2018,
two months after the trial court in this case denied GPC and NAPA’s motion for a
new trial, Coogan’s widow moved for partial summary judgment in probate court.
That motion argued she was entitled to half of the property acquired during her
relationship with Coogan prior to their marriage in 2011. CP at 21001. Because the
claim encompassed property Coogan ostensibly left to his daughters in his will, the
daughters opposed the motion and filed declarations challenging the widow’s
account of the nature and quality of her early relationship with Coogan. CP at
21081-86.
GPC and NAPA monitored the Coogan family’s probate dispute throughout
trial and discovered these new filings during a routine docket check. GPC and
NAPA moved for relief from judgment under CR 60(b)(3) and (4), arguing the
declarations constituted newly discovered evidence and that Coogan’s family and
38
Coogan v. Borg-Warner Morse Tec Inc., et al., No. 98296-1
attorney had intentionally misrepresented the quality and nature of Coogan’s
relationship with his widow in order to trick the jury into returning a larger damages
award for loss of consortium.
Courts will grant a motion to vacate the judgment under CR 60(b)(3) when
newly discovered evidence “(1) would probably change the result if a new trial were
granted, (2) was discovered since trial, (3) could not have been discovered before
the trial by the exercise of due diligence, (4) is material, and (5) is not merely
cumulative or impeaching.” Jones v. City of Seattle, 179 Wn.2d 322, 360, 314 P.3d
380 (2013). Relief under CR 60(b)(4) is appropriate when the party challenging the
judgment “establish[es] . . . by clear and convincing evidence” that it “was prevented
from fully and fairly presenting its case or defense” due to “fraud, misrepresentation,
or other misconduct of an adverse party.” Lindgren v. Lindgren, 58 Wn. App. 588,
596, 794 P.2d 526 (1990) (citing Peoples State Bank v. Hickey, 55 Wn. App. 367,
372, 777 P.2d 1056 (1989)).
The trial court denied the motion for relief from judgment after reviewing the
“1078 pages of documentation submitted by [GPC and NAPA] in support of their
motion” and the “881 pages of documentation submitted by [Coogan] in opposition
to the motion.” CP at 22555. The trial court’s order notes its familiarity with the
parties’ prior motions on the issue of allegedly conflicting probate and trial evidence.
39
Coogan v. Borg-Warner Morse Tec Inc., et al., No. 98296-1
CP at 22556. For example, the trial court had previously denied a motion to admit
an unredacted probate declaration from Coogan’s widow because
[t]his probate document was in existence. And everybody knew about
it from the get-go. That’s been a common knowledge among the
Defendants in this case.
So if that was something that everybody wanted to explore, there
was a simple method by which they could have done so. . . .
....
I think that everybody had an opportunity to require that the
widow be here. Nobody chose to do that. Everybody knew about the
probate action and that there was some kind of discord. Everybody has
these probate documents well in sufficient time to have sent a Notice to
Adverse Party to Attend Trial, and nobody did it.
....
The question was: Up to the time of death, what was the
relationship like? And if you believe that there is some reason that Ms.
Coogan should have been present, it was just a simple matter to send
out the notice.
31 VTP (Mar. 14, 2017) at 9-10, 13. GPC and NAPA failed to timely pursue relevant
evidence from the probate matter, only to turn around and demand it be admitted
later. 6 That continued in their motion for relief from judgment.
6
This failure appears to be a consequence of GPC and NAPA’s trial strategy, which was
to focus exclusively on denying liability and to not argue the appropriate amount of
damages.
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Coogan v. Borg-Warner Morse Tec Inc., et al., No. 98296-1
The central premise of GPC and NAPA’s argument for relief from judgment
is that Coogan’s family and attorney deliberately kept any disputes about the quality
and nature of Coogan’s relationship with his widow hidden from the jury by waiting
until after trial concluded to make those arguments in probate court. But a review
of the record shows that is simply not the case: Coogan’s widow and daughters made
substantially similar arguments in probate court before trial in this case even began.
In probate motions filed in March 2016, Coogan’s widow argued she was
entitled to half the property acquired during her relationship with Coogan prior to
their marriage in 2011. CP at 20799 (“This Petition seeks a determination and
direction from the [Probate] Court as to whether or not Gerri Sue is entitled to all of
the jointly titled property and one half (1/2) of the non-jointly titled property which
had been jointly accumulated by [Coogan] and Gerri Sue as community property
during their twenty (20) year ‘marital like’ and marital relationship.” (emphasis
omitted)).
In a May 2016 motion to remove Coogan’s widow as personal representative
of Coogan’s estate, Coogan’s daughters disputed the notion that the nature and
quality of the widow’s relationship with Coogan prior to their marriage entitled her
to that property. CP at 20897 (“Not satisfied with her community property interest
in assets since her marriage in 2011, she seeks a further determination from this
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Coogan v. Borg-Warner Morse Tec Inc., et al., No. 98296-1
Court that she and Jerry Coogan had an equity relationship so she can add 16 more
years from which to claim a ‘community like’ interest in Jerry Coogan’s business,
residential real property, business real property, equipment, improvements, and
collector vehicles. . . . In fact, she is requesting that this Court declare that she and
Jerry Coogan were in an equitable relationship for two years before his divorce from
Caren Coogan was finalized in 1997.” (emphasis omitted)). While the daughters did
not file the same supporting declarations in 2016 as they did in 2018, they clearly
disagreed with the widow’s representations regarding her early relationship with
Coogan.
Contrary to GPC and NAPA’s claims, the quality and nature of Coogan’s
relationship with his widow was made an issue in the probate proceedings before
trial in this case even began. As the trial court noted, GPC and NAPA were
monitoring those proceedings and could have recognized that issue’s relevance to
loss of consortium damages. But GPC and NAPA did not make any arguments
regarding the appropriate amount of damages until after the jury returned its verdict.
Instead, their strategy at trial focused overwhelmingly on denying liability.
Coogan’s family and attorney are not responsible for GPC and NAPA’s liability-
focused trial strategy or their resulting lack of diligence in pursuing probate evidence
that could have challenged Coogan’s claimed damages. Under these circumstances,
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Coogan v. Borg-Warner Morse Tec Inc., et al., No. 98296-1
we hold the trial court did not abuse its discretion by denying GPC and NAPA’s
CR 60 motion for relief from judgment.
CONCLUSION
At the end of a 12 week trial, a unanimous jury rendered a verdict that is
supported by substantial evidence. Though that verdict is undeniably large, nothing
in the record unmistakably indicates it was the result of passion or prejudice or lies
so beyond the bounds of justice that no reasonable person could believe it is correct.
The trial court did not abuse its discretion by denying posttrial motions to set that
verdict aside as excessive. Nor did the trial court abuse its discretion by excluding
Dr. Schuster’s testimony or by denying the motion for relief from judgment based
on newly discovered evidence. Accordingly, we reverse the Court of Appeals in
part and reinstate the jury’s verdict in full.
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Coogan v. Borg-Warner Morse Tec Inc., et al., No. 98296-1
WE CONCUR:
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