Rebecca Lamonte, App. v. The Estate Of Sherman Lloyd Cook, Jr., Res. ( 2014 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
REBECCA LAMONTE, a single No. 69115-5-1
individual,
DIVISION ONE
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293 F. 1013,1014 (D.C. Cir. 1923) (evidence derived from a scientific
theory or principle is admissible only if the theory or principle has achieved general acceptance in the
relevant scientific community).
4 REQUEST FOR ADMISSION NO. 19 states that "you are liable forthe injuries sustained by
Rebecca LaMonte as a result ofthe rear end collision between Sherman Cook's vehicle and your vehicle
on May 30, 1997." REQUEST FOR ADMISSION NO. 21 states that "as a result of the rear end collision
..., [LaMonte] developed Fibromyalgia."
10
No. 69115-5-1/11
Bruington. Westerfield identified accident reconstruction expert Charles Lewis.5 On
May 7, Westerfield also filed a "Motion to Withdraw or Amend Plaintiff's Requests for
Admissions to Defendants Westerfield Deemed Admitted." Westerfield argued the
failure to allow withdrawal of the admissions would deny Westerfield the opportunity to
present a defense on the merits and LaMonte had not established prejudice.
Westerfield's attorney argued, in pertinent part:
From the inception of this case, the subject matter of these
Requests has been denied or challenged, as the claims against Mr.
Westerfield have been defended. The so-called two impact theory was
alleged in plaintiff's Complaint and was denied in defendants' Answer. Mr.
Westerfield answered interrogatories that described the sequence of
events involved in the accident, to include the swerving of the van in front
of him which blocked his view of Cook's and plaintiff's vehicles.
Westerfield retained and disclosed accident reconstructionist Richard
Chapman in 2001, who opined that the physical evidence did not". . .
support a conclusion that the Cook Volvo struck the rear of the LaMonte
Chrysler two separate times." Understanding that how this accident
occurred was hotly contested and very much at issue, plaintiff, through her
attorneys, retained and disclosed accident reconstruction expert Bryan
Jorgensen to challenge the opinions offered by Mr. Chapman.
In late 2011, plaintiff disclosed accident reconstruction expert Ward
Bruington. In the disclosure for Mr. Bruington, it was his opinion that Mr.
Cook's vehicle originally impacted Ms. LaMonte's vehicle, and that "[i]t is
then likely that Mr. Westerfield rear ended Mr. Cook's vehicle driving the
Cook vehicle back into the LaMonte vehicle... ." It is further worth noting
that even in plaintiff[s] Second Amended Plaintiffs Witness and Exhibit
List, plaintiff still includes Mr. Bruington and Mr. Jorgensen as witnesses to
be called at trial. For the 12 some years that this case has been pending,
the details as to how this accident occurred, and whether the actions of
Mr. Westerfield has been hotly contested, and plaintiff has proceeded
throughout the entirety of this case as if her April 4, 2000 Requests for
Admissions never existed.161
While Westerfield's motion to withdraw or amend the requests for admission was
pending, the case was reassigned to another judge for trial. On May 15, the judge
heard argument on the pending motion. The court granted Westerfield's motion to
5Westerfield's previous accident reconstruction expert Chapman died in November 2011.
6(Footnotes omitted) (alterations in original).
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No. 69115-5-1/12
withdraw the admissions by default. The court expressly found that LaMonte had not
established prejudice.7 The court also entered an order dismissing Cook as a party to
the lawsuit.
At the beginning of the trial, LaMonte argued she was entitled to use the Cook
admissions during opening statement and to rebut the testimony of the defense
accident reconstruction expert. Westerfield argued the admissions were inadmissible
because Cook was no longer a party to the action. The court ruled that the Cook
admissions were hearsay and LaMonte could not refer to the admissions during
opening statement or in her case in chief.
During the three-week jury trial, more than 20 witnesses testified including
LaMonte, Westerfield, and accident reconstruction experts Jorgensen, Bruington, and
Lewis.
LaMonte testified that as she was approaching the I-5 overpass, she put on the
brakes and stopped after she suddenly saw "brake lights, all the brake lights were
stopping in front of me." LaMonte said that she "was hit from behind, the air bag
deployed, Iwas hit again, and the last thing Iremember is my head falling into the
deflated air bag." On cross-examination, LaMonte admitted that in a 1997 recorded
interview, she said that she could not be sure whether there were two impacts.
Before calling accident reconstruction expert Jorgensen, LaMonte argued she
was entitled to introduce the Cook admissions because Jorgensen relied on the
7The court stated, in pertinent part:
Ihave significant concerns about the appellate issues at play here, and Ihave a
significant concern whether Judge McCullough's decision will be reversed for abuse of
discretion in failing to have an adequate record of prejudice to the plaintiff Ithink at
this point it would be an abuse of discretion for me not to consider the prejudice issue
and what Ithink is an evidentiary deficiency in terms ofthe lack of prejudice.
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No. 69115-5-1/13
admissions in forming his opinion.
The court ruled that LaMonte's expert could testify about the Cook admissions.
The court instructed the jury that the admissions were Cook's and not Westerfield's.
Jorgensen testified that in his opinion, "Westerfield strikes Cook and Cook strikes
LaMonte again, but on the corner this time." LaMonte's attorney displayed the Cook
admissions and asked Jorgensen to read the admissions and to explain the significance
of the admissions. Jorgensen testified that he relied on Cook's written statement to the
police and Cook's response to the requests for admission. Jorgensen testified, in
pertinent part:
[B]ecause Richard Westerfield's vehicle collided with [Cook's] vehicle,
[Cook's] vehicle collided with the rear ofthe LaMonte vehicle. And that
was admitted. And that - that was important as a cause and effect
relationship to the accident event.
On cross-examination, Jorgensen admitted he did not review Cook's response to the
requests for admission until two weeks before trial.
LaMonte's other accident reconstruction expert Bruington also testified that after
Westerfield's car hit Cook, Cook's car hit LaMonte's car "a second time." Bruington
testified, in pertinent part:
[Mr. Cook] can't stop in time and crashes into the back of Ms. LaMonte's
Chrysler.
And then behind Mr. Cook there's a mention of a van. This van
isn't involved in the crash. It - it turns off and gets to the shoulder of the
road. And behind that van is Mr. Westerfield driving a Geo. And then he
crashes into Mr. Cook's Volvo. And that causes Mr. Cook's Volvo to crash
into Ms. LaMonte's Chrysler a second time.
Westerfield testified that on the day of the accident, there was heavytraffic and
the "road spray was really bad." Westerfield said that when his car hit Cook's, "it
shoved [Cook] about three feet, maybe, into the I'll call it the left lane, and at the same
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No. 69115-5-1/14
time [Cook] accelerated, continuing on in the left lane."
Defense accident reconstruction expert Lewis testified that the impact of
Westerfield's car did not cause Cook's car to hit LaMonte's car a second time. Lewis
testified, in pertinent part:
The 1,600 pound Geo Metro that Mr. Westerfield was operating
then collided with the rear of [Cook's] Volvo and shoved it into the
oncoming lane partially....
The Geo Metro did not drive the Volvo into the rear of the LaMonte
vehicle and did not cause a second impact between the Volvo and
[LaMonte's] Chrysler.
During cross-examination, Lewis testified that in reaching his conclusion, he relied in
part on the testimony Cook gave in the perpetuation deposition that his car ended up on
the side of the road.
Before redirect, Westerfield asked for permission to play excerpts from the
videotaped perpetration deposition of Cook. After reviewing the videotape ofthe
deposition, the court ruled Westerfield could play excerpts of the perpetration
deposition. The court ruled the videotaped deposition was "clearly" a perpetuation
deposition and Cook's deposition testimony was not contrary to his admissions—Cook
"just says he can't remember, which is different than it being contrary" to the admission.
The court also ruled that during the cross-examination of Lewis, LaMonte had opened
the door to the deposition testimony.
Westerfield played excerpts ofthe videotaped perpetration deposition during the
redirect of Lewis. In the first deposition, Cook states he is not sure whether Westerfield
hit his car before or after he hit LaMonte.
QUESTION: Do you know whether or not Mr. Westerfield struck
the rear of your car before or after you initially made impact with the
LaMonte vehicle?
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No. 69115-5-1/15
ANSWER: I have no idea. It was too quick, too fast to - I - I
have no idea.
In the second deposition, Cook stated he did not know whether Westerfield's car
knocked him into LaMonte's car. Cook testified, "I don't remember the sequence."
The written jury instructions reiterate that the answers to the requests for
admission of nonparty Cook do not bind Westerfield. Jury "Instruction No. 20" states:
Non-party entity Sherman Cook's Answers to Requests for Admission
served by plaintiff have been admitted for a limited purpose. These
answers may be considered by you for the limited purpose of forming the
basis of the experts' opinions, and for no other purpose. These answers
are binding on Sherman Cook, but defendant Westerfield is not bound by
Cook's answers.
Jury "Instruction No. 18" states that if the juryfinds more than one entity
negligent, it should determine what percentage of negligence was attributable to each
entity. The instruction states that entities may include Westerfield and nonparty Cook.
Jury Instruction No. 18 states:
If you find that more than one entity was negligent, you must
determine what percentage of the total negligence is attributable to each
entity that proximately caused the injury to the plaintiff. The Court will
provide you with a special verdict form for this purpose. Your answers to
the questions in the special verdict form will furnish the basis by which the
court will apportion damages, if any.
Entities may include the defendant Richard Westerfield and non
party Sherman Cook.
15
No. 69115-5-1/16
The jury found Westerfield and Cook were negligent but that only nonparty
Cook's negligence was a proximate cause of the injury to LaMonte.8 The court entered
a judgment on the verdict dismissing the claims against Westerfield with prejudice.
ANALYSIS
LaMonte argues the trial court erred by (1) granting Westerfield's motion to
withdraw the admissions by default under CR 36(b), (2) ruling Cook's admissions were
hearsay, and (3) allowing Westerfield to introduce into evidence testimonyfrom the
perpetuation deposition of Cook.
1. Withdrawal of Admissions
LaMonte asserts the court abused its discretion in allowing Westerfield to
withdraw the admissions under CR 36(b).9 We review the trial court's decision on a
motion to withdraw or amend admissions under CR 36 for an abuse of discretion.
Santos v. Dean, 96 Wn. App. 849, 857-58, 982 P.2d 632 (1999). Atrial court abuses its
8The special verdict form states, in pertinent part:
We, the jury, answerthe questions submitted by the court as follows:
QUESTION NO. 1: Were any of the following negligent?
(Answer "yes" or "no" after the name ofthe defendant and each entity not party to
this action.)
Answer: Yes No
Defendant, Richard Westerfield _X_
Non-Party, Sherman Cook X
(If you answer Question No. 1 "no" as to the defendant, sign and return this
verdict. If you answer Question No. 1 "yes" as to the defendant, then answer Question
No. 2.)
QUESTION NO. 2: Was such negligence a proximate cause of injury to the
plaintiff?
(Answer "yes" or"no" after the name ofthe defendant and the name ofeach
entity, ifany, found negligent by you in Question No. 1.)
Answer: Yes No
Defendant, Richard Westerfield _X_
Non-Party, Sherman Cook _X_
9Preliminarily, LaMonte contends the trial judge did not have the authority to reconsider the
decision granting her motion to deem admitted the requests for admission propounded to Westerfield.
We disagree. Atrial judge has the authority to reconsider a ruling made by another judge. In re Estate of
Jones 170 Wn. App. 594, 605-06, 287 P.3d 610 (9m?y rpp also Adcox v. Children's Orthopedic Hosp. &
Med. Ctr.. 123 Wn.2d 15, 37, 864 P.2d 921 (1993). The record establishes thatWesterfield's motion to
withdraw oramend the requests for admission was pending when the case was transferred for trial.
16
No. 69115-5-1/17
discretion when its decision is manifestly unreasonable or is based on untenable
grounds. State ex rel. Carroll v. Junker. 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
Requests for admission are deemed conclusively established under CR 36(b)
unless the court permits amendment or withdrawal of the admission. CR 36(b) states:
Effect of Admission. Any matter admitted under this rule is conclusively
established unless the court on motion permits withdrawal or amendment
of the admission. Subject to the provisions of rule 16 governing
amendment of a pretrial order, the court may permit withdrawal or
amendment when the presentation of the merits of the action will be
subserved thereby and the party who obtained the admission fails to
satisfy the court that withdrawal or amendment will prejudice him in
maintaining his action or defense on the merits. Any admission made by a
party under this rule is for the purpose of the pending action only and is
not an admission by him for any other purpose nor may it be used against
him in any other proceeding.
The purpose of CR 36 is to" 'obtain admission of facts as to which there is no
real dispute and which the adverse party can admit cleanly, without qualifications.'"
Reid Sand & Gravel. Inc. v. Bellevue Props.. 7 Wn. App. 701, 704, 502 P.2d 480 (1972)
(quoting Weyerhaeuser Sales Co. v. Holden. 32 Wn.2d 714, 726, 203 P.2d 685 (1949)).
" 'Accordingly, requests for admissions as to central facts in dispute are beyond the
proper scope of the rule.'" Reid, 7 Wn. App. at 704 (quoting Pickens v. Equitable Life
Assurance Soc'v of the U.S.. 413 F.2d 1390, 1393 (5th Cir. 1969)).
CR 36(b) permits the court to exercise its discretion to grant a motion to withdraw
admissions only if "presentation of the merits of the action will be subserved," and the
party who obtained the admission fails to show withdrawal will result in prejudice "in
maintaining his action or defense on the merits." Hadlev v. United States, 45 F.3d 345,
1348 (9th Cir. 1995); Santos, 96 Wn. App. at 858-59; see also Asea. Inc. v. S. Pac.
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No. 69115-5-1/18
Transp. Co., 669 F.2d 1242, 1248 (9th Cir. 1981).10
The first prong of the test is met when upholding the admissions would
"practically eliminate any presentation of the merits of the case." Hadlev. 45 F.3d at
1348. LaMonte concedes the first prong is met. We accept the concession as well
taken. The admissions are contrary to the position Westerfield steadfastly maintained
since 2000.
LaMonte has the burden to establish the prejudice prong of the test. Hadlev, 45
F.3d at 1348. "The prejudice contemplated by Rule 36(b) is 'not simply that the party
who obtained the admission will now have to convince the factfinder of its truth.'"
Hadlev, 45 F.3d at 1348 (quoting BrookVill. N. Assocs. v. Gen. Elec. Co., 686 F.2d 66,
70 (1st Cir. 1982)).11 "The prejudice contemplated by Rule 36(b) 'relates to the difficulty
a party may face in proving its case'[,] 'e.g., caused by the unavailability of key
witnesses, because of the sudden need to obtain evidence' with respect to the
questions previously deemed admitted.'" Santos. 96 Wn. App. at 859, 860 (quoting
Fed. Deposit Ins. Corp. v. Prusia, 18 F.3d 637, 640 (8th Cir. 1994); Hadlev, 45 F.3d at
1348).
" 'The necessity of having to convince the trier of fact of the truth of a matter
erroneously admitted is not sufficient.'" Santos, 96 Wn. App. at 859 (quoting Prusia, 18
F.3d at 640). Under CR 36(b), the trial court must "focus on the prejudice that the
nonmoving party would suffer at trial." Conlon v. United States, 474 F.3d 616, 623 (9th
10 In construing CR 36, the court ofappeals has looked to federal case law as persuasive
authority. Santos, 96 Wn. App. at 859.
11 We note Hadlev misquotes Brook Village: however, the error does not change the meaning of
the quote. The correct Brook Village language states, "The prejudice contemplated by the Rule is not
simply that the party who initially obtained the admission will now have to convince the factfinder of its
truth." Brook Vill.. 686 F.2d at 70 (emphasis added).
18
No. 69115-5-1/19
Cir. 2007).12
Here, the court ruled that LaMonte did not establish prejudice under CR 36(b).
The court ruled, in pertinent part:
[T]he plaintiff has been on notice for years about the defense theory of the
case and the plaintiff is represented by two able counsel, who are
obviously prepared to rebut the defense case.
So it's really hard to say that the plaintiff is prejudiced by having to
present their case . . . because they're fully prepared to do that.
... I am a little concerned about the kind of the clear policy in the
appellate case law favoring resolution on the merits as opposed to - and it
would be a completely different matter if somebody had affirmatively
answered X .. . and then they were stuck with the admission.
But what we have here is a request for admission which apparently
wasn't forwarded to counsel, then went unanswered. So it was deemed
admitted, a significant period of time went by. . ..
Clearly there was originally a denial on several bases in the original
answer and actually motion practice and multiple instances in which the
plaintiff was put on notice that liability was contested on various grounds.
The record supports the determination that LaMonte did not meet her burden of
showing that withdrawal of the default admissions resulted in " 'the unavailability of key
witnesses'" or the " 'sudden need to obtain evidence with respect to the questions
previously deemed admitted.'" Santos, 96 Wn. App. at 859 (quoting Hadlev, 45 F.3d at
1348). When the case was initially scheduled for trial on February 25, 2002, LaMonte
identified an accident reconstruction expert witness to testify at trial. In the Amended
Joint Statement of Evidence filed one week before the scheduled trial date in May 2012,
LaMonte identified accident reconstruction experts Bruington and Jorgensen.
Nonetheless, LaMonte argues that because the motion to withdraw the
admissions was made at the beginning of trial, the court erred in granting Westerfield's
motion to withdraw the default admissions under CR 36(b). LaMonte relies on Brook
12 (Emphasis added.)
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No. 69115-5-1/20
Village to argue the court erred in failing to evaluate the prejudice prong under CR 36(b)
under a manifest injustice standard. Brook Village is distinguishable.
In Brook Village, plaintiff Brook Village filed a lawsuit against General Electric
(GE) alleging modular housing units were defective, and propounded requests for
admission to GE. Brook Vill.. 686 F.2d at 68. GE responded to the requests for
admission nine months later. Brook Village immediately moved to strike the responses
and deem as admitted the requests for admission. The court granted the motion.
Brook Vill., 686 F.2d at 69. GE filed repeated motions asking the court to reconsider
and permit withdrawal of the admissions. The court denied the motions for
reconsideration and included the admission in the pretrial Federal Rule of Civil
Procedure (FRCP) 1613 order. Brook Vill.. 686 F.2d at 69, 71.
At the conclusion of the bench trial, the court found GE liable and assessed
damages against GE. However, the court did not give conclusive effect to the
admissions on damages. Brook Vill.. 686 F.2d at 69-70. Instead, the court relied on the
testimony at trial. Brook Vill.. 686 F.2d at 69.
On appeal, the First Circuit reversed, holding the trial court abused its discretion
by ignoring the admissions. Brook Vill., 686 F.2d at 73-74. The court held, "[A] party
who obtains an admission by default does not waive his right to rely thereon by
presenting evidence at trial that overlaps the matters controlled by the admission."
Brook Vill.. 686 F.2d at 72. The court concluded that because the admissions were part
of the FRCP 16 pretrial order, the trial court could amend the pretrial order only to
prevent manifest injustice; "a more restrictive standard" governs "a request to avoid the
13 FRCP 16(e) provides, in pertinent part: "The court may modify the order issued after a final
pretrial conference only to prevent manifest injustice."
20
No. 69115-5-1/21
effect of an admission once trial [begins]." Brook Vill., 686 F.2d at 71.
Here, unlike in Brook Village, LaMonte did not promptly file a motion to deem the
requests for admission admitted after serving them on Westerfield in April 2000.
Instead, unlike in Brook Village. LaMonte never mentioned the requests for admissions
until 12 years later before the trial in May 2012. Further, the court granted the motion to
withdraw the admissions by default under CR 36(b) before opening statements and the
presentation of evidence. See Hadlev, 45 F.3d at 1348 ("Courts are more likely to find
prejudice when the motion for withdrawal is made in the middle of trial."); 999 v. C.I.T.
Corp.. 776 F.2d 866, 869-70 (9th Cir. 1985) (affirming denial of motion to withdraw
admissions in "the middle of trial" when plaintiff had "nearly rested its case" where
plaintiff relied heavily on admission and withdrawal did not subserve merits); Pedroza v.
Lomas Auto Mall. Inc., 258 F.R.D. 453, 467 (D.N.M. 2009) (plaintiffs met burden of
establishing that withdrawal would prejudice them because parties had longstanding
understanding that subject matter of admission was undisputed).
But even if a manifest injustice standard applied, the record supports the decision
to allow Westerfield to withdraw the default admissions under CR 36(b). There is no
dispute that Westerfield consistently denied liability, the parties engaged in lengthy
discovery, and the parties retained expert witnesses to testify on the contested issues of
liability and damages.
2. Cook Admissions
LaMonte also argues the court erred by ruling the Cook admissions were
hearsay and precluding her from referring to the admissions in her opening statement.
This court reviews a trial court's evidentiary decision for abuse of discretion. Sintra. Inc.
21
No. 69115-5-1/22
v. City of Seattle. 131 Wn.2d 640, 662-63, 935 P.2d 555 (1997). Abuse of discretion
occurs only when no reasonable person would take the view adopted by the trial court.
Crescent Harbor Water Co. v. Lvseng, 51 Wn. App. 337, 344, 753 P.2d 555 (1988).
Admissions under CR 36 are subject to the rules of evidence. Walsh v. McCain Foods
Ltd.. 81 F.3d 722, 726 (7th Cir. 1996) (citing 8A Charles Alan Wright, et. al, Federal
Practice and Procedure: Civil 2d § 2264, at 571-72 (1994)); see ajso 3A Karl B.
Tegland, Washington Practice: Rules Practice CR 36, at 832 (6th ed. 2013).
ER 801(d)(2) is an exception to the hearsay rule that allows the introduction of
admissions of a party opponent. Walsh. 81 F.3d at 726 (quoting 8A Wright, Federal
Practice and Procedure: Civil 2d § 2264, at 571-72 (" 'It is only when the [CR 36]
admission is offered against the party who made it that it comes within the exception to
the hearsay rule for admissions of a party opponent.'")). Because Cook was not a party
at the time of trial, the hearsay exception for admissions of a party opponent under ER
801(d)(2) did not apply. See 5B Karl B.Tegland, Washington Practice: Evidence
Lawand Practice § 801.34, at 387 (5th ed. 2007) (ER 801(d)(2) "does not authorize the
introduction of statements by, or on behalf of, someone who is not a party to the present
proceeding."); 5BTegland, Washington Practice: Evidence Law and Practice §
801.50, at 422 ("If a case begins as a multiparty case, but one of the parties is removed
from the case by dismissal, ... the admissions of the party who has been removed are
inadmissible against the party who remains in the case."). The court did not err by
ruling the admissions of nonparty Cook were hearsay.
In any event, the trial court allowed LaMonte's accident reconstruction expert
Jorgensen to testify about the Cook admissions. During cross-examination of
22
No. 69115-5-1/23
Westerfield's accident reconstruction expert, LaMonte also asked about the Cook
admissions and referred to the Cook admissions in closing argument. During closing
argument, LaMonte argued that Cook admitted there was a second impact to her car:
"[Y]ou have Mr. Cook's admission that 'I was knocked into LaMonte because
Westerfield rear-ended me.'" In rebuttal, LaMonte told the jury, "I want to remind you
that this is Mr. Cook's admission that [']because Richard Westerfield[ ]collided with
[Cook's] vehicle - [Cook's] vehicle collided with the rear-end of Becky LaMonte's
vehicle.f ]"
3. Admission of Perpetuation Deposition Testimony
LaMonte contends the court erred by permitting Westerfield to introduce excerpts
from the perpetuation deposition of Cook into evidence. LaMonte asserts the deposition
testimony contradicts the responses to the requests for admission.14
After viewing videotapes of the perpetuation deposition, the court concluded the
deposition testimony did not contradict Cook's admissions.15 The record supports the
court's determination. In response to the requests for admission, Cook admitted that
"because Richard Westerfield's vehicle collided with [his] vehicle, [his] vehicle collided
with the rear end of Rebecca LaMonte's vehicle." In his deposition, Cook states that he
could not be sure about the sequence of the events of the accident and that his car
came to a rest on the left-hand shoulder of the road.
14 We deny the motion to supplement the record on appeal with the videotapes ofthe Cook
deposition. Thecourt may direct transmittal ofadditional clerk's papers and exhibits "[i]f the record is not
sufficiently complete to permit a decision on the merits of the issues presented for review." RAP 9.10.
Here, the report of proceedings contains a transcript of the deposition.
15 Under CR 32(a)(3), "[t]he deposition of a witness, whetheror not a party, may be used byany
party for any purpose if the court finds ... that the witness is dead." ER 804(b)(1) provides that the
hearsay rule is inapplicable to deposition testimony taken in the courseofthe same proceeding if the
declarant is unavailable. A declarant is unavailable if he is dead. ER 804(a)(4).
23
No. 69115-5-1/24
The record also supports the ruling that LaMonte opened the door to introduction
of the perpetuation deposition testimony. See State v. Warren, 134 Wn. App. 44, 64-65,
138 P.3d 1081 (2006). For example, during the cross-examination of accident
reconstruction expert Lewis, LaMonte asked whether Lewis relied on Cook's deposition
testimony:
Q. ... [W]e have very little evidence as to where the cars went.
Isn't that true?
A. I believe just the testimony of the people who were in the
vehicles.
Q. Right. And very little evidence as to what really happened to
the vehicles after impact. Isn't that fair?
A. No physical evidence. Just Mr. Cook's description of his
final position on the opposite shoulder.
Q. Okay. Would it be fair to say that in your simulation you did
not consider the admission, ["]please admit or deny that on May 30,
1997["] - and this is admission to Mr. Cook- ["]at approximately 12:30
p.m., because Richard Westerfield's vehicle collided with your vehicle,!"]
being Mr. Cook's vehicle, ["]your vehicle collided with the rear end of
Rebecca LaMonte's vehicle.!"] You didn't consider that, correct?
A. I consider everything. I consider all testimony.
Q. You ignored this, though --
A. No.
Q. - for your simulation?
A. No. Idon't ignore anybody's testimony. Itry to see if it fits
the physical facts and then Icome up with my analysis. And if this jury
believes that Mr. Cook has more information and, you know, ifthis jury
believes that declaration is accurate, then they will find accordingly.
Q. In doing your simulations -
A. Yes.
Q. - you ran your different scenarios?
A. Yes.
Q. You did not run a scenario that addressed Mr. Bruington's
set of facts?
A. No. He came up with that on his own. I didn't know it
existed until I read his deposition and saw his simulation.
Q. Right. But you did know that Mr. Cook in his admission had
said that he was hit by the Geo into the LaMonte vehicle?
A. I did.
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No. 69115-5-1/25
In sum, we conclude the trial court did not abuse its discretion by allowing
withdrawal of the admissions by default under CR 36(b), ruling the admissions of
nonparty Cook were inadmissible, and allowing Westerfield to introduce excerpts of the
perpetuation deposition, and affirm.
SUO^WOQ o^-t
WE CONCUR:
25