Ramanpreet Kumar, V. Katharine R. Appleton ( 2023 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
RAMANPREET KUMAR, an individual, No. 84899-2-I
Respondent, DIVISION ONE
v. UNPUBLISHED OPINION
KATHARINE R. APPLETON, Executor of
the Estate of William George Appleton, Jr.,
and “JANE DOE” APPLETON, both
individually and on behalf of the marital
community composed thereof,
Appellants.
FELDMAN, J. — Katharine Appleton, Executor of the Estate of William
Appleton (Appleton), appeals from a jury verdict and judgment awarding
Ramanpreet Kumar $6.5 million in noneconomic damages caused by a motor
vehicle collision as to which Appleton admitted liability. 1 Finding no reversible
error, we affirm.
I
On December 10, 2015, Appleton’s vehicle collided with Kumar’s vehicle
after Appleton turned left through an intersection without yielding the right-of-way
to Kumar. Three days after the collision, Kumar went to the emergency room
1 We use “Appleton” in this opinion to refer to both William Appleton and his estate, which
replaced him as the defendant after his death unrelated to the motor vehicle collision.
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complaining of pain in her neck and right hip from the motor vehicle collision. The
emergency room physician diagnosed Kumar with an acute cervical strain and
right hip strain.
Almost a year later, following extensive chiropractic and massage therapy
treatments Kumar’s treating physician, Dr. Alma Garcia, diagnosed Kumar with
“lumbosacral injury with a probable underlying joint injury with probable
myofascial component, and right sacroiliac and piriformis involvement.” 2 Kumar
underwent physical therapy and received cortisone injections to her right
sacroiliac joint (SI joint) every six months.
Kumar returned to Dr. Garcia in April 2019 for another cortisone injection.
Kumar informed Dr. Garcia that her hip pain from the 2015 collision had not
improved. Given the lack of improvement, Dr. Garcia ordered an MRI, which
revealed Kumar has osteitis condendans ilii (OCI). OCI is a thickening of the iliac
bone. It is generally asymptomatic, as it was here prior to the 2015 collision.
Kumar sued Appleton for damages caused by the collision. Following
discovery, including a CR 35 examination of Kumar by Dr. James Harris, 3 Kumar
filed a motion for partial summary judgment seeking dismissal of each and all of
the causation defenses set forth in Appleton’s answer. The trial court granted the
motion. Before trial, Kumar filed motions in limine to exclude the testimony of two
2 “Lumbar” refers to the lower back. The “sacrum” is a fusion of vertebrae comprising the base of
the spine. The “ilium” is a bone forming part of the pelvis. The “sacroiliac joint” is where the ilium
and sacrum come together. The “piriformis” is a muscle that connects to the outer hip across the
sacrum. “Myofascial pain” refers to muscle spasms and tension related to muscle strain.
3 CR 35 allows a trial court, upon a motion for good cause, to order a party to submit to a physical
examination by a physician when the physical condition of that party is in controversy. CR
35(a)(1).
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of Appleton’s expert witnesses, Dr. Harris and Dr. Dean Shibata, because their
opinions that Kumar’s OCI is causing her ongoing pain contradicted the trial
court’s summary judgment ruling striking Appleton’s causation defenses. The trial
court granted these motions.
At trial, Dr. Garcia testified that the 2015 motor vehicle collision caused
Kumar to suffer a permanent “lumbosacral injury with sacroiliac dysfunction.”
Regarding treatment, Dr. Garcia stated that injections into the SI joint usually
alleviate this type of pain for five to ten years, after which surgery may be
required. Kumar testified that her hip is in constant pain, and her friends and a
coworker testified that her injury has limited her ability to do physical activities
and caused her to become emotionally “soulless.”
The jury awarded Kumar $6.5 million in noneconomic damages, consisting
of $5 million for past and $1.5 million for future noneconomic damages. Appleton
filed a motion for a new trial, which the trial court denied with the exception of
lowering the interest rate on the judgment from 11 percent to 9 percent. Appleton
timely appeals.
II
A. Award of partial summary judgment to Kumar
In her summary judgment motion, Kumar requested that the trial court
strike all of the causation defenses that Appleton raised in his answer, including
the following:
3. Any and all damages and/or injuries sustained by [Kumar], if
any, may have preexisted the events alleged against [Appleton]
by [Kumar] in the Amended Complaint, or otherwise have been
caused by subsequent events and/or instrumentalities having no
connection to [Appleton].
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....
7. Any and all damages and/or injuries sustained by [Kumar], if
any, may not have been foreseeable and/or may have been
caused by or contributed by intervening causes that [Appleton]
had no control over and for which they are not legally
responsible
(Emphasis added.) Appleton claims the trial court erred in granting the motion
because these causation issues should have been decided by the jury. We
disagree.
We review “summary judgment orders de novo, engaging in the same
inquiry as the trial court.” Desranleau v. Hyland’s, Inc., 10 Wn. App. 2d 837, 842,
450 P.3d 1203 (2019). We consider only “evidence and issues called to the
attention of the trial court.” RAP 9.12. “Summary judgment is warranted only
when there is no genuine dispute of material fact and the moving party is entitled
to judgment as a matter of law. CR 56(c). The facts and all reasonable inferences
are viewed in the light most favorable to the nonmoving party.” Desranleau, 10
Wn. App. 2d at 842. We also review de novo a trial court’s evidentiary rulings
made in conjunction with a summary judgment motion. Watness v. City of
Seattle, 16 Wn. App. 2d 297, 305, 481 P.3d 570 (2021).
Critical here, summary judgment motions are governed by “‘a burden-
shifting scheme.’” Welch v. Brand Insulations, Inc., 27 Wn. App. 2d 110, 114, 531
P.3d 265 (2023) (quoting Bucci v. Nw. Tr. Servs., Inc., 197 Wn. App. 318, 326,
387 P.3d 1139 (2016)). “The moving party bears the initial burden ‘to prove by
uncontroverted facts that there is no genuine issue of material fact.’” Id. (quoting
Jacobsen v. State, 89 Wn.2d 104, 108, 569 P.2d 1152 (1977)). If the moving
party satisfies its burden, then the burden shifts to the nonmoving party to “‘set
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forth specific facts evidencing a genuine issue of material fact for trial.’” Id.(quoting Schaaf v. Highfield, 127 Wn.2d 17, 21, 896 P.2d 665 (1995)).
Kumar plainly satisfied her initial burden on summary judgment. In her
summary judgment motion, Kumar argued that the 2015 collision was the sole
cause of the pain for which she would be seeking damages at trial. Kumar relied
on declarations from Dr. Garcia stating that Kumar had no history of back or hip
pain or disability prior to the 2015 collision, that she had been continually
experiencing pain in the same region of her right hip and lower back since the
collision, that Dr. Garcia diagnosed her with a “lumbosacral injury with a probable
underlying joint injury with probable myofascial component, and right sacroiliac
and piriformis involvement,” and that this diagnosis is “more likely than not, with a
reasonable degree of medical certainty, related to the December 10, 2015, motor
vehicle collision.”
Kumar also submitted evidence showing that her OCI condition preexisted
and was asymptomatic prior to the 2015 collision. Kumar then cited Washington
precedent holding that such a preexisting condition cannot be a proximate cause
of damages resulting from a negligent act where, as here, that condition was
asymptomatic prior to the accident. 4 Because Kumar satisfied her initial burden
of showing that there is no genuine issue of material fact regarding causation for
her claimed injuries, the burden of production shifted to Appleton (the nonmoving
party) to “‘set forth specific facts evidencing a genuine issue of material fact for
4 Little v. King, 160 Wn.2d 696, 705, 161 P.3d 345 (2007); Harris v. Drake, 152 Wn.2d 480, 494,
99 P.3d 872 (2004); Hoskins v. Reich, 142 Wn. App. 557, 570, 174 P.3d 1250 (2008).
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trial.’” Welch, 27 Wn. App. 2d at 115 (quoting Schaaf, 127 Wn.2d at 21).
Where, as here, the moving party satisfies their initial burden and the
burden of production shifts to the nonmoving party, that party “cannot rely on
‘speculation, argumentative assertions that unresolved factual issues remain, or
in having its affidavits considered at face value.’” M.E. v. City of Tacoma, 15 Wn.
App. 2d 21, 31-32, 471 P.3d 950 (2020) (quoting Seven Gables Corp. v.
MGM/UA Entm’t Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986)). Expert testimony is
generally required on the issue of medical causation. Street v. Weyerhaeuser
Co., 189 Wn.2d 187, 198, 399 P.3d 1156 (2017). That testimony must be based
on reasonable medical certainty or probability and cannot be based on
speculation, conjecture, or mere possibility. Desranleau, 26 Wn. App. 2d at 438.
Additionally, the “expert must support [their] opinion with specific facts, and a
court will disregard expert opinions where the factual basis for the opinion is
found to be inadequate.” Woodward v. Lopez, 174 Wn. App. 460, 468, 300 P.3d
417 (2013) (quoting Rothweiler v. Clark County, 108 Wn. App. 91, 100, 29 P.3d
758 (2001)). An expert’s opinion that is based on a conclusion or an assumption
instead of facts “is not evidence which will take a case to the jury.” Theonnes v.
Hazen, 37 Wn. App. 644, 648, 681 P.2d 1284 (1984).
Despite this burden shifting framework, Appleton’s brief in opposition to
Kumar’s summary judgment motion is conclusory and unsupported by requisite
evidence. Appleton devoted a single paragraph to the issue of alternative causes
of Kumar’s pain. Regarding injuries that preexisted the 2015 motor vehicle
accident, Appleton conceded that “there does not appear to be any preexisting
symptomatic condition just prior to the [2015] accident.” By conceding this critical
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factual issue and ignoring the cases that Kumar cited on this point, Appleton
effectively agreed that there are no fact issues regarding causation from
preexisting events or injuries (such as OCI).
Turning to subsequent events, including intervening and superseding
causes, Appleton argued that Kumar “suffered from additional injuries and
underwent further treatment for a motor vehicle accident and work-related injury
that occurred in 2018 and impacted her ability to continue in her job position at
the time.” Appleton stated these “subsequent injuries . . . affect the outcome of
issues in this case and should be presented to a trier of fact.” But despite alluding
to these subsequent injuries, Appleton did not explain how they caused any of
the damages that Kumar was seeking at trial. Nor did Appleton present expert
testimony on this critical point, as required to establish medical causation. See
Street, 189 Wn.2d at 198.
Finally, Appleton relied on Dr. Harris’ opinion that the 2015 collision did
not cause Kumar to suffer an “anatomic structural injury”—which Dr. Harris
defined as “fracture, dislocation, ligament or tendon disruption or laceration,
significant injury to the integument, or a neurovascular injury”—and that Kumar
“instead suffered nonspecific myofascial pain.” But the lack of an “anatomic
structural injury” to Kumar following the 2015 collision is irrelevant because that
term, according to Dr. Harris’ own definition, does not encompass the injuries
diagnosed by Dr. Garcia, namely joint pain and sacroiliac dysfunction.
Additionally, in reaching his conclusion that Kumar only suffered
“myofascial pain” from the collision, Dr. Harris relied solely on photographs of the
accident scene and studies of how people are typically injured in the type of
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motor vehicle collision that would have produced the damage to the vehicles
depicted in the photographs. Washington courts have found that an expert’s
opinion based on information gathered in human volunteer crash testing is
speculative when, as here, it does consider how the accident affected the
specific subject at issue. See Stedman v. Cooper, 172 Wn. App. 9, 19-20, 292
P.3d 764 (2012) (rejecting expert’s conclusion that plaintiff “could not have been
injured in the accident because the force of the impact was too small”). For this
reason too, Appleton failed to carry his burden to set forth specific facts and
admissible evidence supporting his causation defenses. On this record, the trial
court correctly granted Kumar’s motion for summary judgment dismissing these
defenses and determined medical causation as a matter of law. 5
Notwithstanding the above analysis, Appleton argues that he established
genuine issues of material fact regarding causation because “Dr. Harris
disagreed with Dr. Garcia about the nature and extent of the accident-related
injuries.” As explained above, Appleton could not avoid summary judgment by
merely asserting that his experts disagree with Kumar’s experts. See M.E., 15
Wn. App. 2d at 31-32. Instead, Appleton was required to provide admissible
expert testimony that was not based on speculation, conjecture, assumptions, or
mere possibility, which he failed to do. See Desranleau, 26 Wn. App. 2d at 438.
5 The trial court’s summary judgment order also determined that there were no genuine issues of
material fact as to whether Kumar’s past medical expenses between the date of the 2015 collision
and July 2019 were reasonable in cost, medically necessary, and causally related to the collision.
Kumar later dismissed all of her economic damages claims, and these past medical expenses
were not included in the jury’s verdict or trial court’s judgments on the verdict. Therefore, we do
not separately address whether the trial court erred in granting summary judgment as to the
recoverability of these past medical expenses other than as discussed in the text above with
regard to causation generally.
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Notably, Dr. Harris agreed with Dr. Garcia that Kumar began experiencing pain in
her right hip area after the 2015 motor vehicle collision and that she was still
experiencing this same pain years after the collision. In light of the materials
Appleton submitted on summary judgment, his conclusory assertions about the
“nature and extent” of Kumar’s pain were insufficient to avoid summary judgment.
Next, Appleton argues that Dr. Harris’ reliance on OCI as the only source
of Kumar’s ongoing pain did not render all his opinions inadmissible because he
was not required to explain why Kumar is still experiencing pain. This argument
ignores the principle that experts must adequately explain the foundation for their
opinions. See Woodward, 174 Wn. App. at 468. Because Appleton conceded on
summary judgment that evidence of OCI is inadmissible to dispute causation, Dr.
Harris would not have been able to explain to a jury why he ultimately disagreed
with Kumar’s experts that OCI is causing the pain for which she was seeking
recovery.
To avoid this result, Appleton argues that Harris v. Drake, 152 Wn.2d 480,
493-94, 99 P.3d 872 (2004), and Little v. King, 160 Wn.2d 696, 704-05, 161 P.3d
345 (2007)—which generally recognize that evidence of asymptomatic
preexisting conditions is inadmissible on the issue of causation—are
distinguishable because, unlike the experts in those cases, Dr. Harris could
somehow offer “admissible evidence on causation.” But Appleton does not
explain what this evidence is and why it would be admissible. Because Appleton
failed to establish fact issues as to his causation defenses, the trial court did not
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No. 84899-2-I/10
err in granting partial summary judgment to Kumar. 6
B. Exclusion of Drs. Harris and Shibata as defense expert witnesses
In her motions in limine to exclude the expert testimony of Drs. Harris and
Shibata, Kumar argued that their testimony regarding causation was inadmissible
because it contradicted the trial court’s summary judgment ruling dismissing
Appleton’s causation defenses. The trial court granted Kumar’s motion and
excluded Dr. Harris’ and Dr. Shibata’s testimony because it would be unhelpful,
speculative, and unreliable. Appleton claims that the trial court abused its
discretion in so ruling. We disagree.
In ruling on motions in limine, trial courts are afforded wide discretion in
determining the admissibility of expert testimony, and these rulings are reviewed
for an abuse of discretion. Johnston-Forbes v. Matsunaga, 181 Wn.2d 346, 352,
333 P.3d 388 (2014). An expert witness may only offer an opinion that will “assist
the trier of fact to understand the evidence or to determine a fact in issue.” ER
702. Where, as here, an expert seeks to address a defense that has been
stricken as a matter of law, it is axiomatic that such testimony cannot assist the
trier of fact in determining a fact in issue as ER 702 requires. See e.g., Magana
v. Hyundai Motor Am., 123 Wn. App. 306, 315, 94 P.3d 987 (2004) (“It is error for
the jury to consider evidence that the court either has not admitted or has
stricken.”). That is precisely what occurred here, making it unnecessary to
6 On appeal, Appleton also assigns error to the trial court’s denial of his motion for
reconsideration. We decline to address this issue on the merits or consider any evidence
submitted with Appleton’s motion for reconsideration because Appleton’s appellate brief offers no
supporting argument as to why the trial court erred in denying reconsideration. See Christian v.
Tohmeh, 191 Wn. App. 709, 727-28, 366 P.3d 16 (2015) (“[T]his court does not review issues not
argued, briefed, or supported with citation to authority.”) (citing RAP 10.3(a)(6)).
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address alternative grounds for granting Kumar’s motions.
In her motions in limine regarding Drs. Harris and Shibata, Kumar argued
that their opinions related to the causation contradicted the trial court’s summary
judgment ruling and therefore would be confusing, unhelpful, speculative, and
unreliable. Appleton’s responsive motion did not address these reasons for
excluding Dr. Harris. As to Dr. Shibata, Appleton argued that he should be
allowed to address “any other conditions if [Kumar] opens the door to discussion
of these issues, including the [OCI] condition.” At the hearing on the motions in
limine, when the court asked for an example of what Dr. Harris could say at trial
without violating the summary judgment order, Appleton responded that Dr.
Harris “would not say what he believes it [the pain] is from; he can just argue I
disagree with Plaintiff’s providers as to what they believe it is.”
The trial court did not abuse its discretion when it rejected these
arguments. The trial court correctly noted that any testimony from Dr. Harris
about OCI would be “irrelevant” based on the summary judgment ruling striking
Appleton’s causation defenses. The trial court likewise concluded that Dr.
Shibata was merely “attempting to put that issue [OCI] back in front of the jury as
a preexisting condition that affects the issues left in the case . . . [and] it’s just not
relevant.” Both witnesses would have testified that Kumar’s ongoing pain was
unrelated to the 2015 collision and was instead caused by OCI. But the trial
court’s summary judgment ruling striking all of Appleton’s alternative causation
defenses clearly prohibited his experts from opining that OCI is causing Kumar’s
ongoing pain. Because it was not possible for Dr. Harris or Dr. Shibata to offer
admissible testimony on causation in conformance with the trial court’s summary
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judgment ruling, the trial court did not abuse its discretion in granting Kumar’s
motion to preclude them from testifying at trial.
C. References to insurance during voir dire
Appleton argues the trial court “erred by interjecting insurance
unnecessarily into the trial” during jury selection. We disagree.
Before trial, Kumar submitted proposed voir dire questions that asked
potential jurors whether they or anyone they knew had experience working in the
insurance industry. The court overruled Appleton’s objection to these proposed
questions, reasoning that prospective jurors “may have deeply held beliefs that . .
. simply make it impossible for them or too difficult for them to follow the law as
instructed, and some of those can be related to issues involving insurance.” The
trial court also denied Appleton’s motion in limine to prohibit references to
insurance, but clarified that “questions may not imply this or other similar
defendants are insured.” At the beginning of voir dire, the trial court asked
Kumar’s proposed insurance-related questions and instructed jurors to raise their
hands if they answered in the affirmative. Kumar’s counsel later followed up with
one of those jurors, who was ultimately stricken for cause without objection from
Appleton.
A trial court’s ruling on the scope and content of voir dire is reviewed for
an abuse of discretion. State v. Frederiksen, 40 Wn. App. 749, 752-53, 700 P.2d
369 (1985). While ER 411 states that “[e]vidence that a person was or was not
insured against liability is not admissible upon the issue whether the person
acted negligently or otherwise wrongfully,” it does not prohibit mentioning
insurance for “another purpose.” ER 411; Terrell v. Hamilton, 190 Wn. App. 489,
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499, 358 P.3d 453 (2015). Critical here, Washington courts have long permitted
questioning relating to insurance during voir dire to discover bias among potential
jurors to justify a challenge for cause. See Popoff v. Mott, 14 Wn.2d 1,8-9, 126
P.2d 597 (1942).
As both ER 411 and relevant case law permit, the references to insurance
during voir dire were for “another purpose” within the meaning of the rule, namely
to discover bias among potential jurors. Moreover, any prejudice from these
references to insurance was cured by final jury instruction 11, which stated,
“Whether or not a party has insurance . . . has no bearing on any issue that you
must decide.” Therefore, we conclude that the trial court did not abuse its
discretion by permitting reference to insurance during voir dire.
D. Juror questions about Kumar’s fears of childbirth
Appleton argues the trial court erred by permitting Kumar to answer a
juror’s questions asking, “Does this pain affect your desire to have children? Is it
too painful or would it be prohibitive?” Appleton objected to these questions
based on ER 611(b) as outside the scope of Kumar’s direct testimony. The trial
court overruled the objection because Dr. Garcia had previously testified that a
potential future treatment option for Kumar included a surgery that would prevent
her from giving birth naturally. In response to the juror question, Kumar said the
pain from the collision made her scared to get pregnant and that this fear
contributed to her divorce from her husband. Because the trial court acted within
its discretion under ER 611 in asking the juror question, we disagree with
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Appleton on this point. 7
Washington law affords trial courts flexibility in asking juror questions. CR
43(k) requires that a trial court allow jurors to submit to the court written
questions directed to witnesses, and ER 611(a) instructs courts to “exercise
reasonable control over the mode and order of interrogating witnesses and
presenting evidence.” While ER 611(b) states that cross examination “should” be
limited to the subject matter of the direct examination, the rule also states that the
court “may, in the exercise of discretion, permit inquiry into additional matters as
if on direct examination.” Our court reviews ER 611 rulings for “manifest abuse of
discretion.” State v. Hakimi, 124 Wn. App. 15, 19, 98 P.3d 809 (2004).
The trial court did not abuse its discretion by asking the juror questions at
issue. By the time the jury proposed these questions, it had already heard Dr.
Garcia’s testimony that Kumar might need surgery that could preclude natural
childbirth as well as Kumar’s testimony that she and Dr. Garcia “talked about
surgery, but that’s very scary for me because . . . it might have . . . side effects.”
The juror’s questions followed up on this issue by asking whether Kumar’s pain
affected her desire and ability to have children. Even assuming the court’s
reading of the jury questions constituted cross examination and was thereby
governed by ER 611, the court was still permitted to inquire into the matter as if
on direct examination. See ER 611(b). Therefore, the trial court did not abuse its
discretion in asking these juror questions.
E. Improper statements during Kumar’s closing argument
7 Appleton also argues on appeal that this question violated ER 403, but this argument is waived
because he did not object on ER 403 grounds at trial. See State v. Guloy, 104 Wn.2d 412, 422,
705 P.2d 1182 (1985).
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Appleton claims the trial court erroneously denied his motion for a new
trial because Kumar’s counsel made three statements during closing argument
that deprived him of a fair trial. 8 We review the denial of a motion for new trial
based on alleged attorney misconduct for abuse of discretion and only reverse if
“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. See Gilmore v. Jefferson
County. Pub. Transp. Benefit Area, 190 Wn.2d 483, 502, 415 P.3d 212 (2018)
(quoting Alum. Co. of Am. v. Aetna Cas. & Sur. Co., 140 Wn.2d 517, 537, 998
P.2d 856 (2000)). Because none of Kumar’s counsel’s statements was both
improper and prejudicial, we reject Appleton’s argument.
First, Appleton argues that Kumar’s counsel improperly “referred to his
own personal situation of pain” when he said “I’ve been in pain.” Appleton fails to
provide legal authority or argument explaining why this remark was improper or
prejudicial. See State v. Loos, 14 Wn. App. 2d 748, 758, 473 P.3d 1229 (2020)
(“When a party provides no citation to support an argument, this court will
assume that counsel, after diligent search, has found none.”). Even assuming the
8 Appleton assigns error to the trial court’s denial of his motion for a new trial and entry of
judgments on the jury’s verdict. But Appleton’s issue statement on these assigned errors asserts
that the trial court “deprived [Appleton] of a fair trial by the multiple errors at the trial,” without
specifying what these trial errors were. Appleton’s motion for a new trial raised many of the same
arguments discussed in the text above. Appleton’s motion also raised several other issues that he
has either declined to raise on appeal or failed to support in his appellate briefs with substantive
argument and citations to relevant legal authority. These arguments include (a) the trial court’s
exclusion of two additional defense expert witnesses, (b) unspecified “other questions objected to
during [Kumar’s] jury selection” that tainted the jury pool, (c) Dr. Garcia’s reference during his trial
testimony to an excluded defense expert witness, (d) Kumar’s “last minute switch in her case
strategy” in which she dismissed her economic damages claim before opening statements, and
(e) the inconsistency of the jury’s award of substantial past noneconomic damages in light of the
evidence and Kumar’s theory of the case. Because Appleton fails to properly present or argue
these issues, we decline to consider them. See Christian, 191 Wn. App. at 728.
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remark was improper, the trial court sustained Appleton’s objection and
instructed the jury to disregard the remark, and the jury is presumed to have
followed this instruction. See Diaz v. State, 175 Wn.2d 457, 474, 285 P.3d 873(2012).
Second, Appleton argues that Kumar’s counsel improperly “pointed to the
lack of evidence in [Appleton’s] case” by asking, “Why ask hardly any questions
of [Kumar]? Why put on no case[?]” The trial court overruled Appleton’s objection
to these remarks as improper burden shifting. Again, Appleton fails to provide
legal authority or argument explaining why these remarks were improper and
prejudicial. See Loos, 14 Wn. App. 2d at 758. Regardless, the remark was not
improper because attorneys have “wide latitude to make reasonable inferences
from the evidence during closing argument.” Hamblin v. Castillo Garcia, 23 Wn.
App. 2d 814, 839-40, 517 P.3d 1080 (2022). Given this wide latitude, Kumar
could properly suggest to the jury in closing argument that any further cross
examination of Kumar or additional evidence produced by Appleton would have
been unfavorable. See Krieger v. McLaughlin, 50 Wn.2d 461, 464, 313 P.2d 361(1957).
Third, Appleton argues that Kumar’s counsel made comments during
closing argument that violated the general principle prohibiting counsel from
appealing to the jurors to “place themselves in the position of a litigant and to
decide the case based upon what they would then want under the
circumstances.” Adkins v. Alum. Co. of Am., 110 Wn.2d 128, 140, 750 P.2d 1257(1988). Because Appleton did not timely object to the purportedly improper
statements at issue, he has waived this argument on appeal. A.C. v. Bellingham
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Sch. Dist., 125 Wn. App. 511, 524, 105 P.3d 400 (2004). Therefore, we conclude
that the trial court did not abuse its discretion in denying Appleton’s motion for
new trial.
III
The trial court correctly granted Kumar’s motion for partial summary
judgment and Kumar’s motions in limine to exclude Drs. Harris and Shibata.
None of Appleton’s other alleged errors warrant reversal. Therefore, we affirm
the trial court in all respects.
WE CONCUR:
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