Ella Elias, Steve Strand And Dave Proudfoot v. City Of Seattle

FILET
COURT OF APPEALS 1:HV I • • :-
STATE OF WASHINGTON -
NIB FEB 20 VI 8:29
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
ELLA ELIAS, individually, and )
DAVID PROUDFOOT, individually, ) No. 75848-9-1
)
Respondents, ) DIVISION ONE
)
STEVE STRAND, individually, )
) UNPUBLISHED OPINION
Plaintiff, )
)
v. )
)
CITY OF SEATTLE, a political )
subdivision of Washington State, )
) FILED: February 20, 2018
Appellant. )
)
LEACH, J. — The city of Seattle (City) appeals the trial court's denial of its
motion for a remittitur or, alternatively, a new trial. Three police officers sued the
City. A jury awarded substantial damages to two officers but rejected the third
officer's claim. The City fails to show that the damages awards are not
supported by substantial evidence, shock the conscience, or were the result of
passion or prejudice. It also does not show that any alleged misconduct or error
during trial prejudiced the City. We affirm.
FACTS
On June 23, 2014, Kathleen O'Toole became chief of the Seattle Police
Department (SPD). She promoted then-Lieutenant Dave Proudfoot to captain
No. 75848-9-1 / 2
and assigned him to lead the South Precinct. On July 21, Sergeant Ella Elias
filed a notice of a claim stating that she intended to sue the City. This notice
described hostile work environment, gender discrimination, and retaliation
claims.1
On September 15, O'Toole issued an investigatory transfer order that
temporarily reassigned Elias from the South Precinct to the West Precinct.
O'Toole ordered the transfer to facilitate the SPD's investigation of pending EEO
complaints against Elias and Elias's claim against the City.
When Captain Proudfoot received the order, he e-mailed four members of
the command staff, including O'Toole, to voice his opposition to the transfer. He
stated, "[M]oving her [could] be seen as retaliation for filing an EEO-based
lawsuit." The SPD permanently transferred Elias to the West Precinct on
December 3, 2014. In April 2015, O'Toole transferred Proudfoot to lead the
SPD's training unit where he had served before she promoted him to captain of
the South Precinct.
Elias filed this lawsuit in November 2014. She asserted the claims
described in her notice. An amended complaint filed in February 2016 added
1 Elias based her claims on the hostility she experienced after informing
her lieutenant and captain in 2011 that four African American officers from the
South Precinct were "hand picked" for a nightclub emphasis overtime
assignment. She claimed the program was not open to all patrol officers as it
should have been. The alleged hostile acts toward Elias included select officers
filing equal employment opportunity (EEO) complaints against her, claiming that
she created a hostile work environment for African American patrol officers.
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No. 75848-9-1 / 3
Proudfoot and another officer, Steve Strand, as plaintiffs. They each asserted
retaliation claims.
On the first day of trial, Elias voluntarily dismissed her hostile work
environment and gender discrimination claims. She proceeded only with her
claim that the SPD transferred her in retaliation for filing her tort claim. Proudfoot
and Strand proceeded with their claims that the SPD retaliated against them for
opposing Elias's transfer.
The jury found that the SPD had retaliated against Elias and Proudfoot but
rejected Strand's claim. The jury awarded Elias $400,000 in economic damages
and $1.5 million in noneconomic damages. It awarded Proudfoot $182,000 in
economic damages and $750,000 in noneconomic damages. While the
damages awards totaled $2,832,000, the officers' counsel had asked the jury to
award more in closing argument. The City asked the trial judge to reduce the
damages awards or, alternatively, for a new trial. The trial court denied the City's
request. The City appeals this decision.
ANALYSIS
Remittitur and New Trial
We review the trial court's denial of a remittitur for abuse of discretion.2
We will not reduce the jury's damages award unless it is not supported by
2 Bunch v. King County Dep't of Youth Servs., 155 Wash. 2d 165, 172-73,
116 P.3d 381 (2005).
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substantial evidence in the record, shocks the conscience of the court, or is the
result of passion or prejudice.3 We do not review the jury's decisions about
witness credibility or the weight to be given evidence.4 "We strongly presume the
jury's verdict is correct."5 "A trial court's denial of a remittitur strengthens the
verdict."6
We review the denial of a motion for a new trial for abuse of discretion.7
"A court abuses its discretion when its decision adopts a view that no reasonable
person would take or that is based on untenable grounds or reasons."5 "We
review a trial court's denial of a new trial more critically than . . . its grant of a new
trial because a new trial places the parties where they were before, but a
decision denying a new trial concludes their rights."9
A. Substantial Evidence
The City challenges only the sufficiency of the evidence to support the
jury's monetary awards, not its liability decisions. A damages award must be
supported by substantial evidence and is not when the record contains
3Bunch, 155 Wash. 2d at 179.
4 Statev. Smith, 31 Wash. App. 226, 228, 640 P.2d 25 (1982).
5 Bunch, 155 Wash. 2d at 179.
6 Bunch, 155 Wash. 2d at 180.
7 State v. Boyle, 183 Wash. App. 1, 12, 335 P.3d 954 (2014).
8 Boyle, 183 Wash. App. at 12-13.
9 M.R.B. v. Puyallup Sch. Dist., 169 Wash. App. 837, 848, 282 P.3d 1124
(2012).
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No. 75848-9-1 / 5
insufficient evidence to convince "an unprejudiced, thinking mind.'"10 Generally,
a party may raise on appeal only those issues raised at the trial court." But RAP
2.5(a)(2) permits a party to challenge the sufficiency of the evidence for the first
time on appea1.12
1. Economic Damages Awards
First, the City claims to challenge the sufficiency of the evidence
supporting the jury's economic damages awards. The City contends that the
officers' expert economist, Dr. Christina Tapia, improperly calculated the amount
of Elias's past lost overtime because she relied in part on overtime wages that
Elias lost before her transfer. The City asserts that this overtime was irrelevant in
evaluating the lost overtime opportunities caused by her transfer. But the City's
claim does not challenge the sufficiency of Tapia's admitted testimony to support
the jury's award.
Instead, for the first time on appeal, the City claims that the trial court
should not have allowed the jury to consider Tapia's testimony. Thus, the City
really challenges the admission of evidence that it now claims is irrelevant.
Failure to object at trial to the admissibility of evidence based on relevance
10 Bunch, 155 Wash. 2d at 179 (internal quotation marks omitted) (quoting
Indus. Indem. Co. v. Kalleviq, 114 Wash. 2d 907, 916, 792 P.2d 520 (1990)).
11 In re Det. of Brown, 154 Wash. App. 116, 121, 225 P.3d 1028(2010).
12 RAP 2.5(a)(2) allows a party to raise for the first time on appeal the
claimed error of "failure to establish facts upon which relief can be granted."
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No. 75848-9-1 /6
precludes appellate review of that issue.13 The City did not ask the trial court to
exclude Tapia's testimony before trial, did not object to Tapia's testimony, and
did not ask the court to strike her testimony. Judge William Downing, a well-
regarded trial judge with 28 years of superior court judicial experience, aptly
observed in his order denying the City's request for a remittitur or new trial that
"the defense case was marred by misdirection and missed opportunity." This
may have been one of those missed opportunities.
The City also claims that the record does not show Elias lost past or future
income as a result of the transfer. It asserts that Elias's "base pay" remained the
same, and no evidence indicated that she worked more overtime in any earlier
year or that it would be possible for her to work more overtime in the future. Elias
testified that she was on track to make more money than she had made
previously at the SPD.14
Tapia, however, testified that she based her past and future lost overtime
calculations for Elias on her understanding of the amount of additional overtime
Elias lost access to because of the transfer. Tapia stated that in making these
calculations, she relied on the documents and data she reviewed and her
13 Statev. Florczak, 76 Wash. App. 55, 72, 882 P.2d 199 (1994).
14 The City asked Elias if she was "on track to make $178,326 this year,"
and she answered,"Yes." The City then asked, "That's more money than you've
ever made since you've been with the Seattle Police Department; right?" Elias
answered, "I might have made more in 2013 and 2014 if my overtime hadn't
been cut."
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No. 75848-9-1 /7
discussions with Elias. She assumed Elias would retire at age 5615 and
concluded that the transfer caused Elias to lose $731,008 in past and future
overtime earnings and future retirement benefits. The City did not present any
controverting expert testimony.
The jury awarded Elias $400,000 in economic damages. Thus, even
without any guidance from the City, the jury awarded Elias an amount less than
Tapia's conclusion. The jury's award was in the range of substantial evidence.
The trial court did not abuse its discretion by refusing to remit Elias's economic
damages award.
We hold similarly for Proudfoot. In April 2015, the SPD demoted
Proudfoot from captain to leader of its training unit. This caused him to lose the 5
percent salary premium paid to captains. The City calculated that the 5 percent
premium was worth $10,700 for the 16 months that Proudfoot had been at the
training unit after the transfer. The City contends that this amount reflects
Proudfoot's total past economic loss, well below the jury's $40,000 award for past
economic damages.
Tapia testified, however, that Proudfoot's involuntary transfer resulted in
past economic damages of $40,115. Tapia included in her calculations the
additional amount Proudfoot would have earned had he become assistant chief
15 Elias testified that she plans to retire at age 56 because she has an
autoimmune disease that could prevent her from working.
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No. 75848-9-1 / 8
in April 2015. Although Proudfoot did not apply for an assistant chief position,
Tapia testified that she concluded he would have attained the position based on
her conversations with Proudfoot and her understanding that he had several
conversations with Chief O'Toole about the position. Tapia testified that the
City's retaliation caused Proudfoot to lose $467,390 in past and future overtime
earnings and future retirement benefits if he retired at age 60 or $546,763 if he
retired at age 65. Again, the City did not call its own expert and did not provide
the jury with its view of an appropriate damage award. The jury awarded him
$182,000 in economic damages, an award well below the range of Tapia's
testimony. Substantial evidence therefore supports the award. The trial court did
not abuse its discretion in failing to reduce Proudfoot's economic damages
award.
2. Noneconomic Damages Awards
The City also challenges the sufficiency of the evidence supporting the
jury's noneconomic damages awards to the officers. The jury awarded $1.5
million in noneconomic damages to Elias and $750,000 in noneconomic
damages to Proudfoot. The City contends that these awards are excessive
because both Elias and Proudfoot provided very limited supporting evidence.
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No. 75848-9-1 / 9
But in Bunch v. King County Department of Youth Services,16 our
Supreme Court stated, "'The plaintiff, once having proved discrimination, is only
required to offer proof of actual anguish or emotional distress in order to have
those damages included in recoverable costs pursuant to RCW 49.60." "The
distress need not be severe."17 "The jury's role in determining noneconomic
damages is perhaps even more essential [than its role in determining economic
damages]."18 In Bunch, the Supreme Court reversed this court's remittitur and
held that the jury could infer emotional distress from "limited" evidence.19 Bunch
testified that the racially motivated employment discrimination he experienced
overwhelmed him.2° He stated that the discrimination made him depressed and
angry and required that he explain to his family why the King County Department
of Youth Services fired him.21 He testified that after the department fired him, he
worked for significantly less pay with minimal benefits. 22
Here, the officers provided more substantial evidence of emotional
distress than that in Bunch. Elias identified as causes of her emotional distress
the loss of overtime and employment opportunities plus exposure to rumors
16155 Wash. 2d 165, 180, 116 P.3d 381 (2005) (quoting Dean v. Mun. of
Metro. Seattle, 104 Wash. 2d 627, 641, 708 P.2d 393(1985)).
17 Bunch, 155 Wash. 2d at 180.
18 Bunch, 155 Wash. 2d at 179-80 (quoting Sofie v. Fibreboard Corp., 112
Wash. 2d 636, 646, 771 P.2d 711, 780 P.2d 260(1989)).
19 Bunch, 155 Wash. 2d at 167, 180.
20 Bunch, 155 Wash. 2d at 180.
21 Bunch, 155 Wash. 2d at 180.
22 Bunch, 155 Wash. 2d at 180.
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No. 75848-9-1 / 10
about why the SPD transferred her. She also testified that the SPD transferred
her to the West Precinct when no work assignment existed there for her. The
captain of the West Precinct told her, "I don't know why they sent you here."
The SPD kept her in a "no assignments" position for five months. And she
worked double shifts to make up for lost income. This resulted in her not seeing
her son and feeling "tired, crabby." She described the ramifications of her
transfer as "hard to take." Consistent with Bunch, Elias's testimony provides
sufficient support for the jury's $1.5 million noneconomic damages award.
Similarly, Proudfoot explained that his work at the SPD provided more
than a job to him: it was a "calling." He testified that it was emotionally "gut-
wrenching" to leave his work at the South Precinct and his coworkers whom he
considers family. In accordance with Bunch, Proudfoot's testimony provides
sufficient support for the jury's $750,000 verdict. The trial court did not abuse its
discretion in failing to remit the jury's noneconomic damages awards for lack of
substantial evidence.
B. Shocks the Conscience of the Court
Next, the City asserts that the jury's noneconomic damages awards
should shock the conscience of the court. They do not.
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No. 75848-9-1/ 11
A damages award shocks a court's conscience when it is "'flagrantly
outrageous and extravagant.'"23 The City concedes that Washington law
generally does not "assess the amount of a verdict based upon comparisons with
verdicts in other cases."24 Instead, the City contrasts what it characterizes as the
"sparse evidence" of emotional harm in this case with the evidence of emotional
distress in another case involving the Washington Law Against Discrimination
(WLAD),25 Collins v. Clark County Fire District No. 5.26
In Collins, the jury awarded $875,000 in noneconomic damages to former
employee of Clark County Fire District No. 5 Valerie Larwick, who experienced
sexual harassment in the workplace.27 The City notes that Clark County fired
Larwick after she experienced over two years of sexually harassing comments
and sexist treatment.28 In addition, Larwick sought treatment for related
emotional distress, including recurring nightmares, insomnia, and serious
depression.26
23 Bunch, 155 Wash. 2d at 179 (quoting Binqaman v. Grays Harbor Cmtv.
Hosp., 103 Wash. 2d 831, 836-37, 699 P.2d 1230 (1985)).
24 Washburn v. Beatt Equip. Co., 120 Wash. 2d 246, 268, 840 P.2d 860
(1992); Bertero v. Nat'l Gen. Corp., 13 Ca1.3d 43, 65 n.12, 529 P.2d 608, 118
Cal. Rptr. 184 (1974)("The vast variety of and disparity between awards in other
Cases demonstrates that injuries can seldom be measured on the same scale.").
25 Ch. 49.60 RCW.
28 155 Wash. App. 48, 231 P.3d 1211 (2010).
27 Collins, 155 Wash. App. at 73.
28 Collins, 155 Wash. App. at 57-60.
29 Collins, 155 Wash. App. at 86, 90-93.
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No. 75848-9-1/ 12
The City contends that unlike this case, Collins illustrates circumstances in
which it is apparent how the jury reached its "sizeable" noneconomic damages
award. Here, the SPD only transferred the officers as opposed to firing them.'
Also, the officers did not seek treatment for their emotional distress or claim
serious symptoms of distress. But emotional distress damages "need not be
proved with mathematical certainty, [and need only] be supported by competent
evidence."30 The absence of more evidence in this case is not a lack of sufficient
competent evidence, particularly when "[t]he distress need not be severe."31 As
discussed above, both Elias's and Proudfoot's testimony reflect actual anguish or
emotional distress, which means the verdict is not "flagrantly outrageous." The
trial court did not abuse its discretion in denying the City's request for a remittitur
based on a shocks-the-conscience standard.
C. Passion or Prejudice
The City identifies seven sources of alleged prejudice to support its
request for a remittitur or, alternatively, a new trial. We will reduce the jury's
damages awards only if the passion or prejudice is "unmistakable."32 An error
prejudices a party when it affects or presumably affects the outcome of tria1.33
30 Hill v. GTE Directories Sales Corp., 71 Wash. App. 132, 140, 856 P.2d
746 (1993).
31 Bunch, 155 Wash. 2d at 180.
32 Bunch, 155 Wash. 2d at 179 (quoting Binqaman, 103 Wash. 2d at 836); see
also RCW 4.76.030.
33 Herring v. Dep't of Soc. & Health Servs., 81 Wash. App. 1, 23, 914 P.2d
67(1996).
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No. 75848-9-1 /13
The City claims these sources of prejudice: the size of the damages awards
alone; the officers' counsel's alleged suggestion in closing that the jury should
base its damages awards on verdicts in similar cases; the officers' counsel's
alleged misconduct during opening statements when counsel made unsupported,
irrelevant statements about O'Toole; the officers' counsel's claimed violation of
the court's order in limine excluding reference to related media coverage; the
court's erroneous admission of expert testimony on police practices and that
expert's improper testimony about whether the SPD retaliated; the court's failure
to submit the City's proposed mitigation instruction; and the cumulative effect of
these errors. We reject the City's claims of prejudice and hold that the trial court
did not act unreasonably in its decision to deny the City's motion for a remittitur
or, alternatively, a new trial.
1. The Size of the Awards
First, the City asserts that the size of the damages awards alone shows
that the jury acted out of passion or prejudice, a claim replete with irony. The
following table summarizes the expert testimony and closing argument about
damages provided to the jury.
Elias Proudfoot Strand
Officers' expert $731,008 $467,390- $546,763 $714,335 -$812,682
testimony about
economic damages
City's expert None None None
testimony about
economic damages
Officers' closing $731,008 $467,390 - $546,763 $714,335 - $812,682
recommendation:
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No. 75848-9-1/ 14
economic damages
Officers' closing $1 million - $3 million $1 million - $3 million $1 million - $3 million
recommendation:
total damages
City's closing No recommendation No recommendation No recommendation
recommendation:
economic damages
City's closing No recommendation No recommendation No recommendation
recommendation:
total damages
Economic damages $400,000 $182,000 $0.00
awarded
Noneconomic $1.5 million $750,000 $0.00
damages received
Total damages $1.9 million $932,000 $0.00
received
The jury awarded Elias about 55 percent of the economic damages
calculated by her expert and total damages in the middle of the range suggested
by her counsel as reasonable. The jury awarded Proudfoot about 39 percent of
the low end of the economic damages calculated by his expert and total
damages less than the minimum suggested by his counsel as reasonable. The
City did not provide the jury with any expert testimony or closing argument to
guide the jury's damage decision. As Judge Downing observed, the officers'
damages evidence and closing argument recommendations were "not
challenged or contradicted by the defense and the jury ultimately settled on
amounts toward the lower end of what they may then have seen as an agreed
range."
The City cannot credibly, claim the size of the verdict shows passion or
prejudice when it failed to provide the jury with any evidence or argument to
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No. 75848-9-1/ 15
guide the jury's damage decisions. And the fact that the jury rejected Strand's
claim and did not award the other officers the full amount requested further
suggests that it acted not out of passion, but deliberately.
In addition, damages awards within the range of substantial evidence are
not the reeult of passion or prejudice as a matter of law.34 The trial court
therefore did not abuse its discretion in denying a remittitur or a new trial based
on the amount of the awards alone.
2. Counsel's Alleged Misconduct in Closing Argument
Again for the first time on appeal, the City claims that the officers'
counsel's misconduct in closing argument prejudiced it. Because the City did not
object below, it may not raise this issue on appeal unless it proves that the
alleged misconduct was '"so flagrant that no instruction could have cured the
prejudicial effect."35 Conduct is flagrant when a party engages in repetitive
prejudicial conduct that is ill intentioned; generally, flagrant misconduct means
pervasive misconduct.36 In State v. Walker,37 for example, Division Two held that
34 See Brundridge v. Fluor Fed. Servs, Inc., 164 Wash. 2d 432, 453-58, 191
P.3d 879 (2008) (denying Fluor's CR 59 motion for a new trial or amended
judgment and holding that the awards in question were supported by the
evidence and therefore not the result of passion or prejudice as a matter of law).
35 M.R.B., 169 Wash. App. at 857-58 (internal quotation marks omitted)
(quoting Collins, 155 Wash. App. at 94).
36 See, e.g., State v. Walker, 164 Wash. App. 724, 737, 265 P.3d 191 (2011)
(holding prosecutor's repetitive prejudicial misconduct warranted reversal); Teter
v. Deck, 174 Wash. 2d 207, 223-25, 274 P.3d 336 (2012) (affirming trial court's
grant of a new trial based on the officers' counsel's repeated misconduct).
37 164 Wash. App. 724, 738, 265 P.3d 191 (2011).
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No. 75848-9-1/ 16
the cumulative effect of the prosecutor's repetitive prejudicial misconduct
warranted reversal because "the prosecutor made the improper comments not
just once or twice, but frequently." In addition, the "case was largely a credibility
contest, in which the prosecutor's improper arguments could easily serve as the
deciding factor."38
The City asserts that the officers' counsel engaged in prejudicial
misconduct during closing argument by suggesting that the jury decide the case
based on a "typical" award in similar cases. The City mischaracterizes counsel's
statements. The officers' counsel stated, "[A]jury verdict award in cases like this,
for a proper reasonable one, again your decision, would be in the range of one to
three million for each [plaintiff]." She then told the jury, "And I give you a range
for a reason. Even though anywhere in that range would be consistent with what
we have heard in this case, I submit to you. It's your decision. You get to figure
it out."
Counsel may suggest a range of damages to a jury, but "[lit is improper for
counsel to invite the jury to decide a case based on anything other than the
evidence and the law, including appeals to sympathy, prejudice, and bias."39 At
trial, however, the officers' counsel stated only that a "reasonable" award in
"cases like this" would be within a certain range. "Typical" and "reasonable" are
88 Walker, 164 Wash. App. at 738:
M.R.B., 169 Wash. App. at 858.
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No. 75848-9-1 /17
distinct. "Typical" would improperly suggest that the jury should base its awards
on what are usual damages awards in similar cases. "Reasonable," however, is
a subjective determination that does not suggest the jury should necessarily
return an award that is influenced by any other; a reasonable award may not be
the typical award in similar cases. Because the City has not shown that
counsel's statement constitutes misconduct, we decline to review the issue.
3. Counsel's Alleged Misconduct during Opening Statements
Next, the City claims that the officers' counsel committed prejudicial
misconduct during his opening statement when he personally attacked O'Toole
with unsupported, irrelevant statements. "Testimony may be anticipated [in
opening] so long as counsel has a good faith belief such testimony will be
produced at trial."40 The City again concedes, however, that at trial it failed to
object based on misconduct. As discussed above, the City's failure to object
means it may not raise the issue on review unless the statements were so
flagrant that an instruction could not have cured the prejudice.41 The City asserts
that neither party presented evidence at trial to support any one of the following
five statements the officers' counsel made during his opening statement. It
claims that no curative instruction could have prevented the prejudice resulting
from this "smear" campaign.
40 State v. Campbell, 103 Wash. 2d 1, 16, 691 P.2d 929 (1984).
41 See M.R.B., 169 Wash. App. at 857-58.
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No. 75848-9-1 /18
(1) The officers' counsel showed a photo of O'Toole standing behind
Michele Obama and said, "[W]hat we have found is the evidence in this case
suggests that Chief O'Toole is not so much invested in Seattle as she is
invested .. .with Seattle potentially as being a stepping stone."
(2)"What you are going to hear is that even back in Boston, Chief O'Toole
was known for catering to the people that can get her her next job more than
catering to the front line officers that she's designed to support."
(3) "What you are going to hear is that in Boston, Chief O'Toole was
actually found, by virtue of a no confidence vote by an oversight committee, to be
unable to effectively manage... a diverse work force back in Boston."
(4) Although Seattle City Council "allocated ... $40,000 for her move
when her husband still lives on the east coast.... It turns out that[she] still rents
an apartment. And 1 think the evidence is going to show 1 think she even rents
her furniture."
(5) Chief O'Toole was "going out and speaking in these different
environments, spending a lot of time on the east coast," and the jury should
therefore consider whether she was making decisions about the South Precinct
in a "misguided effort to serve [her]self."
The City contends that the officers' counsel improperly made these
prejudicial statements to persuade the jury that O'Toole was making short-term
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No. 75848-9-1 /19
decisions to satisfy the Department of Justice at the expense of the long-term
welfare of the SPD. Although the officers do not contest the City's assertion that
they presented no evidence at trial to support these statements, they assert that
the statements were not ill intentioned. They contend that their counsel had a
good-faith basis to inquire about O'Toole's work history and motivations because
they were relevant in a retaliation action.
We conclude that the challenged conduct was not sufficiently pervasive to
be prejudicial. Thus, we do not need to decide whether counsel made those
statements in good faith. The parties either did not repeat the challenged
statements in front of the jury or witness testimony rebutted the claims. Before
O'Toole's testimony and outside the presence of the jury, the trial court ordered
the officers' counsel not to question O'Toole about the substance of statement
(3) unless O'Toole first raised the issue when discussing her background.
Neither party raised the issue again. The jury therefore heard about the "no
confidence vote" only the one time during the officers' counsel's opening
statement.
In addition, O'Toole testified that contrary to statement (4), her husband
lives in Seattle and she does not rent her furniture. Although the City claims that
it had "no effective means of rebutting the false insinuation [embodied in the
remaining three statements] that [O'Toole] saw Seattle as a stepping stone,"
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O'Toole rebutted the contention through her testimony. She stated, "At this point
in my career, this is not a stepping stone... . As far as I'm concerned, this is it."
We distinguish this case from Walker. In Walker, the prosecutor made
improper comments "not just once or twice, but frequently."42 That did not
happen here. For each challenged statement, either counsel did not repeat it or
O'Toole's testimony negated it. Because the City has not shown that the alleged
misconduct was flagrant, it did not preserve the issue.
4. Counsel's Violation of the Court's Order in Limine
The City also asserts that the officers' counsel committed prejudicial
misconduct by violating an order in limine excluding any reference to "evidence
regarding media/news coverage of the lawsuit." Here, the City objected to each
of the three instances in which the officers' counsel referenced related media
coverage at trial. "[A] court properly grants a new trial where (1) the conduct
complained of is misconduct, (2) the misconduct is prejudicial, (3) the moving
party objected to the misconduct at trial, and (4)the misconduct was not cured by
the court's instructions."43
In violation of the court's original order in limine, the officers' counsel
questioned both O'Toole and Elias about newspaper articles related to the case
and mentioned the articles in closing. But a court may revise its order or ruling at
42 Walker, 164 Wash. App. at 738.
43 Teter, 174 Wash. 2d at 226.
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No. 75848-9-1 /21
any time before final judgment." The court's conduct at trial implies that it
revised its order in limine to allow reference to media coverage to establish the
timing of events and whether the SPD retaliated. Based on the court's conduct
described below, the officers' counsel did not violate the court's modified order in
limine.
The officers' counsel first referenced related newspaper articles when
questioning O'Toole. O'Toole stated that she routinely Googled her name and
the SPD in the morning to apprise herself of any issues. The officers' counsel
then asked, "Do you think if there were multiple newspaper articles in the news
about and alleging Chief Metz running a gravy train in• relation to the Robert
squad in the South Precinct, that's something you probably would have read?"
When O'Toole said that she recalled the headline, the officers' counsel asked if
she was referring to articles "from November 2014, the gravy train articles?" The
City objected. The trial court did not rule on the objection but instead asked
O'Toole if she "arrived [at the SPD] in the summer of '14?" and if she "became
familiar with the issue we're talking about" at that point. O'Toole answered that
she remembered seeing a headline and scanning an article. Here, the court
suggested that it was permissible to use media coverage to establish a timeline
of events.
44 State v. Kinard, 39 Wash. App. 871, 873,696 P.2d 603(1985).
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The officers' counsel again referenced the "gravy train" articles when
questioning Elias. Elias testified that she could not remember the exact date on
which she filed her lawsuit and needed "something to refresh [her memory]." The
officers' counsel then asked if a document it had provided her "helped assist [her]
in remembering when an article appeared in the Seattle Times indicating—." The
City objected. The trial court again did not rule on the objection but suggested
that the officers' counsel ask the date Elias filed the lawsuit and if and when a
story appeared in the press about the filing of that lawsuit. Counsel then asked,
"Do you recall the date that there was an article in the Seattle Times about the
filing of the lawsuit?" Elias answered,"December 2, 2014." Again, the trial court
indicated that counsel could use media coverage to establish a timeline.
The officers' counsel mentioned the "gravy train" articles for a third time in
closing to reference the date that Elias filed her lawsuit and to emphasize that
O'Toole permanently transferred Elias one day after the press published the
articles. The court overruled the City's objections by stating, "[W]e have
discussed it and established the context is proper context because the jury will
consider whether [the articles] did or did not relate to the decision making at
issue." The court again effectively revised its order in limine to allow counsel to
reference the fact of news coverage as it related to a retaliatory motive. Because
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the officers' counsel's questioning comported with the court's revised order in
limine, counsel's statements did not constitute misconduct.
5. Erroneous Admission of Expert Testimony
The City next contends that the trial court abused its discretion when it
permitted former Bellevue Chief of Police D.P. Van Blaricom to testify as an
expert and offer a legal conclusion. In its order in limine, the trial court permitted
expert witness Van Blaricom to testify only about "matters of police administration
such as 'chain of command' and the role of 'officer morale' and related problems
of 'preferential assignments." The court prohibited Van Blaricom from
expressing "opinions on whether there was or was not 'discrimination,'
'retaliation,' an EEO violation' or a 'hostile work environment.' Nor [could] he
opine as to whether anything occurred 'because of' race or gender."
ER 702 allows expert testimony if the witness qualifies as an expert and
his opinions will assist the trier of fact.45 We review the court's admission of
expert testimony for abuse of discretion.46 We will not disturb the trial court's
ruling "[i]f the basis for admission of the evidence is 'fairly debatable.'"47
45 Queen City Farms, Inc. v. Cent. Nat'l Ins. Co. of Omaha, 126 Wash. 2d 50,
102, 882 P.2d 703(1994).
46 Weyerhaeuser Co. v. Commercial Union Ins. Co., 142 Wash. 2d 654, 683,
15 P.3d 115 (2000).
47 Johnston-Forbes v. Matsunaga, 181 Wash. 2d 346, 352, 333 P.3d 388
(2014) (internal quotation marks omitted) (quoting Grp. Health Coop. of Puget
Sound, Inc. v. Dep't of Revenue, 106 Wash. 2d 391, 398, 722 P.2d 787(1986)).
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First, the City claims that the trial court abused its discretion when it
allowed Van Blaricom to testify as an expert about the soundness of the SPD's
management decisions. Van Blaricom told the jury that he was an expert in
"[p]olice practices." He explained why he believed the officers' transfers were not
"quality management decisions." He also discussed how the SPD should have
addressed Elias's comment about her preference for supervising white males
under the age of 40. The City maintains that in permitting this "expert" opinion,
the court gave Van Blaricom license to "second-guess Chief O'Toole's personnel
decisions." , The City asserts that if this is proper expert opinion testimony, "any
plaintiff challenging a manager's decision in any employment case could simply
hire a manager who once served in a similar role to offer 'expert' testimony that
plaintiff's manager made the wrong decisions."
If relevant, however, expert testimony describing good and bad police
practices is admissible." Here, the officers claimed that the SPD transferred
them as a retaliatory measure. Van Blaricom was a police officer for the city of
Bellevue for 29 years and was chief of police for the last 11 of those years. His
testimony about the propriety of the SPD's management decisions based on his
experience , and knowledge of police practices was therefore relevant. In
48 See Davis v. Mason County, 927 F.2d 1473, 1484-85 (9th Cir. 1991)
(affirming the trial court's decision to admit D.P. Van Blaricom's testimony that
Sheriff Stairs was reckless in failing to adequately train his employees who were
found liable for damages for using excessive force).
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No. 75848-9-1 /25
addition, the jury is unlikely to be familiar with best practice for resolving conflict
within a police department. Van Blaricom's testimony therefore assisted the jury
in accordance with ER 702.
The City also asserts that Van Blaricom offered a legal conclusion and
thus violated the province of the jury. ER 704 prohibits experts from offering
legal conclusions, including opinion "testimony that the defendant's conduct
violated a particular law."49 "Such an improper opinion undermines a jury's
independent determination of the facts, and may invade the defendant's
constitutional right to a trial by jury."5° Van Blaricom testified that the SPD's
actions suggested that "there's some ulterior motive." The City contends that this
testimony violated the court's order in limine prohibiting him from opining on
whether the SPD "retaliated" and assumed the jury's role. A statement that the
SPD had an ulterior motive, however, is not equivalent to a statement that the
SPD retaliated. As the officers claim, Van Blaricom did not say what the ulterior
motive was or explicitly state any legal conclusions that the order in limine
prohibited. The trial court therefore did not abuse its discretion in allowing Van
Blaricom to testify as an expert or testify that he believed the SPD had an ulterior
motive.
49 Statev. Olmedo, 112 Wash. App. 525, 532, 49 P.3d 960 (2002).
50 Olmedo, 112 Wash. App. at 530-31.
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6. Mitigation Instruction
The City asserts that the trial court abused its discretion when it did not
provide the jury with the City's proposed mitigation instruction. It claims this
deprived the City of its failure-to-mitigate defense.
We review a trial court's jury instructions for abuse of discretion.51 "A trial
court does not abuse its discretion in instructing the jury, if the instructions: (1)
permit each party to argue its theory of the case;(2) are not misleading; and (3)
when read as a whole, properly inform the trier of fact of the applicable law."52
The court's failure to give a necessary instruction requires reversal only if it was
prejudicial.53
The :City's proposed mitigation instruction mirrored Washington pattern
jury instruction 330.83.54 The proposed instruction told the jury to reduce
damages if the City proved that either Elias or Proudfoot unreasonably failed to
reduce or avoid damages. The City claims that the court's failure to give this
instruction prevented it from arguing that Proudfoot failed to mitigate his
damages. Economist expert Tapia's damages calculation assumed that
Proudfoot would have become an assistant chief in April 2015. The City
51 Herring, 81 Wash. App. at 22.
52 Herring, 81 Wash. App. at 22-23.
53 Herring, 81 Wash. App. at 23.
54 6A WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS:
CIVIL 330.83, at 396(2012).
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contends that Proudfoot failed to mitigate his damages when he did not apply for
the position.
Judge Downing provided the following explanation for not giving the
mitigation instruction:
You know, the burden of proof remains upon the plaintiff to
establish damages, and so whether it's treated as a duty to mitigate
with the burden of proof allocated to the defense, it seems to me it's
simpler in a case of this nature, given the evidence that was
presented, to simply argue failures on the plaintiffs' part to meet the
burden, rather than asserting a mitigation.
As stated by Judge Downing, without a mitigation instruction, the City still
could argue that the jury should not award Proudfoot damages based on en
assistant chief's salary because he never applied for the position. The City
highlighted this issue during its cross-examination of both Tapia55 and O'Toole56
but failed to pursue it during its closing. A tactical decision by the City and not an
instructional error by the court caused this omission.
The City also may be asserting that it was unable to argue its theory of the
case for Elias. The City contends that Tapia overestimated Elias's damages
because Tapia did not consider any overtime Elias actually earned after the SPD
55 During its cross-examination of Tapia, the City underscored that she
based her damages calculations on the assumption that Proudfoot would have
obtained an assistant chief position. In addition, she stated that although she
was aware that Proudfoot had discussed the assistant chief position with
O'Toole, she did not know whether he had actually applied for it.
56 Chief O'Toole testified that to the best of her knowledge, Proudfoot did
not apply for an assistant chief position.
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No. 75848-9-1/ 28
transferred her. It claims that "Elias asked the jury to award her damages as if
she had failed to mitigate her damages." (Emphasis added.) If the court had
given its instruction, the City maintains that a jury "would have awarded [Elias], at
most, nominal past economic damages arising from overtime lost in the transition
to her new West Precinct position." But a mitigation instruction does not ask the
jury to reduce damages because a plaintiff appropriately mitigated them; it asks
the jury to reduce damages because a plaintiff unreasonably failed to do so. The
trial court's failure to give the City's mitigation instruction is therefore not relevant
to the City's theory of the case for Elias.
Because the City was able to argue that Proudfoot failed to mitigate his
damages, the trial court did not abuse its discretion in failing to submit the City's
proposed mitigation instruction.
7. Cumulative Errors
Finally, the City asserts that the alleged errors cumulatively require a new
trial. "The cumulative error doctrine applies 'when there have been several trial
errors that standing alone may not be sufficient to justify reversal but when
combined may deny a defendant a fair trial.'"57 When the errors have little or no
effect on the outcome at trial, no new trial is required.58 Because we did not
identify any, prejudicial misconduct or error, the cumulative error doctrine does
87In re Pers. Restraint of Morris, 176 Wash. 2d 157, 172, 288 P.3d 1140
(2012)(quoting State v. Greiff, 141 Wash. 2d 910, 929, 10 P.3d 390 (2000)).
58 Morris, 176 Wash. 2d at 172.
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not apply. The trial court did not abuse its discretion in not granting a remittitur or
a new trial based on grounds of prejudice.
Attorney Fees
The officers request an award of reasonable attorney fees on appeal.
They rely on RCW 49.60.030(2). This statute grants reasonable attorney fees,
both at the 'trial court and on appeal, to individuals who suffer violations of the
WLAD.59 Because the statute entitles the officers to reasonable attorney fees,
we award the officers attorney fees as the prevailing party on appeal.
CONCLUSION
We affirm. Substantial evidence supports the jury's economic and
noneconomic damages awards. The awards do not shock the conscience and
were not the result of passion or prejudice. The City fails to show that the trial
court abused its discretion when it denied both a remittitur and a new trial.
WE CONCUR:
RCW 49.60.210.
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