Tammy D. & Von Karthauser, V Mackenzie Adams

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
TAMMY D. KARTHAUSER and
VON KARTHAUSER, wife and husband, No. 71733-2-1
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MACKENZIE ADAMS, UNPUBLISHED OPINION
Appellant. FILED: June 23, 2014 o
Becker, J. —The amount of damages is a question of fact to be decided
by the jury. So long as the jury's award is within the range of substantial
evidence in the record, it will not be disturbed. Because there was substantial
evidence to support the award of $165,000 in this case, we affirm.
Tammy Karthauser sued Mackenzie Adams for personal injuries sustained
in a car accident on March 29, 2011. Karthauser claimed injuries to her neck,
right shoulder, and lower back and hip from the accident. By the time the case
went to trial, two issues remained: (1) whether Adams was negligent when she
hit Karthauser, and if so (2) the amount of damages. The Honorable Michael
Sullivan of Wahkiakum County presided over trial as a visiting judge.
No. 71733-2-1/2
At trial, Karthauser's witnesses were her treating physical therapist, five
family members, and the responding state trooper. The trooper testified that
when he asked Adams what happened, she reported having no memory of the
accident. He said she had no obvious signs of head injury and did not report
dizziness or loss of consciousness.
The physical therapist testified that Karthauser came in for 28 physical
therapy appointments with him and did 10 massage therapy sessions with
another member of his office. He testified that, assuming Karthauser continued
to have the same pain she had when therapy ended, he did not expect that she
would ever return to her preaccident status. But he did say that, should she win
a judgment in court, she would have the money to return to therapy and would
experience some temporary pain relief.
According to her family, Karthauser's life before the accident revolved
around hunting, camping, dressing big game, and cooking for large family
gatherings. They said she is now unable to participate in these activities to the
extent she used to because of pain from the accident. Both her sister and her
stepfather estimated that she is 25 percent of her preaccident self.
Karthauser testified last. She described the accident and said she had no
preexisting injuries. On direct examination, she testified that after the accident,
she had trouble providing care to the man the State paid her to take care of:
Q. . . . You know, at the time of the crash you were an in-house
care giver for the same guy; is that correct?
A. Yes.
Q. And the State was paying you, is that right?
A. Yes.
Q. Does the State continue to pay you now?
No. 71733-2-1/3
A. No.
Q. Well, why doesn't the State pay you if you're still sitting there
taking care of this guy?
A. I can't do everything I did before.
Q. Well, as an in-home care giver, aren't you expected to get this
300-pounder in and out of a bathtub?
A. I have to assist him.
Q. Okay. Before could you do that?
A. Yes.
Q. Can you do it now?
A. No.
Q. Your son, Vaughn, Jr., lives with you, he's 18, is that right?
A. Yes, he is.
Q. ... Is he a strapping strong young kid?
A. He's a big boy.
Q. Big boy? Without Vaughn, would you be able to assist this guy
in and out of the tub and clean up after him and do all the stuff
you have to do for a 70-something-year-old 300-pounder?
A. He's 71; no, I would not.
The court admitted a number of exhibits that Karthauser offered in support
of her claims. These included the 9-1-1 response reports from the fire
department, her medical and physical therapy bills, her physical therapy records
showing continuing pain in the low back and hip that was unresponsive to
treatment, a Kelley Blue Book printout for her totaled car, and the towing bills
from the night of the accident.
Adams was the only witness for the defense. She testified that at the time
of the accident she was four months pregnant and had been at her ex-boyfriend's
home to show him pictures of her ultrasound. She said she had gotten dizzy a
few times during her pregnancy. She said that all she remembered of the
accident was a large rock that sits to the side of the road approximately three car
lengths from the intersection. According to Adams, she blacked out suddenly
No. 71733-2-1/4
and does not remember anything until she was sitting in the back of "some guy's
car" calling her parents.
At the close of evidence, Adams orally moved for judgment as a matter of
law that Karthauser had no evidence supporting an instruction for future
economic damages:
MR. MITCHELL: And there's maybe a claim for future
medical bills, at least I'm not sure if there is. But I would move for
those claims being stricken or a directed verdict against them for
the reason there's no evidence of either that was raised. There
was some discussion by the physical therapist that Plaintiff might
benefit from some future treatment with him. He didn't talk about
how much, he didn't talk about what restrictions she has, if any, and
none of the medical records talk about her having restrictions or
work issues that relate to this accident.
For those reasons and because there was no claim for
diminished earning capacity in any of the interrogatories or
statement of damage before trial, that category should not be
allowed either. Neither one—there was no claim for any future
damages pertaining to impaired earning capacity or medical bills in
the future, so I would move that those—
THE COURT: So future medical bills, not future earnings?
MR. MITCHELL: Future earning capacity or diminished
earning capacity.
MR. CRANDALL: Yeah, diminution—
THE COURT: Well, I have that as the—
MR. MITCHELL: And also future medical bills. Same
argument on both, essentially.
Karthauser responded that there was sufficient evidence of future economic
damages to defeat Adams' motion:
MR. CRANDALL: Okay. My client took the stand and said
that she can no longer perform the duties that she was doing before
the crash. She said that was the reason in fact she no longer gets
a check from the State and she has been hired privately by this
elderly gentleman for whom she cares. She testified that currently
the heavy lifting is done by her 18-year-old son.
She also testified that he is not going to live with her forever
and she will be unable to take care of him, even at this reduced
income that she's getting now.
No. 71733-2-1/5
The physical therapist said that, more likely than not, she's
not going to improve. However, she might be able to improve
slightly with additional treatment, and he doesn't know for how long
she will improve.
The diminution of earning capacity is not a lost wage claim.
It is a claim that she can no longer earn the amount of money she
earned before, based on her physical disability stretching into the
future. Many people with a diminution of earning capacity continue
on with their regular job and still are entitled to a judgment in the
amount proven.
In this particular case she does continue on with her job, she
just does it at a reduced level. She has waived her lost wage claim.
That would be the difference between what the gentleman is paying
out of pocket as opposed to what the State is paying. There was
no rebutting evidence. There was no objection. That evidence is
before the jury and I'm entitled to the instruction.
The court denied the motion.
The jury was instructed as to both economic and noneconomic damages.
Instruction 10 said that if the verdict was for the plaintiff, it had to at least include
undisputed past economic damages of $12,617.23.
The jury was told to consider, as elements of future economic damages,
the reasonable value of earning capacity with reasonable probability to be lost in
the future, and future medical costs. The instruction on noneconomic damages
stated as follows:
In addition you should consider the following noneconomic
damages elements:
a) The nature and extent of the injuries;
b) The disability and loss of enjoyment of life experienced
and with reasonable probability to be experienced in the
future; and
c) The pain and suffering, both mental and physical,
experienced and with reasonable probability to be
experienced in the future.
The burden of proving damages rests upon the plaintiffs. It
is for you to determine, based upon the evidence, whether any
particular element has been proved by a preponderance of the
evidence.
No. 71733-2-1/6
Your award must be based upon evidence and not upon
speculation, guess, or conjecture.
The law has not furnished us with any fixed standards by
which to measure noneconomic damages. With reference to these
matters you must be governed by your own judgment, by the
evidence in the case and by these instructions.
Karthauser's attorney discussed damages during his closing argument.
He asked the jury to award all the past economic damages, including some
disputed items, for a total of "about 14 grand, give or take." Without suggesting a
particular amount, he asked the jury to also award to Karthauser the reasonable
value of earning capacity likely to be lost in the future. He asked for $6,000 for
future medical care:
Anyway, future medicals. If you're going to give her some
money—I wouldn't say give her some money because she has
earned the money you award—give her something—and I'm
suggesting looks like she spent about 6300 bucks at PT Northwest
between the massage and the physical therapist. Give her another
6,000, see what happens. If it works, then maybe she'll take
money from another award that you give her in another category
and plug it into that. Maybe a chiropractor, who knows?
He then read to them the portion of the instruction dealing with noneconomic
damages and walked them through various ways they could put a value on
noneconomic damages:
Couple little factors you might want to think about. First is, I
think as of this year Washington's minimum age is, like, $9.19 an
hour. Federal poverty level for one person is, like, 11,4a year—
11,400 a year. So, while the law has not given you a fixed standard
for determining pain, suffering, disability, loss of enjoyment of life
and all this other stuff, the law has certainly given you ways to
compute it.
But wait a minute, I'm not going to pull a fast one on you. I
know you all have phones with calculators on them, you're going to
have to figure it out. Ifwe use the job scenario, what would
happen—and I'm not suggesting this, I'm just showing you—it's like
a math class in elementary school, I'm walking you through a math
No. 71733-2-1/7
problem. Minimum wage is 9.19. No, no, no, don't pay her, she's
unskilled.
Oh, wait a minute, that's what it's for. Give her five bucks an
hour, 12-hour day, we'll do the nights for free because, you know,
she'll sleep some of that. Well, that works out to ... 21,672 a year
times 38.™
Whoa, whoa, that's a big chunk of money ... Man, maybe
we ought to use a different method. Maybe we ought to use a—
you can use that method, won't offend me, but what if we used the
chunk method? You pull a chunk out of the sky. Well, what if we
give Tammy 150,000 bucks for this lifetime?
Well, let's subtract 14,000 she's gotta pay for all those
outstanding medical bills. That leaves 136,000. And let's—I'm just
pulling this out of the sky. You know, she ran up a bill for about
6300 bucks, let's just round it to 6,000 where she can take a stab at
physical therapy again, maybe a chiropractor. So let's subtract that
and that leaves 130,000. Let's divide that by 38 years. Well, that
comes out to less than 3500 bucks a year, works out to less than
285 a month.
Now, that doesn't sound too outrageous. . . . You know, 285
a month when it's no skin off Ms. Adams' nose—maybe that's not
completely unfair.
He finished by appealing to the jurors as taxpayers:
Because if she doesn't get anything and she continues to
deteriorate, us taxpayers are going to be paying for her. Do you
want to pay for her?
Adams objected, and the objection was sustained.
Adams' attorney discussed damages in his closing as well. He told the
jury that not only was there no claim for lost income, "we don't even know what
her income is." He questioned the evidence of future economic damages,
emphasizing the dearth of medical testimony and the lack of evidence of pain
medication after treatment ended. He suggested that if the jury found for
Karthauser, they should award in the range of $5,000 to $10,000 in noneconomic
1The jury was instructed that a woman of Karthauser's age has a life expectancy
of approximately 38 years. Twenty-one thousand six hundred seventy-two dollars
($21,672) per year for 38 years works out to $823,536.
No. 71733-2-1/8
damages, "given the fact that she's able to continue working, doesn't use
medication and was able—and based on her testimony and her improvement
that's shown in the records. You may disagree with me, as the instructions tell
you. It's up to you to decide and there is no formula for it."
The jury returned a verdict for Karthauser. The verdict form was flawed,
although the attorneys and the judge did not realize it until after the verdict. The
verdict form had a line for past economic damages, a line for future economic
damages, and a line for past and future economic damages. There was no line
for noneconomic damages. The jury awarded $13,658 in past economic
damages and $151,342 in future economic damages. In line three, the jury
added the two previous lines together, for a total award of $165,000. Polling
showed that the jury was 11 to 1 in favor of the verdict.
Adams filed a motion for new trial or remittitur. As part of her response,
Karthauser obtained a declaration from the presiding juror. The declaration said
the jury was aware that there was a problem with the verdict form since there
was no line for noneconomic damages, and they had simply included them in the
award for future economic damages.
Adams had noted the motion before the trial judge, Judge Sullivan. On
March 27, 2013, the motion was heard by Cowlitz County Judge Stephen
Warning. Adams did not object when the motion was heard by Judge Warning.
At the hearing, Karthauser's attorney explained how the problem with the
verdict form arose. He said opposing counsel had prepared the verdict form:
Judge Sullivan didn't like either one of our verdict forms even
though they were pattern instructions. So he cut them down the
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No. 71733-2-1/9
middle and he put mine on the bottom and Mr. Mitchell's on the top.
And Mr. Mitchell's office, you know, typed it up and someone left
out non.[2] And I suggest your analysis is correct; it doesn't matter
what they call it. They have awarded that, and it was 11 to 1 polled
verdict.
(Emphasis added.) Adams did not object to this account of how the verdict form
was prepared.
Judge Warning denied the motion:
THE COURT: All right. Thank you, Counsel. Ends up being
an interesting issue because of that verdict form. You know, it
happens. I wish I could say I've not ever been reading instructions
and run across or realized we didn't do this. And those are
generally harry times at that point.
What we've got here is there is testimony that was before
the jury about future economic potential consequences. Palliative
medical treatment, diminution in earning capacity. Those were both
properly before the jury. Because of the manner of the jury verdict
form we have basically a non-differentiated future damages. And
that appears how the jury took it.
It includes the damages for pain and suffering, and it seems
to me that that's important here, that they're not differentiated.
The—any time we give those instructions I always kind of cringe
because we ask the jury to perform this—you know, what's
basically alchemy, turn pain and suffering into gold. And we tell
them, we don't have—we don't have any fixed or something or
other way for you to do this; we drop it in your lap and you have to
come up with a number. I mean, that's what we tell them.
And so, because of that, the case law is pretty clear that the
notion of general damages are uniquely the province of the jury.
Here we've got a non-differentiated number, assuming I can
consider the foreman's affidavit, that included something economic.
But, in either event, we have a non-differentiated number that
includes that pain and suffering in it.
The verdict might be large in comparison to the bell curve,
but I don't think that I've got anything in front of me that shows it's a
result of passion or prejudice, as that is defined, so I will deny the
motion.
Adams appeals.
2 Mr. Mitchell was Adams' attorney.
No. 71733-2-1/10
MOTION FOR NEW TRIAL OR REMITTITUR
Adams assigns error to the denial of her motion for new trial or remittitur.
We review for abuse of discretion a trial court's denial of a CR 59(a)
motion for a new trial. Sommer v. Dep't of Soc. & Health Servs., 104 Wash. App.
160, 170-71, 15P.3d664, review denied. 144Wn.2d 1007(2001). We review a
trial court's denial of a new trial more critically than we do its grant of a new trial
because a new trial places the parties where they were before, while a decision
denying a new trial concludes their rights. State v. Taylor. 60 Wash. 2d 32, 41-42,
371 P.2d 617 (1962).
Denial of a motion for remittitur strengthens the verdict. Bunch v. King
Countv Dep't of Youth Servs.. 155 Wash. 2d 165, 180, 116 P.3d 381 (2005). When
reviewing a trial court's ruling on a motion for remittitur, we strongly presume the
jury's verdict is correct. Bunch. 155 Wash. 2d at 179. We review a trial court's
denial of remittitur for an abuse of discretion. Bunch, 155 Wash. 2d at 176. Thus,
we will not disturb a jury's damages award "'unless it is outside the range of
substantial evidence in the record, or shocks the conscience of the court, or
appears to have been arrived at as the result of passion or prejudice'" after
viewing the evidence in the light most favorable to the nonmoving party. Bunch,
155 Wash. 2d at 179, quoting Bingaman v. Grays Harbor Cmtv. Hosp.. 103 Wash. 2d
831, 835, 699 P.2d 1230 (1985). The substantial evidence test asks whether
there is sufficient evidence to convince an unprejudiced, thinking mind. Bunch.
155 Wash. 2d at 179. The "shocks the conscience" test asks if the award is
flagrantly outrageous and extravagant. Bunch. 155 Wash. 2d at 179. Passion and
10
No. 71733-2-1/11
prejudice must be unmistakable to affect the jury's award. Bunch. 155 Wash. 2d at
179.
Substantial Evidence
The error in the verdict form plays no role in Adams' argument. She
concedes that the jury's award contains both economic and noneconomic
damages. She nevertheless contends the award of $165,000 is extreme and
unsupported by substantial evidence:
The evidence showed that Karthauser sustained soft-tissue injuries
only in the subject accident, received healthcare treatment for
alleged injuries attributable to that accident for only several months,
had not treated for a couple of years prior to the date of trial, and
did not lose any time from her physical job as a result of the injuries
allegedly sustained in the accident.
Adams' argument is more like an argument to a jury than an argument on
the law. The jury was entitled to accept Karthauser's competing version of the
facts, which included:
• Testimony of her physical therapist that she would benefit from more
physical therapy.
• Past medical bills and records from her physical therapy office showing
the cost per visit for both physical therapy and massage therapy.
• Testimony of her family members as to the lingering effects of the accident
on her daily activities and pain level.
• Testimony of Karthauser that she stopped treatment because she could
no longer afford the debt load associated with continuing physical therapy.
• Testimony of Karthauser that although she continued with her work as a
caretaker, she was no longer employed by the State because of her
physical deficits and was now paid by the patient privately.
• Testimony of Karthauser that she would be unable to continue caring for
her current patient when her son left home because she relied on him to
help with heavy lifting postaccident.
11
No. 71733-2-1/12
Adams presented no contrary evidence. Her closing argument suggested that it
was unreasonable to believe that Karthauser had continuing pain because she
had stopped going to physical therapy and made no claim for pain medication.
Adams claims it is significant that there was no testimony by a physician to
support an award of future damages. She makes the same claim to support her
argument that the trial court erred in denying her motion for judgment as a matter
of law. She claims medical testimony was necessary to establish (1) "the nature
and extent of treatment that would be reasonably and necessarily incurred by
Karthauser in the future to help her condition" and (2) "restrictions or limitations
placed on Karthauser, permanent impairment, disability, or the like, caused by
the motor vehicle accident."
A plaintiff can present legally sufficient evidence of future damages
without presenting the testimony of a medical doctor. Bitzan v. Parisi. 88 Wash. 2d
116, 558 P.2d 775 (1977).
There is no reason laymen may not testify to their sensory
perceptions, the weight of the testimony to be determined by the
trier of fact. Physical movement by the injured person can be seen
and described by a layman with no prior medical training or skill.
Furthermore, an injured person can testify to subjective symptoms
of pain and suffering, and to the limitations of his physical
movements.
Proof of pain and suffering as late as at time of trial even
though subjective in character will warrant an instruction on future
damages. The same is true of proof of disability and lost earnings.
The continued existence of these elements of damage at the time
of trial permits a reasonable inference that future damage will be
sustained. Expert medical testimony to this effect may also be
given but it is not essential.
Bitzan. 88 Wash. 2d at 121-22 (citations omitted).
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No. 71733-2-1/13
Once a plaintiff provides sufficient evidence to establish the fact of
damage, the tortfeasor cannot escape liability because of the difficulty of proving
the amount of damage. Reefer Queen Co. v. Marine Const. & Design Co.. 73
Wash. 2d 774, 781, 440 P.2d 448 (1968). The jury's constitutional role is to answer
questions of fact and the amount of damages is a question of fact. Bunch. 155
Wn.2dat179.
Karthauser established the fact that she was damaged. She presented
the testimony of her physical therapist who treated her after her accident,
medical and hospital bills from the night of the accident, and her own testimony
of continuing pain and physical deficit from the accident. The jury had all it
needed to make an award of $165,000, whether that figure includes both
noneconomic and economic future damages, or just economic future damages.
The evidence was sufficient to convince an unprejudiced, thinking mind
that $165,000 was an appropriate damage award. We conclude that substantial
evidence supports the verdict and that $165,000 was not an extreme amount
calling for remittitur.
Taxpayer comment in closing argument
At the end of Karthauser's closing statement, she appealed to the jurors
as taxpayers:
Because if she doesn't get anything and she continues to
deteriorate, us taxpayers are going to be paying for her. Do you
want to pay for her?
Adams contends that this argument had no purpose except to inspire
passion and prejudice in the jury, leading to an excessive award:
13
No. 71733-2-1/14
Attorney Crandall's statements during closing argument, essentially
threatening the jury, as taxpayers, with having to pay for
Karthauser's economic needs for the rest of her life ifthey did not
give her a lot of money, especially in this day of frequent references
to, and dissatisfaction with, the "handout society" that many believe
has become the United States, and the fear of increasing taxes in
economically uncertain times, created significant prejudice against
Adams in this case. Statements such as that made by Attorney
Crandall, even after the objection is sustained, cannot be undone.
Br. of Appellant at 19.
A finding that a verdict is the result of passion or prejudice can support
either a motion for new trial or remittitur. The question to resolve in determining if
a new trial is warranted by a remark in argument is whether the remark
engendered such a feeling of prejudice as to prevent the litigant from having a
fair trial. Aluminum Co. of Am. v. Aetna Cas. & Sur. Co.. 140 Wash. 2d 517, 537,
998 P.2d 856 (2000). The misconduct complained of must be prejudicial in the
context of the entire record. Aluminum Co. of Am.. 140 Wash. 2d at 539, citing with
approval 12 James Wm. Moore, Federal Practice § 59.13(2)(c)(l)(A) (3d ed.
1999). Remittitur of a jury's award is inappropriate unless the passion and
prejudice is "unmistakable." Bingaman. 103 Wash. 2d at 836.
In civil cases, where life and liberty are not at issue, the law militates in
favor of a standard that more generally upholds trial court decisions. Aluminum
Co. of Am.. 140 Wash. 2d at 539. We agree with Adams that it is improper to
suggest to jurors that taxpayers will have to assume the burden of caring for an
injured plaintiff if the jury fails to make an award against the defendant. But the
remark in question here, when considered in the context of the record as a
whole, does not establish the quantum of passion or prejudice required to disturb
14
No. 71733-2-1/15
a jury's damage award. See State v. Jellovich. 156 Wash. 388, 391, 287 P. 3
(1930) (remark that a defense witness from Oregon would be paid witness fees
and mileage from county taxes was "not of sufficient moment to justify a reversal
of the case").
The trial court's refusal to order a new trial or remittitur was not error.
Likewise, the court did not err in denying Adams' motion for judgment as a matter
of law.
JUDGE FOR POSTTRIAL MOTION
Adams argues that reversible error occurred when Judge Warning, not
Judge Sullivan, heard her motion for new trial and remittitur. Citing CR 63(b),
she asserts it is "clear that the judge who presided over the trial should similarly
preside over all post-trial motions, absent illness, death, or other disability."
Adams has waived this argument. Although she noted the motion before Judge
Sullivan, she did not object when Judge Warning heard it.
Even if the argument had been properly preserved, it lacks merit. The rule
Adams cites allows another judge to step in when an unexpected disability
prevents the judge who presided at a trial from finishing the case:
Disability of a Judge. If by reason of death, sickness, or other
disability, a judge before whom an action has been tried is unable
to perform the duties to be performed by the court under these
rules after a verdict is returned or findings of fact and conclusions of
law are filed, then any other judge regularly sitting in or assigned to
the court in which the action was tried may perform those duties;
but if such other judge is satisfied that he cannot perform those
duties because he did not preside at the trial or for any other
reason, he may in his discretion grant a new trial.
CR 63(b).
15
No. 71733-2-1/16
Karthauser asserts in her briefing, and Adams does not dispute, that
Judge Sullivan had switched courthouses temporarily with Judge Stephen
Warning. The exchange had nothing to do with disability. Judge Sullivan had
recused himself from a trial in Wahkiakum County, where he was the only judge.
CR 63(b) is therefore inapplicable. Adams does not cite authority demonstrating
that only the trial judge can hear a posttrial motion.
As the prevailing party, Karthauser is entitled to statutory attorney fees of
$200 under RCW 4.84.080.
Affirmed.
7*-
WE CONCUR:
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16