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[2]     No. 39334-1-I

[3]     1998.WA.647 <>

[4]     May 04, 1998




[6]     Source of Appeal: Appeal from Superior Court of King County Docket No: 95-2-02149-2 Judgment or order under review Date filed: 08/09/96 The Honorable Judge signing: Hon. James W. Bates Jr

[7]     Counsel: Counsel for Appellant(s) Payton Smith Davis Wright Todd Riese & Jones 2600 Century Square 1501 4th Ave Seattle, WA 98101-1662 Thomas A. Lemly Davis Wright Tremaine 2600 Century Square 1501 4th Ave. Seattle, WA 98101-1662 Stephen M. Rummage Davis Wright Tremaine 2600 Century Square 1501 4th Ave. Seattle, WA 98101-1688 John H. Zobel 2600 Century Sq 1501 4th Ave Seattle, WA 98101-1688 Counsel for Respondent(s) Charles K. Wiggins Attorney At Law 241 Madison Ave N Bainbridge Is, WA 98110 David E. Breskin Short Cressman & Burgess 3000 1st Interstate Cntr 999 Third Ave. Seattle, WA 98104

[8]     IN Agreement Ronald E. Cox H. Joseph Coleman

[9]     The opinion of the court was delivered by: Authored by Susan R. Agid

[10]    [Editor's note: originally released as an unpublished opinion]

[11]    AGID, J.

[12]    -- Farmers Group, Inc. and Farmers Insurance Exchange appeal the judgment in favor of William Houck entered on the jury verdict in this action for employment discrimination. Houck was formerly the managing attorney for Farmers's Seattle Branch Legal Office. Farmers contends the trial court erred in granting partial summary judgment on the question whether Houck established the presence of a disability and in declining to give the jury its proposed instruction on the business judgment rule. Farmers also raises numerous other issues related to evidentiary rulings, the jury's damage award, and the court's ruling denying its motions for a new trial. We find no error or abuse of discretion and affirm.

[13]    FACTS

[14]    William Houck practiced as a litigator in Chicago for six years. In 1984, Farmers Insurance hired him to open a Branch Legal Office in Seattle. By 1994, the office employed seven attorneys and roughly the same number of non-attorney staff. As managing attorney, Houck was the office administrator and also maintained his own caseload. From 1984 through 1994, he consistently received satisfactory or good marks in his annual performance reviews.

[15]    Houck testified at trial that in 1989 he experienced a panic attack during trial. It was his first such attack, and he did not report it to Farmers at the time, instead seeking psychological counseling which continued over the next five years. When he realized that he was no longer able to handle confrontational or stressful litigation, Houck avoided those cases, something he was able to do because he was responsible for assigning cases to attorneys in the office.

[16]    In March 1994, during a meeting at which he discussed Farmers's policy against sexual harassment with clerical staff members, several secretaries complained about the behavior of one of the lawyers in the office, Geoff Swindler. Houck reported the complaints to Patricia Kayajanian, his supervisor in Los Angeles. She told him he had to report the complaint to the Human Resources Department as required by Farmers's sexual harassment policy. She criticized Houck for making that necessary by not handling it himself. At the conclusion of its investigation, the Human Resources Department directed Houck to reprimand Swindler for his conduct. In June 1994, Swindler and two other lawyers in the office filed a formal complaint alleging that Houck was incompetent to manage the office for various reasons, including his failure to litigate. Farmers did not formally investigate the complaint at that time but gave Houck a "below expectations" evaluation for the first time, citing both sets of complaints as the basis.

[17]    In September 1994, Kayajanian decided to go forward with investigating the June complaint against Houck and directed him to come to Los Angeles to discuss the matter with her and Ed Morris, Vice President of Claims Litigation. During that meeting, Houck explained that he did not litigate because he had been unable to try cases or to handle contested depositions and arbitrations since his 1989 panic attack. Morris responded that Houck could not continue as managing attorney if he did not try cases. Houck asked if they could accommodate him either in his current position or another position at Farmers. Morris and Kayajanian told him that they would look into other possibilities and get back to him.

[18]    When Houck returned to Seattle, he learned that David Lancaster, the lead trial attorney in the office, had assigned files to a new attorney and to outside counsel without informing Houck. Because this violated office policy, Houck recommended to Kayajanian that Lancaster be placed on probation. Kayajanian responded by flying to Seattle and putting Houck on involuntary medical leave. She forced him to clean out his office and return the keys to the company car the same day. By letter dated October 5, 1994, Kayajanian informed Houck that she and Morris had concluded that he could not continue as managing attorney unless he was able to try cases. She demanded a written medical release and told him that, when his medical leave expired on October 17, Farmers would not allow him to return until he provided a letter from his doctor indicating he was able to perform "all of the essential requirements" of the managing attorney position. In response, Houck informed Farmers that it had effectively forced him to resign and that he believed he had been constructively discharged.

[19]    Houck filed this action for employment discrimination and retaliation in January 1995. On August 9, 1996, at the conclusion of a seven week trial, the jury returned a verdict for Houck. Farmers appealed. It does not contend that the jury's verdict was not supported by substantial evidence. Instead, it argues that numerous errors by the court below require reversal.

[20]    ARGUMENT(S)

[21]    I. Partial Summary Judgment

[22]    Farmers first contends the trial court erred when it granted partial summary judgment to Houck on the question whether he had established the presence of a disability. In order to prevail, Houck had to prove he was discharged because of the "presence of any sensory, mental, or physical disability."*fn1 He moved for summary judgment on the basis that his condition, "major depression with severe anxiety," constitutes a disability as a matter of law. Because the question whether a particular condition is a handicap is generally a jury question under Washington law, the trial court was initially reluctant to grant the motion and declined to rule until Farmers's medical expert had time to dictate his report. The expert's report included the following diagnosis:

[23]    Diagnostic Impression: Major Depressive Disorder, chronic of moderate severity with melancholic features (296.22). There is also a history of panic disorder which is secondary to the major depressive illness.

[24]    When reasonable minds could reach but one conclusion from the evidence presented, questions of fact may be determined as a matter of law and summary judgment is appropriate.*fn2 Because medical experts for both sides agreed that Houck has a major depressive disorder, there is no basis on which reasonable minds could differ that he has a "medically cognizable or diagnosable" condition. Summary judgment was thus appropriate.

[25]    Farmers argues that this ruling precluded it from contending that Houck's medical condition was not so severe that it prevented him from performing the essential functions of his job as managing attorney. But Farmers ignores that its own records reflect both that it put him on involuntary medical leave when he told his superiors that he was unable to handle confrontational litigation and that Farmers later refused to reinstate him on the ground that his "current medical condition" did not warrant his reinstatement. Farmers's own actions established that, in its opinion, Houck's medical condition made him unable to do the job. The trial court did not err in granting summary judgment on this issue.

[26]    II. Motions in Limine

[27]    The trial court ruled in limine that Farmers could not make any reference to the contents of Houck's psychiatrist's medical records.*fn3 While Farmers agreed that "{Houck} had a major depression disorder with severe anxiety phobia," it asserted that the records were relevant to the nature and extent of Houck's disability and to any obligation it had to accommodate Houck. The psychiatrist's chart notes contained a great deal of irrelevant and prejudicial information, and Farmers never made an offer of proof or took any steps to demonstrate to the trial court what documents in the voluminous file were properly admissible. While Farmers did make an offer of proof after both parties had rested, this was too late to permit the court to admit the evidence and did not refer to any specific documents or parts of the medical records Farmers contended were admissible. As such, both Farmers's argument opposing the motion in limine and its last minute offer of proof were insufficient to inform the trial court of what it contended was admissible to show the nature and extent of Houck's disability. While we agree with Farmers that some of the evidence in Dr. Jones's records was admissible,*fn4 it is up to the party seeking admission to sort through the evidence and demonstrate to the court what is admissible and why. We will not require the trial court to do it for them. Moreover, Farmers was not even aware of much of the information in the file at the time it put Houck on medical leave and later refused to reinstate him. As Farmers admits, an employer cannot justify a discharge with facts acquired during litigation.*fn5 Under these circumstances, the trial court did not abuse its discretion by excluding the psychiatrist's file and prohibiting Farmers from making any reference to its contents. We recognize that Houck had the initial burden on the motion in limine. But once he made a prima facie showing that the material in the file was irrelevant and/or overly prejudicial, the burden shifted to Farmers to persuade the court what portions of it were not. This it failed to do.

[28]    Farmers argues that the court's ruling prevented it from arguing that Houck was so profoundly disabled that he was not qualified to manage the office in the first instance. We agree that the ruling weakened its case on that issue because there was evidence that Houck's disability prevented him from dealing with the confrontations inherent in personnel management and decisionmaking. But Farmers was still not prevented from presenting its theory that Houck was incapable of managing the office and was therefore not qualified for the job to begin with. As Houck notes, Farmers presented extensive testimony by the three attorneys who had filed the complaint against him, as well as testimony by two other attorneys in the office, two secretaries, and two of his supervisors, all of which supported Farmers's theory that Houck was unable to effectively manage the office. Farmers was not precluded from so arguing.

[29]    Also included in the psychiatrist's file and the subject of a separate motion in limine were communications between Dr. Jones and Houck's two disability insurers.

[30]    The trial court properly excluded that evidence. First, under the collateral source rule, the trial court could exclude it because it found that its "extremely prejudicial effect" outweighed any probative value the evidence had.*fn6 Second, the record reflects that Houck's disability payments compensated him for the loss of his private practice, not for the loss of his position at Farmers. Counsel for Farmers argued below that Houck should not be allowed to certify that he is totally disabled in order to obtain benefits and then seek to recover for discrimination on the ground he is not totally disabled. This is true as far as it goes. But Houck's attorney explained to the court that Houck had never claimed he was totally disabled and obtained benefits on a claim that he was partially disabled. Farmers cannot dispute this assertion because it admitted it never requested production of the pertinent application forms. Because Farmers was unable to produce any evidence to support its assertion that Houck had ever claimed to be totally disabled, the trial court did not abuse its discretion in excluding evidence related to Houck's disability insurance.

[31]    III. Deposition Cutoff

[32]    Farmers next contends the trial court abused its discretion when it ruled on May 10, 1996, that Farmers would not be permitted to complete Houck's deposition until it complied with outstanding discovery requests. These included case summaries the court had previously ordered produced, all the legal files from the Seattle office and all material Houck needed access to in light of Farmers's affirmative defense that he improperly assigned cases and misled his supervisors about file assignments.*fn7 The trial court explained to counsel for Farmers, "You get them all the material that they have requested prior to {Houck's} deposition, and it will take place, but if {Houck doesn't} have it, there will be no deposition." Farmers instead sought discretionary review in this court, which we denied on May 31. Trial was scheduled for June 24. On June 17, Houck moved to cut off further discovery, noting that although Farmers produced some of the files it was ordered to produce during the weeks following our order denying discretionary review, it had still not produced all the files that were the subject of that order. In light of Farmers's continuing discovery violations, the trial court was well within its discretion when it cut off discovery one week before trial was to begin.*fn8

[33]    IV. Evidence of Case Assignment Practices

[34]    Farmers also argues that the trial court abused its discretion when it excluded testimony by Rodney Hollenbeck, Houck's successor as managing attorney, about a compilation of the numbers and types of cases Houck assigned to himself and to David Lancaster which he prepared in March 1996. The trial court further excluded two charts (exhibits 218 and 219) which reflected the results of Hollenbeck's compilation. Farmers argues that the trial court's ruling prevented it from presenting "the core of its defense" to Houck's retaliation claim because it could not argue that the complaints by Houck's subordinates were valid. But to prevail on his claim for retaliation, Houck did not need to prove that the three subordinate attorneys in his office who filed the complaint acted in retaliation. Rather, he had to show that Kayajanian and Morris retaliated against him. As the trial court noted in making its ruling, the relevant inquiry about his retaliation claim was: "What was in the minds of the decision-makers at the time the decision was made."*fn9 Because the evidence Houck's successor compiled was not evidence of which Kayajanian and Morris could have been aware when they made their decisions in 1994, the trial court correctly excluded it.

[35]    V. Improper Admission of Evidence

[36]    Farmers also contends the trial court abused its discretion by allowing Houck to present evidence of the responsibilities of managing attorneys in other companies. Farmers cites this court to just two examples. First, after Lancaster testified that a managing attorney's job includes litigation, Houck asked him on cross examination whether he was aware that managing attorneys with whom he was acquainted in other offices had not tried cases in as many as six or eight years. Farmers neither objected to Houck's questions on cross examination as irrelevant nor does it specifically address that testimony on appeal. There is consequently no basis for reviewing it or concluding that the testimony was error.*fn10

[37]    Second, Farmers contends that the trial court erred in permitting Dr. Peter Scontrino, an industrial psychologist, to testify as an expert that personally trying cases was not an essential function of a managing attorney's job at Farmers. Specifically, Dr. Scontrino testified to his opinion that litigating was not an essential function of a managing attorney's job at Farmers because its literature reflected that, as an organization, Farmers emphasized the managerial dimension of a managing attorney's position. In the course of conducting his investigation, Dr. Scontrino had reviewed declarations submitted by managing attorneys at other Farmers branch offices as well as managing attorneys for the Seattle legal departments of several other insurance companies. He also reviewed a substantial amount of material related to Farmers alone, including job descriptions, performance evaluations, and statements made at Farmers's conferences for managing attorneys at its various branch offices. Dr. Scontrino explained his investigative methods and how he arrived at his HOLDING(S)s in substantial detail. He repeatedly acknowledged that Farmers was entitled to define its jobs in any way it chose, and Farmers had ample opportunity to cross examine him on this issue. There is no basis for concluding that his testimony could have confused the jury about what Farmers required of a managing attorney. The trial court did not abuse its discretion in permitting Dr. Scontrino to give his opinion about the skills Farmers treated as essential to the managing attorney position.*fn11

[38]    VI. Limitation of Testimony

[39]    Farmers also argues that the trial court abused its discretion by improperly limiting the complaining lawyers's testimony that Houck "was not pulling his fair share of the load." In the body of its brief, however, Farmers cites just one example to support this contention. And Farmers failed to inform us that the actual basis for Houck's objection in that instance was lack of foundation.*fn12 The trial court sustained the objection but pointed out to counsel for Farmers that he could lay a foundation; counsel replied that he did not think he could. Thus, there is no basis for concluding that the trial court abused its discretion in excluding the proffered testimony.

[40]    VII. Witness Impeachment

[41]    Farmers next contends the trial court "improperly influenced the jury's view of the credibility of Farmers's witnesses." First, Farmers argues that the trial court erred in giving the jury a mid-trial instruction at the conclusion of Farmers's direct examination of David Lancaster. Houck moved to strike portions of that testimony, arguing that it was inconsistent with the summary list of trials, arbitrations and mediations Farmers produced during discovery in response to Houck's request for all litigation files and case summaries for the time he was managing attorney.*fn13 Farmers concedes that the summary was both inaccurate and incomplete. But rather than grant Houck's motion to strike, Farmers urged the court to address Houck's concern by instructing the jury "that we did produce {exhibit 330} and that Mr. Lancaster has testified inconsistently with what that summary shows, and that they are to draw their own HOLDING(S)s from it." Farmers also argued that the files on which the list was based had been available to Houck since mid-June, implying that Houck should have been able to ascertain the degree to which the list was incorrect. Houck argued in turn that he was entitled to rely on Farmers's certification that the list was accurate. At that point, Farmers again suggested that the matter could be resolved by instructing the jury that "in response to a discovery request . . . a summary had been prepared and that . . . the jury may find Mr. Lancaster had testified inconsistently with that and the jury could draw their own conclusions from that." The court asked both sides to provide it with proposed instructions to that effect.

[42]    By the next morning when they submitted the proposed instructions, Farmers had changed its position and objected to the instruction as unnecessary. It also argued that the court should wait until the end of trial to instruct the jury on that issue. But Houck argued that to wait until then would make the instruction meaningless. The court informed counsel that it would give the jury the instruction when Farmers had completed its direct examination of Lancaster but before Houck's cross examination. The court instructed the jury as follows:

[43]    Defendants, their attorneys and the current managing attorney, Rodney Hollenbeck, . . . prepared a summary of the trials, mediations and arbitrations for the Seattle office. Exhibit 330, the summary of the trial summaries, was prepared by previous attorneys for Farmers during the spring of 1996. Defendants and their prior attorneys certified that this information was full, complete, accurate and truthful, and made no effort prior to trial to correct the summary, Exhibit 330, in any way.

[44]    Mr. Lancaster has testified at this trial in a manner that is contrary to the summary provided by defendants and their prior attorneys. You may draw any inferences from this fact which you find appropriate concerning the veracity of the defendants' witnesses or the defendants' case.

[45]    Farmers argues on appeal that the instruction was an improper comment on the evidence. It was not.*fn14 And the argument ignores that Farmers argued in favor of such an instruction as an alternative to granting Houck's motion to strike portions of Lancaster's testimony. A party cannot invite a court to give an instruction and then complain of error.*fn15 The trial court did not abuse its discretion by taking this step to assure that Farmers's failure to provide complete and accurate discovery did not inure to its advantage.*fn16

[46]    Farmers asserts that the trial court erred in allowing Houck's attorney to impeach its witness, Kristine Parker, after she denied she had written or signed a letter (exhibit 48) that was very supportive of Houck. Parker denied that the "neat" signature on the letter was hers because her signature is "messy." Houck impeached her with a series of "neat" signatures virtually indistinguishable from that on exhibit 48. Houck also impeached her denial by cross examining Swindler to show that Farmers had failed to challenge the authenticity of exhibit 48 in the parties's pretrial Joint Statement of Evidence. Farmers admitted that it had not objected to the letter's authenticity but argued that it had no obligation to do so because it was also attached to a letter Houck had sent to his Los Angeles supervisors which was admitted as exhibit 50. That did not relieve Farmers of its responsibility to challenge the letter's authenticity when it was separately marked as an exhibit if it intended to make that challenge at trial. Both areas of inquiry went directly to the question whether Parker had decided shortly before she testified to deny she was theof the letter. The trial court did not abuse its discretion in overruling Farmers's objections to both lines of questioning.

[47]    VIII. Business Judgment Rule

[48]    Farmers next argues that the trial court abused its discretion in refusing to give its proposed instruction on the business judgment rule which would have stated:

[49]    The laws against discrimination do not prevent an employer from assigning work to an employee, requiring that an employee meet certain performance standards, or making termination decisions. The law does not require that every employment decision be correct or be one you agree with. As long as an employer exercises its business judgment at the time it acts and does not discriminate against an employee based on the employee's disability or handicap, you are not to second-guess that decision. An employer has a right to act based on its own judgment, even if that judgment later proves to be incorrect.

[50]    The number and the specific language of jury instructions is a matter within the trial court's discretion.*fn17 Instructions are sufficient when they permit a party to argue its theory of the case, are not misleading and, when read as a whole, properly inform the trier of fact of the applicable law.*fn18 If these requirements are met, the court need not give a detailed augmenting instruction.*fn19 It may also properly refuse to give an instruction that is cumulative of or collateral to instructions already given.*fn20

[51]    Here, other instructions told the jury that, if Houck met his burden of proving that he had been the subject of an adverse employment action, a reason for which was the presence of his disability, and that he was able to perform the essential functions of the job, the employer would then have an opportunity to produce evidence that there was a non-discriminatory reason for its action.*fn21 If it did so, the burden would shift back to Houck to prove that the stated reason was a mere pretext for discrimination. *fn22 Significantly, the jury was also instructed to consider the employer's judgment about what functions of the job were essential although it was not bound by that judgment.*fn23 Under these instructions, the jury could have found for Houck only if it found that the reason for Farmers's adverse employment action was his disability and not a legitimate exercise of its business judgment. The proposed instruction was therefore unnecessary. The proposed instruction also overemphasized just one of the elements the jury had to consider in reaching its verdict. The trial court did not abuse its discretion in refusing to give it.

[52]    IX. Expert Testimony About Damages

[53]    Finally, Farmers raises several issues in connection with Houck's damage award. First, it contends the trial court abused its discretion when it permitted hearsay testimony by Houck's expert which Farmers had no opportunity to cross examine. Farmers argues that Dr. Lowell Bassett's opinion on the present value of Houck's future loss of earnings was improperly based on information provided by Kent Shafer, a job market specialist. Farmers acknowledges that ER 703 permits an expert to base his opinion on facts not admissible in evidence if it is "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject." But it argues there was no showing that the information provided by Kent Shafer was this kind of evidence, even though it did not object on that basis below. At trial, the only objection to the information Bassett got from Shafer was on hearsay grounds. Dr. Bassett testified that he normally relies on the opinions of job market vocational specialists to compute economic loss and that he had relied on Shafer's opinion for that purpose about 50 times. Because there was no objection to his testimony on the ground that it was inadequate to establish that other experts in his field also generally rely on data of this kind, Farmers cannot now raise that issue on appeal.*fn24 Farmers had ample opportunity to cross examine Dr. Bassett about the information Shafer provided, asking him more than 40 questions about Shafer's credentials and investigative methods. Farmers also cross examined both Houck and Dr. Bassett about ARGUMENT(S)s each had had with Shafer. The trial court did not abuse its discretion in admitting Dr. Bassett's testimony.*fn25

[54]    X. Damages Award for Emotional Distress

[55]    Farmers also contends that the trial court erred in declining to set aside the jury's award of $920,000 in damages for emotional distress because it was not supported by the evidence. Under RCW 4.76.030, we reverse such an award only if we "find from the record that the damages awarded . . . by the jury were so excessive or so inadequate as unmistakably to indicate that the amount of the verdict must have been the result of passion or prejudice." A jury's award of noneconomic damages and a trial court's reluctance to overturn it is entitled to special deference because the court and jury have had the opportunity to evaluate first hand the "candor, sincerity, demeanor, {and} intelligence" of the witnesses.*fn26 This court is much farther removed from the decision, having as we do only a written transcript to evaluate. Although we agree the award was high, the record does reflect that Houck suffered substantial emotional pain and humiliation because of the way he was treated after he reported the sexual harassment complaints in his office and informed his supervisors of his disability. We reject Farmers's argument that Nord v. Shoreline Sav. Ass'n,*fn27 requires detailed testimony of objective symptomatic manifestations of his distress over and above what could be inferred from Farmers's conduct and Houck's testimony regarding its impact. As this court observed in Herring v. DSHS,*fn28 the "objective symptom requirement applies in cases where negligent infliction of emotional distress is asserted and goes to proof of liability, not damages." Houck was required only to offer proof of emotional distress in order to recover damages attributable to his wrongful termination.*fn29 The trial court was within its discretion in declining to overturn the jury's award of emotional distress damages.

[56]    XI. Order Denying Supplemental Motion for a New Trial

[57]    Finally, Farmers contends the trial erred in denying as untimely its supplemental motion for a new trial.*fn30 Farmers admits it did not file its motion until 12 days after entry of judgment. The second motion supplemented its original motion for a new trial filed two days earlier. But the first motion had not challenged the comment Houck's counsel made in closing that is the subject of its supplementary motion.*fn31 Farmers argues that its second motion was timely because any judgment entered without five days notice is void as a matter of law under CR 54(f)(2). But this argument overlooks that CR 54(f)(2)(C) provides for immediate entry of judgment "{i}if presentation is made after entry of verdict or findings and while opposing counsel is in open court." The record reflects that, after the jury returned at 1:15 p.m. and had been polled and released, Houck informed both the court and counsel for Farmers, who had stayed to talk with jurors, that he had written out a form of judgment which was being typed by his secretary and would be delivered for immediate entry. Counsel for Farmers told Houck's attorney to fax it to his office, which he did at 2:30 p.m. At 3:30 p.m. the court called to tell Houck's attorney that it wanted to proceed. He returned to the court but counsel for Farmers continued to make himself unavailable. Because counsel for Farmers chose to return to his office even though he was informed by Houck's attorney that he was preparing a judgment for immediate presentation to the court, the court permitted him to participate by speaker phone. The court entered the judgment just two and a half hours after the jury returned its verdict. In the circumstances, there is no basis for concluding that the trial court abused its discretion by proceeding with the entry of judgment and allowing counsel for Farmers to participate by telephone.

[58]    The parties stipulated that Farmers did not object, request a curative instruction or move for a mistrial because of any statement Houck's counsel made during his rebuttal closing argument. Even if its supplemental motion for a new trial had not been untimely, Farmers could not prevail on this issue because it did not properly preserve it for appeal.*fn32

[59]    XII. Attorney Fees

[60]    RAP 18.1 authorizes an award of costs and attorney fees on appeal when the right to recover fees is provided by statute as it is here.*fn33 Provided he complies with the requirements of RAP 18.1, we award Houck his attorney fees on appeal.

[61]    Affirmed.

[62]    WE CONCUR:

Opinion Footnotes

[63]    *fn1 RCW 49.60.180(2). WAC 162-22-040(1)(b) explains: "The presence of a sensory, mental, or physical handicap" includes, but is not limited to, circumstances where a sensory, mental, or physical condition: (i) Is medically cognizable or diagnosable; (ii) Exists as a record or history; or (iii) Is perceived to exist, whether or not it exists in fact.

[64]    *fn2 Van Dinter v. City of Kennewick, 121 Wn.2d 38, 47, 846 P.2d 522 (1993).

[65]    *fn3 We review a trial court's order granting a motion in limine for abuse of discretion. Douglas v. Freeman, 117 Wn.2d 242, 255, 814 P.2d 1160 (1991).

[66]    *fn4 Houck's attorney conceded as much at oral argument.

[67]    *fn5 Hollingsworth v. Washington Mut. Sav. Bank, 37 Wn. App. 386, 394, 681 P.2d 845, review denied, 103 Wn.2d 1007 (1984).

[68]    *fn6 In deciding whether evidence of industrial insurance claims is admissible notwithstanding the rule that a defendant is not entitled to introduce evidence of compensation from collateral sources, a court must weigh the probative value of the proffered evidence against its prejudicial effect on the plaintiff's case. Goodell v. ITT-Federal Support Servs., Inc., 89 Wn.2d 488, 493, 573 P.2d 1292 (1978). The decision to admit such evidence lies within the sound discretion of the trial court. Id.

[69]    *fn7 Decisions denying or granting sanctions for discovery abuse are reviewed for abuse of the court's discretion. In re Estate of Fahnlander, 81 Wn. App. 206, 209, 913 P.2d 426, review denied, 130 Wn.2d 1002 (1996). A court abuses its discretion only when its decision is manifestly unreasonable or based on untenable grounds. Id.

[70]    *fn8 Under the trial court's pretrial order, the original discovery cutoff was May 2, 1996.

[71]    *fn9 As we explained in Hollingsworth, 37 Wn. App. at 394: The employer's intent at the time of the challenged act, i.e., discharge, is the critical inquiry. The legitimate nondiscriminatory reasons cannot be based upon facts not known to the employer at the time of the challenged act. Facts unknown at the time of the challenged act do not make the alleged unlawful practice more or less probable and are completely irrelevant. Thus, an employer may not articulate reasons for discharge that are based on evidence uncovered through discovery or in any other manner to justify a prior discharge. (Citations omitted.) See also Gaglidari v. Denny's Restaurants, Inc., 117 Wn.2d 426, 438, 815 P.2d 1362 (1991).

[72]    *fn10 Cowich Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).

[73]    *fn11 Reese v. Stroh, 128 Wn.2d 300, 310, 907 P.2d 282 (1995) (admission or exclusion of expert testimony is reviewed for abuse of discretion).

[74]    *fn12 In a footnote, Farmers lists 17 other examples where testimony was excluded. Many of these instances also involved objections based on lack of foundation. In some, the objection was sustained and in others Farmers was able to lay an adequate foundation and proceed. Because Farmers has neither specifically assigned error to each of these instances nor argued them in its brief, we decline to consider each individually. See, e.g., Valley View Indus. Park v. City of Redmond, 107 Wn.2d 621, 630, 733 P.2d 182 (1987) (a party abandons assignments of error not argued in its brief); Johnson v. Department of Licensing, 71 Wn. App. 326, 332, 858 P.2d 1112 (1993) (issues not supported by argument and specific citation to authority will not be considered).

[75]    *fn13 Houck's attorney indicated that he had relied on the admittedly inaccurate summary in preparing his case. When Houck testified during trial that Lancaster could not have had a trial in September 1994 because it was not listed on exhibit 330, Farmers impeached Houck with the litigation file.

[76]    *fn14 Windle v. Huson, 32 Wn. App. 230, 253, 646 P.2d 790, review denied, 97 Wn.2d 1026 (1982) (a trial court does not comment on the evidence when it corrects a potentially misleading inference arising from examination of a witness). Even if there had been any danger that the jury would have misinterpreted it as a comment on the evidence, the trial court instructed the jury at the conclusion of the case that it was not permitted to comment on the evidence and had not intentionally done so, and that if the jury believed that it had, it should disregard that comment. We presume the jury follows the instructions. State v. Johnson, 124 Wn.2d 57, 77, 873 P.2d 514 (1994).

[77]    *fn15 Davis v. Globe Mach. Mfg. Co., 102 Wn.2d 68, 77, 684 P.2d 692 (1984); City of Bellevue v. Kravik, 69 Wn. App. 735, 739, 850 P.2d 559 (1993).

[78]    *fn16 Burnet v. Spokane Ambulance, 131 Wn.2d 484, 496, 933 P.2d 1036 (1997) (permitting a court to remedy discovery violations by taking steps "to ensure that the wrongdoer does not profit from the wrong").

[79]    *fn17 Havens v. C&D Plastics, Inc., 124 Wn.2d 158, 165, 876 P.2d 435 (1994).

[80]    *fn18 Id.

[81]    *fn19 Id.

[82]    *fn20 Id.

[83]    *fn21 Instruction 9.

[84]    *fn22 Id.

[85]    *fn23 Instruction 14.

[86]    *fn24 See State v. Russell, 125 Wn.2d 24, 93, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129 (1995).

[87]    *fn25 Reese, 128 Wn.2d at 310.

[88]    *fn26 Bingaman v. Grays Harbor Community Hosp., 103 Wn.2d 831, 835, 699 P.2d 1230 (1985). See also Washburn v. Beatt Equip. Co., 120 Wn.2d 246, 269, 840 P.2d 860 (1992) (the determination of the amount of damages for pain and suffering is peculiarly within the province of the jury).

[89]    *fn27 116 Wn.2d 477, 805 P.2d 800 (1991).

[90]    *fn28 81 Wn. App. 1, 24, 914 P.2d 67 (1996).

[91]    *fn29 Id. at 25.

[92]    *fn30 Under CR 59(b), a party has 10 days to file a motion for a new trial.

[93]    *fn31 We agree that the comment was entirely improper because the cap on damages is not a matter for the jury. See Sasaki v. Class, 92 F.3d 232, 237 (4th Cir. 1996).

[94]    *fn32 See Russell, 125 Wn.2d at 93.

[95]    *fn33 RCW 49.60.030(2).


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