Andren v. Dake

14 Wash.App.2d 296

472 P.3d 1013

Holly ANDREN, Respondent,

v.Wayne DAKE and Jane or John "Doe" Dake, spouses, and the marital community composed thereof, Appellants.

No. 79423-0-I (consol. with No. 79585-6-I)

Court of Appeals of Washington, Division 1.

FILED September 17, 2020

Thomas George Crowell, State Farm Claims Litigation Counsel, 901 5th Ave. Ste. 830, Gregory S. Worden, Laura Hawes Young, Lewis Brisbois Bisgaard & Smith LLP, 1111 3rd Ave. Ste. 2700, Seattle, WA, for Appellants.

Laura Hawes Young, Lewis Brisbois Bisgaard & Smith, 1111 3rd Ave. Ste. 2700, Thomas George Crowell, State Farm Claims Litigation Counsel, 901 5th Ave. Ste. 830, Seattle, WA, for Petitioner(s).

Lawrence M. Kahn, Lawrence Kahn Law Group PS, 14240 Interurban Avenue, S, Ste. B132 Tukwila, WA, Kenneth Wendell Masters, Masters Law Group PLLC, 241 Madison Ave. N, Bainbridge Island, WA, for Respondent.

Dwyer, J. ¶1 After the jury returned a defense verdict in this negligence action, in which the defendant admitted liability for the motor vehicle collision at issue, the trial court granted the plaintiff's motion for a new trial, declaring that it was "in a position in which it cannot definitively state that the trial in this matter was a fair one." This appeal concerns whether the trial court's findings, which detail Dake's trial counsel¹ engaging in rampant misconduct, adequately support the order granting Andren's motion for a new trial. We affirm the new trial order because the order sets forth extensive findings regarding Dake's trial counsel's misconduct and those findings more than adequately support the order. We also affirm the trial court's award of attorney fees to Andren and award Andren attorney fees on appeal.

I

¶2 On May 11, 2016, Wayne Dake accidentally backed his truck into Holly Andren's car. After approximately a year of receiving treatment for the resulting injuries, Andren filed a lawsuit against Dake, alleging severe personal injuries due to Dake's negligence while operating his vehicle. In response, Dake admitted that he was responsible for the collision, but disputed whether the collision caused Andren's claimed injuries.

¶3 From its early stages, the litigation was highly contentious, so much so that the trial court felt it necessary to attach the Washington State Bar Association Creed of Professionalism to one order resolving a discovery dispute. Later, during a hearing in which the court considered the parties’ many motions in limine, Dake's trial counsel commented that he was seeking to defend his client "from greedy personal injury lawyers," prompting the court to explicitly warn counsel that "gratuitous comments like that" would not be tolerated in front of the jury and must "stop[ ] right now."

¶4 Dake's trial counsel's behavior, however, did not improve at trial. On multiple occasions he violated evidence rules and the trial court's prior rulings on motions in limine, made improper and gratuitous comments, and attempted to persuade the jury to reach a verdict based on improper considerations. After repeated violations of its previous orders, the trial court actually pleaded with Dake's trial counsel to stop, saying "Please, I do not—I don't want to impose sanctions and I've heard all sorts of apologies as we've gone through this, but please listen to the Court's orders."

¶5 At the conclusion of trial, the jury returned a verdict for Dake. The trial court entered judgment against Andren in the amount of $600.16 for costs. Andren then successfully moved for a new trial, asserting that Dake's counsel's misconduct had prevented her from obtaining a fair trial. The trial court agreed and entered an order granting a new trial. In support of this order, the trial court made the following findings:

During the course of the trial, defense counsel repeatedly violated Evidence Rules and the Court's rulings on Motions in Limine, including rulings on Motions in Limine presented by the defense. At least, three times, the Court admonished defense counsel because of his behavior during the trial. Warnings included references to how hard all in the courtroom had worked to get the case to trial and the possibility of a mistrial. Despite these admonitions, defense counsel persisted in improper behavior into closing arguments on October 25, 2018. In fact, the Court admonished defense counsel a final time during his closing argument because of improper arguments made when a break was taken and the jury was out of the courtroom.

Examples of misconduct in the record include, but are not limited to, the following:

Cross Examination of Dr. Frank Marinkovich

[Finding #1² ](1) During cross examination of Plaintiff's expert, Dr. Frank Marinkovich on October 18, 2018, at 10:19:39 AM, defense counsel asked "so, if the plaintiff's actual treating physician, like a treating doctor like Dr. Betteridge doesn't or isn't willing to offer an opinion, that's where you get involved, right?" This was in violation of an in limine ruling regarding the circumstances of attorney retention of expert witnesses.

[Finding #2](2) During cross examination of Plaintiff's expert Dr. Frank Marinkovich on October 18, 2018 at 10:21:11, defense counsel referred stipulated defense medical examinations as examinations "pursuant to court rules" in direct violation of a motion in limine ruling addressing how these examinations were to be referenced.

[Finding #3](3) During cross examination of Plaintiff's expert Dr. Frank Marinkovich on October 18, 2018 at 10:21:50, defense counsel improperly asked if the witness had "negative opinions" of defense doctors Klein and Jackson.

[Finding #4](4) During cross examination of Plaintiff's expert Dr. Frank Marinkovich on October 18, 2018 at 10:25:55, defense counsel improperly asked the witness if he had tried to talk with his two retained doctors, Dr. Klein and Dr. Jackson about their differing opinions about the plaintiff when he knew or, should have known, that opposing expert witnesses do not have such contact.

[Finding #5](5) During cross examination of Plaintiff's expert Dr. Frank Marinkovich on October 18, 2018, in response to a sustained objection and the Court's direction to ask another question, defense counsel responded saying something to the effect of its okay, I made my point.

[Finding #6](6) During cross examination of Plaintiff's expert Dr. Frank Marinkovich on October 18, 2018 at 11:57:31AM in responding to the witness's stating that he would be happy to review medical records defense counsel was asking about, defense counsel inappropriately and gratuitously stated, "You'll have to ask Holly Andren for that." This was an improper inference that Plaintiff Holly Andren did not provide Dr. Marinkovich with all relevant records.

Cross Examination of Plaintiff Holly Andren

[Finding #7](1) During cross examination of Plaintiff Holly Andren on October 23, 2018 at 9:23:29 AM, defense counsel inquired of Ms. Andren about a collision in 2001 or 2002 in direct violation of the Court's ruling prohibiting such an inquiry.

[Finding #8](2) During cross examination of Plaintiff Holly Andren on October 23, 2018 at 10:14:55 to 10:15 AM, defense counsel attempted to introduce into evidence a photograph of a car part from an eBay advertisement that had not been provided to plaintiff's counsel for review and without proper foundation to establish that the part shown in the photograph was actually a part that was damaged in the collision at issue. This inquiry led to Plaintiff's need to refer to car repair documentation that the Court previously ruled was not to be referenced.

[Finding #9](3) During cross examination of Plaintiff Holly Andren on October 23, 2018 at 11:43:10 AM, defense counsel inquired of Ms. Andren about medical history. In this exchange, he inappropriately and gratuitously stated, "You have a photographic memory too."

[Finding #10](4) During cross examination of Plaintiff Holly Andren on October 23, 2018 at 11:53:34 AM, defense counsel continued in inquiring of Plaintiff about whether a damaged part was steel or aluminum. She repeatedly stated that she did not even know what the part was that he was referring to. Defense counsel then improperly interjected, "You want the jury to think it is steel, right?"

Direct Examination of Dr. Steven L. Klein

[Finding #11](1) During direct examination of Defendant's expert Dr. Steven Klein on October 23, 2018 at 2:55:44 PM, defense counsel sought to inquire about mood disorder medications that had specifically been ruled as inadmissible in pretrial rulings.

[Finding #12](2) During direct examination of Defendant's expert Dr. Steven Klein on October 23, 2018 at 3:38:36 PM, defense counsel inquired about his opinions that Plaintiff did not sustain a facet joint injury in the collision at issue. In responding, Dr. Klein referenced several white papers including the Quebec Whiplash Study and a Lithuanian study which referenced "people in Lithuania where there is no concept of injury or secondary gain/whiplash." This response led to the Court's having the jury leave the courtroom to address what was a clear violation of the Court's rulings on Motions in Limine with regard to what defendant's experts could reference.

In discussing this outside the presence of the jury, defense counsel agreed at 3:44:25 PM that Dr. Klein went over something that he should not have, but indicated that he did not expect the response. Defense counsel had an obligation to apprise his witnesses of the Court's pre-trial rulings. Ultimately, the Court opted to continue with trial. When the jury returned, the Court instructed them at 3:52:45 PM as follows:

Members of the jury, there has been no evidence presented that claims were brought in this case for any improper purpose as referenced by Dr. Klein's speaking of a Lithuanian study in his recent testimony.

Defense Counsel's Closing Argument

[Finding #13](1) At 10:15:19 AM on October 25, 2018, defense counsel in closing argument stated at certain points that his client Mr.

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