Rodriguez v. Harley Marine Servs., Inc.

CHRISTOPHER RODRIGUEZ, Appellant, v. HARLEY MARINE SERVICES, INC., OLYMPIC TUG & BARGE, INC., Respondents,andCOLUMBIA PACIFIC BIO-REFINERY, Defendant.

No. 81417-6-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

May 10, 2021

UNPUBLISHED OPINION

COBURN, J. — Christopher Rodriguez sued Harley Marine Services, Inc., and Olympic Tug & Barge, Inc. (collectively, Harley Marine) after he fell from a gangway between a Harley Marine vessel and a dock. A jury found Harley Marine negligent and awarded Rodriguez $266,000 in damages. On appeal, Rodriguez contends a new trial on damages is required due to defense counsel's misconduct and because the trial court erred by not allowing Rodriguez's surgeon to testify about Rodriguez's future work restrictions.

We hold that Rodriguez failed to preserve error with regard to defense counsel's alleged misconduct and fails to establish that he was prejudiced by the exclusion of his surgeon's testimony. Accordingly, we affirm.

BACKGROUND

In February 2018, Rodriguez began working as a petroleum gauger for Inspectorate America Corporation. A petroleum gauger inspects petroleum by taking samples to test the quality of petroleum offloaded at a terminal.

On August 15, 2018, Rodriguez was called to gauge Harley Marine's barge, the "Dr. Robert Beall," while it was tied alongside a dock on the Columbia River. Rodriguez boarded the barge by walking across a gangway between the barge and the dock. As Rodriguez walked back across the gangway after he finished gauging, the gangway fell and Rodriguez fell with it landing on a "camel log"¹ between the barge and the dock. A witness who was in the barge office at the time later testified that he heard "kind of a bang sound" and knew "[s]omething was wrong." He walked toward where the gangway had been and saw that it was no longer there. When he got to the edge of the barge, he could see Rodriguez on the camel log, and he climbed a ladder down to assist Rodriguez. He later testified that Rodriguez commented he was "more embarrassed than anything" before climbing a ladder back up to the barge.

Rodriguez later testified that after his fall, he went to the barge office to fill out his report. At the request of barge personnel, Rodriguez also wrote a summary of his fall in which he indicated he "got scraped on [his] shin and will be seeking medical attention for [his] ankle that [he] fell on." After completing his paperwork, Rodriguez drove to an urgent care facility near his home inVancouver, Washington. There, he was fitted with a walking boot and crutches.

After his initial visit with urgent care, Rodriguez saw David Allen, a physician assistant in Vancouver, on August 29, 2018. According to Allen's later testimony, Rodriguez's ankle was swollen and bruised. Allen testified that his chart notes from that examination contained no mention of a headache or concussion-like symptoms, and he noted that there was no injury to Rodriguez's head or neurological symptoms. Allen diagnosed Rodriguez with an ankle sprain and lumbar strain, and referred him to physical therapy.

Allen continued to treat Rodriguez for a number of months. Meanwhile, in October 2018, Rodriguez sued Harley Marine for negligence. Rodriguez claimed that Harley Marine's negligence caused damages including, among other things, loss of future earning capacity.

By October 10, 2018, according to Allen's chart notes, Rodriguez was showing " '80 percent improvement of the back and 65 percent improvement of the left ankle.' " According to an October 31, 2018 chart note, Rodriguez was continuing to improve, though his low back had only minimally improved since his last visit with Allen.

Allen saw Rodriguez again on November 20, 2018. Allen's chart note from that visit indicated a " 'curious presentation overall.' " Allen later testified the reason for this characterization was that "during [Rodriguez's] initial injury, the ankle was very severe in nature and the back was minimal. Then the back pain symptoms gradually increased over time." Allen referred Rodriguez to a physiatrist and recommended magnetic resonance imaging (MRI) in the future.

Allen examined Rodriguez again on December 18, 2018. In the interim, Allen had received a physical therapy report indicating that Rodriguez was able to walk for over one hour pain-free, squat and lift 50 pounds without pain, and lift and carry 50 pounds. Allen later testified that at the December 2018 visit, he and Rodriguez, who had been working in light duty jobs since August, talked about Rodriguez going back to work as a gauger. Allen also testified that Rodriguez told him he felt ready to return to work without restrictions. According to Allen's chart note, Rodriguez was still exhibiting some lumbar back pain, but Allen's objective exam revealed a normal range of motion, no tenderness, no swelling, no edema, no deformity, and no spasms. Allen noted Rodriguez was improving well with continued physical therapy. Allen later testified that with Rodriguez's recent improvements, Allen believed an MRI was no longer necessary. Allen released Rodriguez back to work, without restrictions, on a two-week trial basis, advising Rodriguez to be careful and to stop immediately if there was any return or flare-up of his low back pain.

Allen saw Rodriguez another time on January 3, 2019. Allen later testified that Rodriguez had no complaints at that time. Allen's chart note indicated that Rodriguez had soreness on his first day back at work but that he improved significantly as he continued work. Allen's note also indicated that during the two-week trial work period, Rodriguez had worked an average of 82 hours per week, and Rodriguez denied low back pain, redness, swelling, bruising, numbing, tingling, or loss of function. At that point, Allen discharged Rodriguez from his care and cleared Rodriguez for work without restrictions. According to Allen'slater testimony, Rodriguez did not complain to Allen about any neck or thoracic pain, knee injury, headaches, or head injury.

On January 28, 2019, Rodriguez saw Dr. Victoria Do, a general practitioner in Houston, Texas. Rodriguez was referred to Do by his attorney. According to Do's chart note from the visit, Rodriguez indicated he lost consciousness at the time of his August 2018 fall, and he complained of persistent headaches that had been present since the fall, pain along his whole spine, and bilateral knee pain. Do ordered a brain MRI and MRIs of Rodriguez's cervical spine, thoracic spine, lumbar spine, and knees. According to a February 6, 2019 chart note, the MRIs revealed injuries in Rodriguez's knees and left ankle, and herniated thoracic and lumbar discs. Do referred Rodriguez to Dr. Ruben Bashir, a spine surgeon also based in Houston. Do also recommended a neuropsychological evaluation.

On March 22, 2019, Rodriguez served his responses to Harley Marine's first discovery requests. One of those discovery requests asked Rodriguez to identify "each expert witness who may be used by you at trial to present evidence under ER 702, 703, or 705." It also directed Rodriguez to "for each expert disclose the following information as required by CR 26(b)(5)(A)(i): . . . the subject matter on which the expert is expected to testify, . . . the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion." Rodriguez responded, "Plaintiff will produce responsive information in accordance with the Court's scheduling order and the Washington Rules of Civil Procedure." Although the parties disagree as towhether supplementation was required, it is undisputed that Rodriguez did not, at any time before trial, supplement his discovery responses with the substance of any opinion to which Bashir was expected to testify.

On May 1, 2019, Rodriguez was evaluated by Dr. Larry Pollock, a Houston-based neuropsychologist.

On May 23, 2019, Rodriguez served a preliminary witness disclosure in which he identified a number of "non-retained medical witnesses" that "have provided care and treatment to Plaintiff." According to Rodriguez's witness disclosure, these witnesses "may provide testimony regarding Plaintiff's injuries, course of treatment, care, diagnosis, prognosis, causation, surgeries, medical costs, reasonableness and necessity of his past and future medical care, physical limitations, work/physical restrictions, causation, future prognosis, and the need for future medical care." Allen and Do were listed among these witnesses; Bashir and Pollock were not. The only medical "expert witness" listed in Rodriguez's preliminary witness disclosure was Todd Cowen, M.D., who was expected to testify about Rodriguez's "care, treatment, diagnosis, prognosis, causation, physical restrictions, reasonable costs for medical care in the past and future, and the need, if any, for future treatment."

On July 15, 2019, Rodriguez served a supplemental witness disclosure in which he added Pollock to the list of "non-retained medical witnesses."

On September 3, 2019, which was the trial court's deadline for disclosure of possible primary witnesses, Rodriguez served another "preliminary" witness disclosure. The September witness disclosure was similar to the earlierdisclosures except that instead of listing Rodriguez's treatment providers as "non-retained medical witnesses" who would testify about, among other things, causation, future medical care, physical limitations, and work/physical restrictions, it listed them under a section titled "Treatment Providers" and did not specify the nature of their expected testimony. Bashir and Pollock were both listed among Rodriguez's treatment providers as witnesses who had "personal knowledge of Christopher Rodriguez's physical state after the time of the accident." Cowen remained the only medical "expert witness" listed in the disclosure.

The deadline for disclosure of possible additional witnesses was October 14, 2019. On November 6, 2019, Bashir...