Wiedemann v. Keller

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VICTOR L. WIEDEMANN SR., a single person, Appellant, v. DAVID A. KELLER, D.D.S., P.L.L.C., a Washington Corporation; and DAVIS A. KELLER, D.D.S., individually, Respondents.

No. 57650-3-II

Court of Appeals of Washington, Division 2

January 23, 2024

UNPUBLISHED OPINION

CRUSER A.C.J.

Victor Wiedemann was born with a cleft palate that caused various dental problems, and as a result, he wore a partial denture for many years. But when he lost the remaining teeth on his upper jaw, he could no longer use a partial denture because no teeth remained to anchor it in place. Wiedemann visited various dentists to consult about dental implants and eventually chose to pursue mini-implants to save money compared to conventional implants. He visited Dr. Keller, who prepared a treatment plan consisting of extractions mini-implants, a temporary denture, and a final denture. Wiedemann wished to use money held in trust to pay for the treatment, so Dr. Keller sent the treatment plan to the trustees. The trustees approved payment for the plan, which was to cost $14,944.

After this approval, Dr. Keller's office manager, Lisa Pirello sent the trustees a second treatment plan consisting of extractions, mini-implants, prosthetics, and crowns. It would cost $22,000. The trust asked Pirello to explain the price increase and she told them that the first treatment plan was erroneous. The trust approved payment for the second treatment plan, despite the fact that Wiedemann had never discussed the new plan with Dr. Keller himself and that crowns were incompatible with Wiedemann's other dental work. Wiedemann underwent surgery with Dr. Keller where extractions and mini-implants were performed, but no crowns were placed, and he was given a denture. Wiedemann was unhappy with the quality of the work.

Wiedemann brought two claims against Dr. Keller: a Consumer Protection Act (CPA) claim for overbilling in the amount of $7,056 for his mini-implant services and a malpractice claim for substandard treatment and failure to obtain informed consent. Dr. Keller moved for partial summary judgment, arguing that the CPA claim should be dismissed because Wiedemann's claim was essentially a private contract dispute and did not create genuine issues of material fact as to the essential elements of a CPA claim. Dr. Keller's motion conceived of the CPA claim as it was pled: a pure overbilling issue. In response, Wiedemann argued additional CPA theories, including that Dr. Keller delivered "worthless services." Clerk's Papers (CP) at 144. The court expressed that it was not inclined to entertain the novel theories because Dr Keller did not have fair notice of them prior to submitting his motion for summary judgment. Wiedemann expressed a desire to amend his complaint but did not make a formal motion to do so and did not present a copy of his proposed amended pleading. Wiedemann further argued that Dr. Keller impliedly consented to one of his novel theories by putting forth evidence that he considered his services "worthless." Verbatim Rep. of Proc. (VRP) at 12. The court made no formal ruling on whether it would permit Wiedemann to amend his complaint and did not clarify which CPA theories it considered when it ultimately granted Dr Keller's motion and dismissed the CPA claim.

After the CPA claim was dismissed, the parties prepared for trial and the court granted a number of Dr. Keller's motions in limine. Specifically, it granted Dr. Keller's motion to exclude evidence of the second treatment plan in the amount of $22,000 because that plan was not relevant to the malpractice claims. It also granted Dr. Keller's motion to exclude opinion and character testimony by Pirello and dental assistant Miji Hubert,^[1] but provided that these witnesses could be called for fact testimony subject to an offer of proof. It also granted Dr. Keller's motion to exclude evidence of prior patients, lawsuits, and disciplinary actions against Dr. Keller and against expert witnesses. It did not foreclose, however, that this evidence could be introduced if the door was opened to it during trial.

The case proceeded to a jury trial. After Wiedemann rested his case, having offered expert testimony that did not include an exact estimate of the cost of remediation, Dr. Keller moved for a directed verdict on the issue of economic damages. The court granted the motion, leaving the issues of liability and non-economic damages for the jury to decide. Dr. Keller put forth his defense, and Wiedemann asked to testify in rebuttal. The court denied this request, finding that Wiedemann was not offering proper rebuttal evidence but rather sought to rehash his prior testimony. Ultimately, the jury returned a verdict for Dr. Keller.

Wiedemann now appeals, arguing that the court erred in (1) granting partial summary judgment and dismissing the CPA claim; (2) granting Dr. Keller's motions in limine to exclude (a) evidence of Pirello's second treatment plan; (b) opinion and character testimony by Pirello and Hubert; (c) evidence of Dr. Keller's prior patients, lawsuits, and disciplinary actions; (d) evidence of the prior patients, lawsuits, and disciplinary actions against expert witnesses; (3) granting Dr. Keller's CR 50 motion for a directed verdict as to economic damages; and (4) denying Wiedemann's request to rebut Dr. Keller's testimony.

We hold that Wiedemann is not entitled to relief. The trial court did not err in dismissing Wiedemann's CPA claim at summary judgment because Wiedemann failed to present evidence showing that Dr. Keller committed an unfair or deceptive act. Furthermore, Wiedemann has made no attempt to show that any of the excluded evidence, including his rebuttal testimony, would have materially affected the outcome of the trial; absent this showing of prejudice, any error in the trial court's evidentiary rulings is not a reversible error. We affirm the trial court.

FACTS

I. Pre-Litigation Events

Victor Wiedemann was born September 14, 1949, with a cleft palate that required multiple surgeries and led to dental complications throughout his life. After losing four teeth in the 1970s, Wiedemann used a partial denture that relied on the strength of surrounding teeth to stay in place. In 2015 or 2016, the remaining teeth in Wiedemann's upper jaw failed, and as a result, Wiedemann could no longer use a partial denture because he had no remaining anchor teeth. He was in "misery" because he could not chew food. VRP at 352. Wiedemann sought treatment options from four or five dentists and compared prices. Wiedemann chose to pursue mini-implants because he wanted to save money compared to conventional implants.

Wiedemann consulted Dr. Keller in February 2016, and ultimately decided to undergo mini-implant surgery with Dr. Keller. His treatment was to be paid by the Judith M. Logan Living Trust, a trust created by Wiedemann's mother to disburse an inheritance to her three children. Dr. Keller drafted a letter of medical necessity, a cost estimate, and a treatment plan and sent them to the trustees, Eric Ortner and Jeremy Wiedemann, for approval. The letter explained that the overall goal was to place implants that would serve to anchor a future prosthetic such as a denture or bridge. It outlined two phases of treatment. First, Dr. Keller would remove Wiedemann's six remaining teeth, place six mini-implants, and place a temporary denture for use while Wiedemann's extraction sites healed; second, three to four months later, Dr. Keller would place three more mini-implants and a final denture. The quoted price was $14,944. The trustees approved this treatment plan on June 16, 2016, and authorized a disbursement of $15,000.^[2]

Sometime after the first treatment plan was approved, a second treatment plan was sent to the trustees. The second treatment plan, apparently created using medical billing software, proposed the same treatment as the first plan, with the addition of twelve crowns. The second treatment plan quoted a total price of $29,215 with a handwritten note saying, "I can discount to [$]22,000." CP at 23. Lisa Pirello, Dr. Keller's office manager, told the trustees that the original $14,944 treatment plan was erroneous, and the trust then approved the $22,000 payment. The trustees approved payment for the $22,000 plan on July 22, 2016.

Wiedemann saw Dr. Keller for his mini-implant surgery on August 25, 2016. He received a local anesthetic and Dr. Keller extracted six teeth. Dr. Keller then placed seven mini-implants and provided an immediate^[3] denture. Dr. Keller provided follow up care to adjust the immediate denture as needed. Wiedemann received his final denture in November 2016. Then, in February 2017, Wiedemann returned to Dr. Keller's office because his denture broke. It broke four more times between February 2017 and May 2018. The first three times it broke, Dr. Keller repaired the denture. But eventually, Wiedemann decided to repair it himself to save money. Wiedemann has trouble eating due to the state of the denture and has become increasingly angry and frustrated.

In addition to the breakage of his denture, Wiedemann complains that two or three of his mini-implants fell out. He did not see any dentist for any upper jaw evaluation or repair after he stopped seeing Dr. Keller.

II. Litigation

Wiedemann sued Dr. Keller for violating the CPA by overcharging him for mini-implants in the amount of $7,056, the difference in price between the first and second treatment plans. Wiedemann's complaint described his CPA claim as follows:

That the actions of Dr. Keller and David A. Keller, D.D.S., P.L.L.C., d/b/a Granite Dental, in unilaterally changing the agreed price to be charged to the trust benefitting Mr. Wiedemann has damaged Mr. Wiedemann in the amount of

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