Wolf v. GE Healthcare

1

BRUCE A. WOLF, as Guardian ad Litem for LANA BURKE; ZACHARY BURKE, individually, and ANNA SCOTT, individually, Respondents/Cross-Appellants, v. GE HEALTHCARE, a subsidiary of General Electric Company; GE MEDICAL SYSTEMS INFORMATION TECHNOLOGIES, INC., a foreign corporation; JEFFERSON COUNTY PUBLIC HOSPITAL DISTRICT NO. 2 d/b/a JEFFERSON HEALTHCARE and UNKNOWN DOES 1-50, Appellants/Cross-Respondents.

No. 54598-5-II

Court of Appeals of Washington, Division 2

January 4, 2022

UNPUBLISHED OPINION

MAXA P.J.

Jefferson County Public Hospital District No. 2 d/b/a Jefferson Healthcare (JHC) appeals a number of trial court decisions following a $23.9 million jury verdict against JHC in favor of Bruce Wolf as guardian ad litem for LB, Anna Scott, and Zachary Burke (collectively the Burkes). The Burkes cross-appeal the court's order to amend the judgment on the jury's verdict to provide for periodic payments of future economic damages under RCW 4.56.260. This appeal arises out of the Burkes' lawsuit alleging that JHC failed to properly monitor their baby daughter LB's heart rate during Scott's labor and delivery and that GE Healthcare's (GE) electronic fetal heart monitor was defective, causing LB to be born with severe developmental disabilities and other health conditions.

We hold that:

(1) the trial court did not err in changing venue from Jefferson County to Kitsap County;

(2) the trial court did not err in accepting the Burkes' and GE's gender-neutral reasons for using peremptory challenges on male prospective jurors and rejecting JHC's Batson^[1] challenge;

(3) the trial court did not err in denying JHC's midtrial CR 21 motion to dismiss GE based on a high-low settlement agreement between the Burkes and GE, and JHC cannot raise additional arguments regarding the high-low agreement for the first time on appeal;

(4) the trial court did not err when it precluded JHC's experts from testifying about Scott's family history of genetic abnormalities and seizure disorders and her prenatal marijuana use as possible causes of LB's conditions;

(5) the trial court did not err when it denied JHC's motion for a mistrial based on the Burkes' reference to a 2019 textbook excerpt containing LB's fetal heart strip and

(6) we decline to consider JHC's argument that the trial judge should have recused herself on the grounds that she allegedly had a special needs child in her family.

Regarding the Burkes' cross-appeal, we hold that (1) the trial court did not err in granting JHC's motion to amend the judgment on the jury verdict to provide for periodic payments of future economic damages under RCW 4.56.260, and (2) RCW 4.56.260 does not violate the Burkes' right to a jury trial, the separation of powers doctrine, or the right to equal protection.

Accordingly we affirm the trial court's original judgment on jury verdict and affirm the trial court's order granting JHC's motion to amend the judgment to provide for periodic payments of future economic damages under RCW 4.56.260.

FACTS

Background

The Burkes were expecting a baby in January 2014, with Dr. Rachel Bickling as their obstetric provider. Dr. Bickling was a doctor at JHC. The delivery occurred at JHC, a public hospital district located in Jefferson County.

JHC used GE-manufactured electronic fetal heart rate monitors to detect and follow fetal heart rates during labor and delivery. The GE monitor printed out the heartbeat it was tracing, also known as a fetal heart strip. The purpose of an electronic fetal heart rate monitor is to identify when a baby is in distress during labor. One issue that arises with fetal heart rate monitoring is whether the monitor is tracking the mother's or baby's heart rate, which is referred to as maternal heart rate and fetal heart rate confusion. If the monitor is tracking the mother's heart rate, then the person using the monitor would be unaware if the baby was in distress.

Scott's Labor and Delivery

In January 2014, Scott was admitted to JHC to give birth. She periodically was hooked up to the GE monitor, and LB had a normal fetal heart rate. Nurses monitored LB's heart rate all day. Nurse Deanna Crawford took over the monitoring that evening. The nurse ending her shift conveyed her concerns to Crawford that the GE monitor possibly was tracing Scott's heartbeat rather than LB's. Crawford testified that she believed that she was monitoring LB's heart rate the entire time before delivery.

When LB was delivered, she was purple and limp. She began experiencing seizures within 12 or 13 hours of being born. While LB still was inside the womb, the umbilical cord had been wrapped around LB's neck, which slowed down her heart rate and decreased the amount of blood flow and oxygenation to her brain. The umbilical cord ultimately caused decreased oxygenation and blood flow to the tissues in LB's body, including her brain.

At the time of trial, LB was almost six years old, but had the mental age of a 12- to 18-month-old. LB had significant developmental and neurological deficits. LB experienced a seizure every few months, which manifested in convulsive activity that lasted between five and 20 minutes. She also suffered spastic quadriplegic cerebral palsy. LB will require 24/7 adult supervision and care for the rest of her life. Burkes' Lawsuit

In October 2016, the Burkes filed a lawsuit against JHC for medical negligence and against GE for product liability in Jefferson County Superior Court. The Burkes alleged that JHC improperly monitored Scott and LB and that GE's monitor mistakenly recorded Scott's heart rate instead of LB's. JHC asserted in its answer an affirmative defense of third-party liability, reserving its right to apportion a percentage of liability to GE.

JHC's answer also provided notice of its intent to request periodic payments under RCW 4.56.260 for any award of future economic damages. JHC later referenced the intent to invoke RCW 4.56.260 in answers to discovery requests.

The case ultimately was assigned to a visiting judge from Kitsap County.

High-Low Agreement with GE

In August 2018, the Burkes and GE entered into a proposed high-low agreement, contingent on trial court approval. Under the proposed agreement, GE would owe the Burkes $1 million if the percentage of fault allocated to GE was 10 percent or less, and GE would owe no more than $5 million if the jury found that GE was between 10 percent and 100 percent at fault. If GE was allocated a percentage of fault between 10 percent and 100 percent, it would pay proportionally up to the $5 million maximum. In addition, the agreement stated that GE "will get a credit or offset of up to $500, 000 for any funds paid on behalf of [JHC] that will be applied to satisfy GE Healthcare's obligations under this Proposal." Clerk's Papers (CP) at 3979. The agreement did not release GE from liability.

The Burkes and GE filed a joint motion requesting that the trial court make a finding that the agreement was reasonable under RCW 4.22.060(1). The motion explained that the proposed high-low agreement would "provide [GE] the ability to defend itself and its product at trial with the security of capping its potential risk and exposure, while providing [the Burkes] a certain minimal recovery to help offset their medical and other bills, expenses and damages, while preserving joint and several liability." CP at 3967. The motion also requested that the trial court issue an order in limine barring any references to the high-low agreement at trial. The Burkes and GE represented that the motion was unopposed.

At the reasonableness hearing on the high-low agreement, JHC stated that it did not oppose the motion, noting that the Supreme Court in Barton^[2] had approved of such high-low agreements. JHC did not argue that the agreement violated public policy or otherwise was improper. The trial court found that there was no evidence of bad faith, collusion, or fraud and found that the high-low agreement was reasonable. The court also concluded that the settlement did not release GE from liability.

In addition, the court granted the motion in limine to exclude references to the high-low agreement. JHC did not object to this in limine order.

Burkes' Motion to Exclude Expert Testimony

The Burkes filed a motion for partial summary judgment to dismiss JHC's affirmative defenses of preexisting conditions and comparative fault. JHC withdrew the affirmative defenses, and the trial court dismissed them.

In the same motion, the Burkes moved to exclude JHC's proffered expert testimony referencing (1) Scott's congenital family history of mental disability or seizures and (2) Scott's marijuana use before or after LB's birth.

JHC had disclosed two expert witnesses, Dr. Thomas Wiswell and Dr Paul Fisher, to provide expert testimony regarding the issue of causation and to rebut the opinions of the Burkes' experts. JHC opposed the motion, and submitted declarations from Dr. Wiswell. The parties also submitted excerpts from the depositions of the two experts.

Dr Wiswell was board certified in pediatrics and perinatal-neonatal medicine. He stated an opinion on a more probable than not basis that LB's brain injuries were caused by fetal inflammatory response syndrome and that LB's organ damage occurred before Scott went into labor.

In his declaration, Dr. Wiswell stated that LB's injuries could have been caused by Scott's marijuana use during pregnancy, a family history of Scott's mother, Donna Scott, ^[3] having a seizure disorder, and a family history of multiple male family members having genetic abnormalities.

In his deposition, Dr. Wiswell stated that "it's a possibility" but not "more probably than not" that LB's deficits were related to Donna's seizure disorder, and that marijuana...