HUNT, J.
¶ 1 Falina Hickok-Knight appeals the jury's $6,433.35 award to her of damages against Wal-Mart Stores, Inc., the trial court's $5,526.17 costs award to Wal-Mart (based on her damages award being less than Wal-Mart's settlement offer), and the trial court's denial of her motion for a new trial. Hickok-Knight argues that the trial court (1)
¶ 2 After shopping at a Wal-Mart Store on June 24, 2006, Falina Hickok-Knight was returning her shopping cart in the parking lot when a forklift driven by a Wal-Mart employee collided with a row of other shopping carts that hit Hickok-Knight's cart, causing it to hit, run over, and stop on top of the middle of her left foot. She limped back to her car, called Wal-Mart to report the incident and spoke with an assistant manager, drove to her parents' house, iced her foot, and then drove with her father back to Wal-Mart, where they spoke with a manager and filled out a "customer incident statement," I Verbatim Report of Proceedings (VRP) at 278; Ex. 61. Hickok-Knight did not seek medical attention that day.
¶ 3 The next day, Hickok-Knight went to an emergency room and had her foot x-rayed; the results were "normal" and showed no fracture. II VRP at 284-85. Her medical records showed that she had "minimal swelling" and "no discoloration."
¶ 4 The next month, Hickok-Knight underwent physical therapy. At some point, she also underwent magnetic resonance imaging (MRI), the results of which were "normal." VII VRP at 1191. On September 22, she again saw Dr. Smith, who "found that there was no swelling, no redness, [and] no skin changes" and opined that Hickok-Knight "had idiopathic foot pain," which, according to Hickok-Knight, meant that Dr. Smith "didn't know what was the matter." VII VRP at 1193.
¶ 5 In October, Dr. Smith referred Hickok-Knight to Dr. David Judish, who took a "long history" from Hickok-Knight, conducted an "[electromyogram] and nerve conduction studies," diagnosed her with depression, and prescribed an anti-depressant. II VRP at 316-17. Dr. Judish also noticed that when Hickok-Knight was distracted, she did not react when he touched her injured foot; he ruled out a diagnosis of complex regional pain syndrome (CRPS).
¶ 6 Before injuring her foot, Hickok-Knight had worked (1) as a sales clerk at Benjamin Franklin for two months in 2001; (2) in a Wal-Mart position from May 2003 through September 2005 at $10.29 an hour; and (3) as a dental assistant from September 2005 to April 2006 at $12.00 an hour, from which she was fired, two months before her foot injury.
¶ 7 Hickok-Knight returned to the workforce around the time that she stopped seeing care providers about her foot. From October 2006 to April 2007, she worked for a jewelry retailer, where she sometimes used a cane and sat down frequently. Hickok-Knight left her jewelry retailer job to work as a dental assistant for a different dental office for three months until she was terminated (because "[a]fter 3 month[s] of train[ing], [Hickok-Knight] was not understanding full [patient] care. Her chart notes were very unclear."). Ex. 60. In August 2007, she returned to work for the same jewelry retailer, where she used a cane and sat down frequently. In March 2008, Hickok-Knight again stopped working for the jewelry retailer. After that, she did not return to the workforce.
¶ 8 After filing her lawsuit, Hickok-Knight returned to her podiatrist, Dr. Smith, complaining about pain in her left foot. Dr. Smith, however, (1) "said there was no redness or temperature changes, no skin or nail changes, no swelling," (2) opined that Hickok-Knight possibly was suffering from CRPS, (3) advised her to research CRPS on the internet, (4) referred her for a three-phase bone scan, and (5) referred her to Dr. Long Vu, an osteopathic doctor. II VRP at 338; 3 VRP at 411, 413; 7 VRP at 1205. Hickok-Knight's December 2007 three-phase bone scan indicated "[m]inimally decreased blood flow of perfusion to the left foot compared to the right is suggestive of [CRPS]." III VRP at 428; VII VRP at 1201-02; Ex. 8.
¶ 9 When Hickok-Knight saw Dr. Vu for the first time on February 2, 2008, she complained about pain spreading up her leg to her groin and constant aching, burning, throbbing, shooting, and sharp pain. Dr. Vu (1) observed some discoloration on Hickok-Knight's left foot, as well as allodynia;
¶ 10 On February 13, Dr. Vu performed on Hickok-Knight a "sympathetic block," which applied local anesthetic to nerves through a spinal injection and "worked to increase blood flow to the ... foot." III VRP at 439. At first, there was "significant pain relief," but the effects "slowly wore off." III VRP at 440, 442. On February 21, Hickok-Knight returned for a second sympathetic
¶ 11 A few weeks later, on March 28, Hickok-Knight saw Dr. Linda Wray, a neurologist whom Wal-Mart hired to conduct an independent medical examination of Hickok-Knight. Hickok-Knight complained to Dr. Wray about "a lot of pain and all kinds of problems," displayed "very dramatic limp," and "would barely put her left foot down on the floor" or "bear weight on it" V VRP at 736; VII VRP at 1208. After completing the examination, Dr. Wray concluded that Hickok-Knight did not suffer from CRPS.
¶ 12 Two months after Dr. Wray's examination, on June 2, Wal-Mart's surveillance video showed Hickok-Knight filling up her vehicle with gas without any apparent impairment to her walking. Similarly, a June 14 surveillance video
¶ 13 On September 30, Dr. Vu discussed these surveillance videos with Hickok-Knight. Based on these videos, Dr. Vu did not want to proceed with a "spinal cord stimulator trial", which would have involved threading an electrode wire into her spinal column and connecting the wire to a box that Hickok-Knight would have worn outside her body to provide electrical stimulation to her spinal cord. VIII VRP at 1221. Instead, Dr. Vu encouraged Hickok-Knight to follow up with a pain clinic. Instead of attending a pain clinic, however, Hickok-Knight returned to Dr. Vu a month later, on November 5, continuing to complain about pain in her left foot. After this appointment, Dr. Vu noted, "Though [Hickok-Knight] has ... hypersensitivity to exam, she does not meet other criteria for CRPS." Ex. 57. Dr. Vu again suggested that Hickok-Knight follow up at a pain clinic.
¶ 14 In December, Dr. Frederick Silver, a psychologist at the Franciscan Chronic Pain Management to which Dr. Vu had referred Hickok-Knight, evaluated her preadmission. Dr. Silver's "[d]iagnostic impression" was that Hickok-Knight suffered from "[p]ain disorder with depression, anxiety and [CRPS]" and "[a]djustment disorder with mixed anxiety and depressed mood versus dysthymic disorder."
¶ 15 In May, Dr. Vu asked Dr. Silver to perform a follow-up "psychological analysis" of Hickok-Knight to determine whether she was a candidate for a spinal cord stimulator trial. VII VRP at 1093. Dr. Silver "thought" that Hickok-Knight "could cope with the procedure" but "that her depression should be addressed to maximize the outcome of the stimulator trial." VII VRP at 1093-94.
¶ 17 Eight months later, on March 31, 2010, Hickok-Knight underwent the spinal cord stimulator trial. The stimulator trial failed, medically speaking, because Hickok-Knight asserted that it did not provide enough pain relief.
¶ 18 Hickok-Knight sued Wal-Mart, asserting that (1) a Wal-Mart employee, acting within the scope of employment, had "negligently performed his duties and as a result, caused a serious injury to the plaintiff"; and (2) Wal-Mart had negligently trained and supervised that employee, and "was otherwise negligent in the operation of the store." Clerk's Papers (CP) at 1-2. Hickok-Knight sought damages for medical expenses, income loss, and pain and suffering.
¶ 19 The superior court granted Hickok-Knight's partial summary judgment motion, concluding that (1) Wal-Mart was liable for the June 24, 2006 incident; (2) there was no comparative fault by Hickok-Knight; and (3) "the sole issue at trial will be the causation, nature and extent of plaintiff's injuries and damages." CP at 18. In October 2009, Wal-Mart made an offer of judgment to Hickok-Knight for $30,000. Refusing the offer, Hickok-Knight elected to go to trial.
¶ 20 In a pretrial hearing on April 12, 2010, Wal-Mart argued that Hickok-Knight's medical and social histories were relevant and therefore, admissible, to show that "she does not have RSD or [CRPS]" and that "[e]ither there's something going on psychologically or she's faking it."
¶ 21 Further elaborating on its ruling, the trial court explained that the jury had to make only one of two findings: (1) either Hickok-Knight "matches the criteria" for CRPS; or (2) "she doesn't match it." I VRP at 13. Wal-Mart argued that the jury could make a third finding — that Hickok-Knight believes she suffers from the injury, but that her injury is "psychosomatic," namely that she suffers "distress and emotional pain" but "report[s] it as physical pain." I VRP at 24. The trial court rejected this argument, stating, "[L]egally in this case, [the jury] either find[s] it's a valid condition and she has it or that she doesn't; and why she doesn't, the jury isn't going to care about that." I VRP at 24.
¶ 22 Hickok-Knight's sister, Marcia Hickok-Ritchie,
¶ 23 Hickok-Knight testified that (1) her pain was "constant" and "shooting" and "tingling in the left foot that travels through [her] leg and into [her] buttocks"; (2) she would experience "burning sensations in [her] foot" and sometimes would be "completely immobilize[d]"; and (3) her foot had started to change color that morning, the second day of her direct examination. II VRP at 189, 212. Hickok-Knight's counsel asked the trial court for permission "to show the jury [Hickok-Knight's injured] foot compared to her other foot; so [it] could look at it and actually see what's happening." II VRP at 212. The trial court agreed and ordered the jury to walk over to Hickok-Knight to look at her feet. The jury then visually examined Hickok-Knight's left foot.
¶ 24 When direct examination resumed, Hickok-Knight testified that (1) after the injury, her left foot "went really cold" and "was like ice always"; (2) the nerve ablation procedure that Dr. Vu performed in March 2008 had "brought back heat" to her left foot; but (3) since then, "the cold has returned; but it's not constant like it was before. It is off and on." II VRP at 233. Hickok-Knight's counsel then asked, "[J]ust as you've been sitting here, has your foot color changed? Is it getting more pronounced?" Hickok-Knight replied, "Yes. I believe it is." II VRP at 250. When counsel asked her to describe the progression of the change in her foot color, Hickok-Knight replied:
II VRP at 250-51.
¶ 25 Wal-Mart asked to voir dire Hickok-Knight about her foot's color change, stating, "I'd like to ask her some questions. I'd like the jury to look at her foot to see if they see the change" since the jury's previous visual inspection that had occurred minutes earlier. II VRP at 251. The trial court responded, "Well, ultimately, it is [a] jury question as to whether or not the foot is colored or changing; so if you feel, based on this testimony, that they need to take a look at the foot as it is right now, then we'll do that." II VRP at 251. When a juror asked, "Can I touch those feet if I want?" the trial court replied, "Well, we'll take that up after the morning recess." II VRP at 251-52.
¶ 26 After recess, outside the jury's presence, the trial court stated, "[T]here's testimony that if there's different temperatures between the feet, I assume that [the juror] wants to see that for herself." II VRP at 251-52. Hickok-Knight replied:
II VRP at 253. The trial court stated, "Well, they all [the jurors] may wish to touch it." II VRP at 253. Hickok-Knight's counsel responded, "Well, I don't know that I want all of them touching her. Okay. I don't think that's appropriate." II VRP at 253.
¶ 27 The trial court stated, "Juror No. 7 has an interest because of the testimony regarding temperature differences. I mean, it's an issue." II VRP at 253. Hickok-Knight replied:
II VRP at 253-54.
¶ 28 The trial court ruled:
II VRP at 256.
¶ 29 Hickok-Knight further argued:
II VRP at 257. The trial court agreed, ruling, "[I]t will have to be all the jurors." II VRP at 257.
¶ 30 Then trial court then clarified that it would instruct the jurors to "lightly place their hands on top of the foot and the other foot" and not to "grab," to "squeeze," or to "press" Hickok-Knight's foot. II VRP at 258. Hickok-Knight's counsel reiterated his objection, to which the trial court stated:
II VRP at 259.
¶ 31 Hickok-Knight's counsel asked the trial court, "[H]ow do we handle my client's pain if she is in pain or if somebody touches it too hard? Do we stop, or do we just keep going?" II VRP at 259. The trial court reiterated that it would instruct the jury not to grab, to squeeze, to press, or to hold the foot, and stated, "I don't think that the jury is going to be doing anything; and, you know, if there's pain, you know, we'll deal with it." II VRP at 259. The trial court then instructed the jury to touch Hickok-Knight's feet. Hickok-Knight later testified that the jury's touching her left foot "was like a knife being dr[iven] through [her] foot." II VRP at 268.
¶ 32 Dr. Vu, Hickok-Knight's treating osteopathic doctor, testified as an expert witness substantially as set forth in the previous section of this opinion. During his testimony, Hickok-Knight's counsel interjected, "[R]ecently, my client was ordered to submit to touching by the jury, albeit light touch. Of course, the jury didn't know what the situation was; and they touched my client's feet." III VRP at 421. Wal-Mart objected. After excusing the jury, the trial court asked Hickok-Knight, "Counsel, where are we going with this?" Hickok-Knight replied, "Well, I want the jury to understand that when my client reacted the way she did, there was a reason for it. It's very simple." III VRP at 422. The trial court responded:
III VRP at 422.
¶ 33 Subsequently, in response to Hickok-Knight asking Dr. Vu what, "on a more probable than not basis," caused Hickok-Knight's CRPS, Dr. Vu replied, "[T]he initial injury," and that he did not have "any documentation that there was chronic pain before this incident." III VRP at 459. Dr. Vu also testified, however, that (1) he performed the sympathetic blocks and radio ablation intervention techniques in February and March 2008, before he saw Wal-Mart's June and July 2008 surveillance videos of Hickok-Knight; and (2) he would not have performed these intervention techniques if he had seen such videos beforehand because in the videos, Hickok-Knight appeared to have "a high enough level of function" that the risks involved with the intervention techniques would have outweighed the potential gains. III VRP at 477-78.
¶ 34 Hickok-Knight called a vocational rehabilitation expert and an economist to prove the economic loss from her foot injury. The vocational rehabilitation expert testified that Hickok-Knight would be unable to work as a dental assistant because of the "continuous standing" involved, so the only position she could hold would be an "office-type job." VRP (Apr. 15, 19, 2010) at 10. The vocational rehabilitation expert opined, however, that Hickok-Knight lacked the requisite skills for an office job.
¶ 35 Based on the vocational rehabilitation expert's assessment of Hickok-Knight's ability to work, the economist testified that $233,852 represented the amount of lifetime earning capacity that Hickok-Knight would lose if she could work only as a medical office assistant instead of as a dental assistant. The economist also explained that if Hickok-Knight were totally unemployable and unable to perform household services, then $1,372,118 represented her loss of earning capacity and her cost of household services.
¶ 36 Before Hickok-Knight called her next expert witness, Dr. John Loeser, Wal-Mart again argued for admission of her medical and social histories because Wal-Mart's theory of the case was that Hickok-Knight has "psychosomatic problems." IV VRP at 508. Hickok-Knight objected.
¶ 37 Reversing its pretrial ruling, the trial court concluded:
IV VRP at 527-28.
¶ 38 Hickok-Knight responded, "Well, I've already told you that based on your [pretrial] rulings here [that excluded evidence of Hickok-Knight's medical and social histories], I've already told [Dr. Loeser] not to talk about any of that." IV VRP at 529. Hickok-Knight then conferred with Dr. Loeser and informed the trial court, "[A]ctually, I was wrong. Dr. Loeser, I believe, did see all [of Hickok-Knight's] medical records. We did send him everything [we] received, so he looked at them." IV VRP at 529.
¶ 40 On cross-examination, Dr. Loeser testified that treating a patient involves obtaining the patient's medical history and, consequently, he agreed that it was "valuable" to look at Hickok-Knight's medical history. IV VRP at 595-96, 598. Using Dr. Hamm's report, Wal-Mart asked Dr. Loeser questions about Hickok-Knight's history: For example, Wal-Mart asked whether he was aware that (1) Hickok-Knight had supposedly feigned seizures when she was 12 years old; and (2) when she was 15 years old, she had complained of "fe[eling] like her kneecap popped out" but that a subsequent examination revealed no injury. IV VRP at 596-97. Dr. Loeser stated that he was aware of this part of Hickok-Knight's medical history. Hickok-Knight objected during this line of questioning, but the trial court disagreed, ruling, "Well, it's a medical record that was reviewed; and to the extent that he reviewed it, you can ask him questions regarding it." IV VRP at 598. Wal-Mart then asked Dr. Loeser whether he was aware that "since she was 18 years old, [Hickok-Knight had] visited the emergency room six times." IV VRP at 599. Dr. Loeser testified that he was also aware of this.
¶ 41 Wal-Mart's expert neurologist witness, Dr. Wray, testified that she had reviewed Hickok-Knight's recent medical records, interviewed Hickok-Knight, had taken "a general medical history in terms of other illnesses and injuries she might have had," and had "carried out a detailed neurologic exam." V VRP at 706-07. Dr. Wray testified that, based on a "reasonable degree of medical probability," (1) her medical opinion was that "Hickok-Knight suffered a minor bruise to her foot as a result of the shopping cart rolling over it at Wal-Mart, that that had healed, and that there was no diagnosable condition after that"; (2) "[she] did not feel that [Hickok-Knight] fit the criteria for a diagnosis of CRPS, and [her] opinion is that that condition is fairly controversial and unclear in any case"; (3) she did not see "any physical basis or objective basis to say that [Hickok-Knight] is not able to work"; and (4) Hickok-Knight should in fact return to work because "[r]eturning to normal daily activities, including work, is a very important part of rehabilitating and recovering from injuries of various types, including chronic pain conditions." V VRP at 707-08, 752.
¶ 42 Wal-Mart's expert psychiatric witness, Dr. Hamm, testified that he had conducted a "records review" of Hickok-Knight's medical records from when she was "about age ten or so, onwards through more recently, 2010." V VRP at 867. Dr. Hamm had also reviewed Hickok-Knight's 2006 deposition testimony and Dr. Silver's "psychological records ... and his testing" of Hickok-Knight from her time at the pain clinic. V VRP at 867. Dr. Hamm explained that
¶ 43 Dr. Hamm testified that he had diagnosed Hickok-Knight with "somatoform pain disorder," also known as "pain disorder [with] psychological factors." VI VRP at 868. He explained:
V VRP at 868. Dr. Hamm further explained that "a lot of factors" went into that diagnosis, including "her life history" and "medical history":
VI VRP at 889-90.
¶ 44 Dr. Hamm then testified about "chronologically, some of the things that [Hickok-Knight's] had since childhood": (1) When Hickok-Knight was 10 years old, she had complained of back pain, went to the hospital, and "there[] [was not] that much wrong with her" her response was "dramatic"; (2) Hickok-Knight had "responded in an excessive way" to some illnesses; (3) Hickok-Knight had dyslexia in grade school and "kids were mean to her"; (4) Hickok-Knight had "fake[d]" a seizure when she was 12 years old because she "didn't want to go to school"; (5) Hickok-Knight was raped when she was 13; (6) in her adolescence, Hickok-Knight had experienced "menstrual irregularities" and "abdominal discomfort," and was diagnosed with a "possible ovarian cyst"; and (7) after learning that a friend's mother had meningitis, Hickok-Knight had gone to the emergency room because she was worried that she, too, had meningitis. VI VRP at 896-900.
¶ 45 When Wal-Mart asked Dr. Hamm to consider "another hypothetical based on preexisting interactions with the health care system:"
VI VRP at 901-03. Dr. Hamm replied, "[T]hat's representative of somebody who does overrespond to sensations in their body. [T]hese are the kind[s] of things in the background of this woman that would support my diagnosis of pain disorder." VI VRP at 903. Dr. Hamm further testified that Hickok-Knight "has a psychological borne problem" and is "fully capable of work[ing]." VI VRP at 931-32.
¶ 46 Dr. Silver, the pain clinic's psychologist and Hickok-Knight's expert witness, opined that Hickok-Knight's social history was "significant" because "the extent of someone's stress and their coping skills affects how vulnerable they are to pain and affects their ability to adjust and cope with pain." VII VRP at 1168. Dr. Silver also agreed that it is "very important" to learn about Hickok-Knight's "psychological, traumatic life experiences that have impacted" her. 7 VRP at 1119. Dr. Silver then explained that Dr. Hamm's diagnosis of "pain disorder with ... psychological factors" was caused by "her injury and the pain that she experienced afterwards and the [CRPS] or, you know, whatever pain syndrome ends up being diagnosed." VI VRP at 886; VII VRP at 1110.
¶ 47 Hickok-Knight proposed the following jury instruction on damages:
CP at 459 (emphasis added).
¶ 48 Wal-Mart submitted a different jury instruction on damages:
CP at 349. Wal-Mart explained, "We ... took out earning capacity in the past. I think the definition of earning capacity — isn't that carried forward, so should it just be the reasonable value of earnings lost at the present time?" X VRP at 1566.
¶ 49 Hickok-Knight responded:
X VRP at 1610-11. Agreeing with Wal-Mart, the trial court gave its proposed instruction.
¶ 50 Hickok-Knight also requested jury instructions on susceptibility and "lighting up." CP at 454. Although Wal-Mart submitted an aggravation instruction, it argued,
X VRP at 1586. Hickok-Knight argued that the trial court should give the jury both the susceptibility and the aggravation instructions.
¶ 51 Disagreeing with Hickok-Knight, the trial court ruled:
X VRP at 1587-88. The trial court further clarified that it refused to give the "susceptibility" jury instruction because "[t]here is no testimony on that" either. X VRP at 1588.
¶ 52 After more than three weeks of trial, the jury unanimously awarded Hickok-Knight $6,433.35 in damages ($5,433.35 in past economic damages and $1,000.00 for past and future non-economic damages). Because Hickok-Knight had declined Wal-Mart's $30,000.00 offer of judgment, which had been greater than the jury's verdict, Wal-Mart considered itself the prevailing party and submitted a cost bill for $5,526.17 under RCW 4.84.010.
¶ 53 At the hearing to determine costs, the trial court considered CR 68's language: "If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer." (Emphasis added.) RCW 4.84.010(5)'s apparently conflicting language provides to the "prevailing party":
Wal-Mart argued that it did not incur the costs of obtaining medical records and conducting depositions until trial. Hickok-Knight contended that the trial court should not award Wal-Mart those costs because Wal-Mart had incurred them before trial and before Hickok-Knight rejected the offer of judgment. Agreeing with Wal-Mart, the trial court awarded it $5,526.17 in costs, primarily comprising costs from deposing witnesses in 2008 and the first half of 2009. After subtracting these costs awarded to Wal-Mart, the total net judgment in favor of Hickok-Knight was $907.18.
¶ 54 Hickok-Knight moved for a new trial, arguing that the trial court had erred by ordering the "touching of the feet by the
CP at 536-37.
¶ 55 Describing the presiding juror's declaration as "vague" and noting that the jury verdict was unanimous, the trial court denied Hickok-Knight's motion. X VRP at 1632-33. The trial court further noted:
X VRP at 1633-34.
¶ 56 Hickok-Knight appeals the jury's damages award, the trial court's award of costs to Wal-Mart, and the trial court's denial of her motion for a new trial.
¶ 57 Hickok-Knight first argues that the trial court's ordering the jury to touch her feet was reversible error because it was "a glaring comment on the evidence" and amounted to a prejudicial "demonstration or experiment." Br. of Appellant at 36. We disagree that the foot-touching order was a comment on the evidence; but, even assuming, without deciding, that it was an erroneous demonstration, the error was harmless.
¶ 58 Hickok-Knight asserts that the trial court's foot-touching order "conveyed to the jury the court's lack of confidence in the integrity of [Hickok-Knight]'s testimony" about the temperature of her foot and "was a glaring comment on the evidence." Br. of Appellant at 36. Contrary to RAP 10.3(a)(6), Hickok-Knight fails to cite any authority supporting her argument that such a ruling, as opposed to an actual remark about evidence,
¶ 59 Hickok-Knight next argues that the foot-touching order was erroneous demonstrative evidence. Assuming, without deciding, that this order was error, we hold that any error was harmless.
¶ 60 We review a trial court's admission of demonstrative evidence for an abuse of discretion. Jenkins v. Snohomish County Pub. Util. Dist. No. 1, 105 Wn.2d 99, 107, 713 P.2d 79 (1986). Admission of demonstrative evidence may be harmless "`if the evidence is of minor significance in reference to the evidence as a whole.'" State v. Hunter, 152 Wn.App. 30, 42, 216 P.3d 421 (2009) (quoting State v. Neal, 144 Wn.2d 600, 611, 30 P.3d 1255 (2001)), review denied, 168 Wn.2d 1008, 226 P.3d 781 (2010). Such is the case here.
¶ 61 Hickok-Knight testified that the temperature of her left foot varied; her left foot could have been any temperature at that time — the same temperature as her right foot, for example, or perhaps Hickok-Knight's foot went cold minutes after the jury finished touching it. She had already testified that her left foot was changing temperature as she was on the witness stand, prompting one juror to ask whether he could touch it. Any error in allowing the jurors to touch Hickok-Knight's feet was harmless because it was of "minor significance in reference to the evidence as a whole." Hunter, 152 Wash.App. at 42, 216 P.3d 421 (internal quotation marks omitted).
¶ 62 Wal-Mart's liability was not before the jury because a pretrial ruling had established that Wal-Mart was liable as a matter of law. The only issues remaining for the jury to decide were causation and damages. The jury found in favor of Hickok-Knight on the causation issue; thus, she bears the burden of showing that, within a "`reasonable probability,'" the amount of damages that the jury awarded would have been "materially affected" had the foot touching not occurred. Brundridge v. Fluor Fed. Serv., Inc., 164 Wn.2d 432, 446, 191 P.3d 879 (2008) (quoting State v. Halstien, 122 Wn.2d 109, 127, 857 P.2d 270 (1993)); Saldivar v. Momah, 145 Wn.App. 365, 401, 186 P.3d 1117 (2008). This is a difficult burden for Hickok-Knight to satisfy.
¶ 63 "Determination of the amount of damages is within the province of the jury, and courts are reluctant to interfere with a
¶ 64 After the jury touched Hickok-Knight's foot, the trial continued for another nearly three weeks, during which the jury (1) watched 2008 and 2009 surveillance tapes showing Hickok-Knight walking, using a shovel in her yard, and loading bags of groceries into her car, all without obvious physical impairment; and (2) heard both Hickok-Knight's and Wal-Mart's expert witnesses (Drs. Loeser and Wray, respectively) testify that CRPS was as "murky" of a condition as headaches, and was "fairly controversial and unclear in any case." IV VRP at 550; V VRP at 708. These experts' testimonies further rendered the foot-touching order harmless because a reasonable jury could have inferred that (1) Hickok-Knight did not suffer from CRPS; (2) Hickok-Knight was manifesting her "emotional pain or emotional distress" as physical pain; and (3) this "somatization process," and not CRPS or the 2006 foot injury, was behind Hickok-Knight's complaints of pain. VI VRP at 889-90.
¶ 65 We further note that the jury's damages award of $6,433.35 was reasonable in light of Hickok-Knight's employment history. For example, a reasonable jury could have concluded that she was unable to maintain a job as a dental assistant for reasons other than her 2006 foot injury, namely, her lack of competency for this type of work. Thus, we decline to hold that, within a "reasonable probability," the amount of damages that the jury awarded "would have been materially affected" had the foot touching not occurred. Brundridge, 164 Wash.2d at 446, 191 P.3d 879 (internal quotation marks omitted); Saldivar, 145 Wash.App. at 401, 186 P.3d 1117.
¶ 66 Moreover, independent of the foot touching incident, the jury had ample evidence on which to base its damages award in an amount far below that which Hickok-Knight sought but did not prove. This evidence included: (1) the surveillance video showing an absence of any visible impairment of or injury to her left foot; (2) testimony from Dr. Vu, Hickok-Knight's own doctor and witness, that Hickok-Knight did not experience pain symptoms when her ankle was touched while she was distracted; (3) testimony about Hickok-Knight's employment history of inadequate performance and terminations; and (4) expert witness testimony about the controversial nature of the CRPS diagnosis. Because Hickok-Knight has not shown prejudice resulting from the foot touching incident, we hold that any error was harmless.
¶ 67 Hickok-Knight next argues that the trial court erred by admitting testimony about Hickok-Knight's medical and social histories and by allowing Dr. Hamm to testify.
¶ 68 We review a trial court's evidentiary rulings for abuse of discretion. Minehart v. Morning Star Boys Ranch, Inc., 156 Wn.App. 457, 463, 232 P.3d 591, review denied, 169 Wn.2d 1029, 249 P.3d 623 (2010). A trial court abuses its discretion if the trial court based its decision on untenable grounds or reasons or the decision was manifestly unreasonable. Yousoufian v. Office of Ron Sims, 168 Wn.2d 444, 458, 229 P.3d 735 (2010). A decision is manifestly unreasonable
¶ 69 Hickok-Knight argues that the trial court erred by allowing Drs. Loeser, Hamm, and Silver to testify about her medical and social histories, which she contends were inadmissible. Wal-Mart counters that "[a] party is entitled to cross-examine experts regarding the facts and data underlying their opinions, regardless of whether those underlying facts and data are themselves admissible in evidence." Br. of Resp't at 34. Wal-Mart is correct.
¶ 70 ER 703, which governs this evidentiary issue, provides:
(Emphasis added.) ER 703 "is not designed to allow a witness to `summarize and reiterate all manner of inadmissible evidence.'" Deep Water Brewing, LLC v. Fairway Res. Ltd., 152 Wn.App. 229, 275, 215 P.3d 990 (2009) (quoting State v. Martinez, 78 Wn.App. 870, 880, 899 P.2d 1302 (1995), abrogated on other grounds by State v. Kinneman, 155 Wn.2d 272, 288, 119 P.3d 350 (2005)). "But the trial court may allow the admission of hearsay evidence and otherwise inadmissible facts for the limited purpose of showing the basis of the expert's opinion."
¶ 71 Division One's opinion in DeHaven v. Gant is instructive. DeHaven complained of pain following surgery, subsequently underwent a personality test at a pain clinic, and eventually sued the doctors and the hospital. DeHaven v. Gant, 42 Wn.App. 666, 667-68, 713 P.2d 149, review denied, 105 Wn.2d 1015, 1986 WL 421095 (1986). During trial, the defendants' expert witness testified about the results of DeHaven's personality test, which she contended was hearsay and prejudicial. DeHaven, 42 Wash.App. at 668, 672-73, 713 P.2d 149. On appeal, DeHaven argued that the trial court had erred in allowing the defendants' expert to opine about her medical condition, which the expert had based, in part, on her personality test. DeHaven, 42 Wash.App. at 672, 713 P.2d 149. Disagreeing, Division One of our court held that ER 703 permitted the expert "to testify based upon the test results" — regardless of the admissibility of the underlying test itself — because the expert "testified that the exhibits he reviewed for purposes of his testimony were those reasonably relied upon by physicians in the diagnosis and treatment of patients." DeHaven, 42 Wash.App. at 672, 713 P.2d 149.
¶ 72 Similarly here, Hickok-Knight's medical and social histories were the type of evidence "reasonably relied upon by experts in the particular field[s]" of Dr. Loeser (neurological surgery and anesthesiology), Dr. Hamm (psychiatry), and Dr. Silver (psychology). ER 703. Dr. Loeser testified that his
¶ 73 We hold that the trial court did not err in permitting Dr. Loeser, Dr. Hamm, and Dr. Silver to testify about Hickok-Knight's medical and social histories, which were "of a type reasonably relied upon by experts in the particular field[s] in forming opinions or inferences upon the subject" at issue. ER 703.
¶ 74 Hickok-Knight next argues that the trial court erred by allowing Dr. Hamm's testimony about her CRPS treatment because (1) he based it "solely" on Hickok-Knight's past medical and social histories, which was "highly prejudicial"; (2) Dr. Hamm "has no special knowledge of CRPS and d[id] not even purport to address CPRS in his report" and, therefore, was not qualified to testify that "the treatment [Hickok-Knight] received for CRPS was not appropriate"; and (3) "Dr. Hamm's diagnosis of [Hickok-Knight's] `psychological borne problem'" was contrary to "evidence that there were physical and organic findings of CRPS reported by her treating physician Dr. Vu." Br. of Appellant at 41-42. This argument also fails.
¶ 75 First, as we have already explained, under ER 703, Dr. Hamm could testify about Hickok-Knight's medical and social histories in connection with rendering his expert opinion about the appropriateness of Hickok-Knight's treatment, regardless of whether these underlying histories were themselves admissible. Second, Dr. Hamm is a board-certified medical doctor with additional training in psychiatry who has treated, diagnosed, and evaluated patients, including those with CRPS, for several decades.
Such was the case here.
¶ 76 Third, Hickok-Knight does not explain how the trial court's permitting Dr. Hamm (Wal-Mart's witness) to testify that Hickok-Knight had a "psychological borne problem" was erroneous simply because it contradicted Dr. Vu's (Hickok-Knight's witness) testimony that Hickok-Knight suffered from CRPS. VI VRP at 931. "[E]vidence is tested by the adversarial process within the crucible of cross-examination, and adverse parties are permitted to present other challenging evidence." Anderson v. Akzo Nobel Coatings, Inc., 172 Wn.2d 593, 607, 260 P.3d 857 (2011) (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 596, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)). Accordingly, we hold that the trial court did not abuse its discretion in permitting Dr. Hamm to testify.
¶ 77 Next, Hickok-Knight contends that the trial court "expressed bias" toward her lawsuit and violated the appearance of fairness doctrine. Br. of Appellant at 43. Wal-Mart responds that Hickok-Knight did
¶ 78 We presume that a trial court "perform[ed] its functions regularly and properly without bias or prejudice"; the party claiming bias or prejudice "must support the claim with evidence of the trial court's actual or potential bias." Bus. Servs. of Am. II, Inc. v. WaferTech LLC, 159 Wn.App. 591, 600, 245 P.3d 257 (2011), aff'd, 174 Wn.2d 304, 274 P.3d 1025 (2012). "The test to determine whether a judge's impartiality might reasonably be questioned is an objective one that `assumes that a reasonable person knows and understands all the relevant facts.'" Smith v. Behr Process Corp., 113 Wn.App. 306, 340, 54 P.3d 665 (2002) (internal quotation marks omitted) (quoting Sherman v. State, 128 Wn.2d 164, 206, 905 P.2d 355 (1995)). Hickok-Knight fails to provide any evidence of bias here.
¶ 79 Hickok-Knight asserts that the trial court violated the appearance of fairness doctrine by (1) describing CRPS as a "murky" diagnosis and stating that "there were no organic or objective findings to justify [Hickok-Knight's] complaints of pain"; (2) allowing Wal-Mart "to continually bring up [Hickok-Knight's] prior injuries and medical conditions throughout the trial"; (3) "clearly indicat[ing] to the jury it [the trial court] did not believe [Hickok-Knight's] complaints of pain were valid" when it allowed the jury to touch her foot; and (4) commenting that "`we haven't even established whether or not [Hickok-Knight] suffers from the touch'" in sustaining Wal-Mart's objection to Hickok-Knight's counsel's statement during Dr. Vu's direct examination. Br. of Appellant at 43-45. None of these circumstances show trial court bias.
¶ 80 The trial court did not label CRPS "murky"; rather, in discussing the jury instructions outside the jury's presence, the trial court stated:
X VRP at 1561 (emphasis added). The trial court did use the term "murky" in a later context, nearly two months after the jury delivered its verdict. During oral argument on Hickok-Knight's motion for a new trial, the trial court stated:
X VRP at 1633-34 (emphasis added). Again, not only was the jury not present either, but also this colloquy occurred two months after the jury rendered its verdict.
¶ 81 In both instances when the trial court used the word "murky," it was simply echoing the testimonies of various expert witnesses, including Dr. Loesner and Dr. Vu (both Hickok-Knight's witnesses); this echoing did not reflect "actual or potential bias." Bus. Servs. of Am. II, 159 Wash.App. at 600, 245 P.3d 257. Moreover, Hickok-Knight fails to persuade us that the trial court could have violated the appearance of fairness doctrine simply by describing witness testimony outside the jury's presence.
¶ 82 Hickok-Knight also contends that the trial court expressed bias by ordering the jury to touch Hickok-Knight's left foot and by permitting various expert witnesses to testify about Hickok-Knight's medical and social histories. As we have already held earlier in this opinion, these trial court rulings were either not error at all or harmless error.
¶ 83 Hickok-Knight also asserts that the trial court expressed bias when it stated, out of the jury's presence, "`[W]e haven't even established whether or not [Hickok-Knight] suffers from the touch"' of her foot by the jurors. Br. of Appellant at 44-45. Again, Hickok-Knight fails to persuade us that the trial court's "impartiality may be reasonably questioned." Behr Process Corp., 113 Wash. App. at 340, 54 P.3d 665.
¶ 84 Next, Hickok-Knight argues that the trial court erred by removing language about earning capacity from the damages instruction and by refusing to give at least one of the requested susceptibility, lighting up, and aggravation instructions. As she properly notes, "`Impairment of earning capacity is different from loss of wages. It is the permanent diminution of the ability to earn money.'" Reply Br. of Appellant at 21 (quoting 6 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL 30.08.01, at 308 (2011)).
¶ 85 If the challenge on appeal goes to the language of a jury instruction, as opposed to the exclusion of an entire instruction, we review the instruction de novo, evaluating the jury instruction "`in the context of the instructions as a whole.'" In re Pers. Restraint of Hegney, 138 Wn.App. 511, 521, 158 P.3d 1193 (2007) (quoting State v. Benn, 120 Wn.2d 631, 644-45, 845 P.2d 289 (1993)). When a trial court refuses to give a jury instruction because of a factual dispute, we review the refusal for an abuse of discretion. State v. Walker, 136 Wn.2d 767, 771-72, 966 P.2d 883 (1998). "Jury instructions are sufficient when they allow counsel to argue their theories of the case, do not mislead the jury, and when taken as a whole, properly inform the jury of the law to be applied." Thompson v. King Feed & Nutrition Serv., Inc., 153 Wn.2d 447, 453, 105 P.3d 378 (2005). "Jury instructions are sufficient if they are readily understood and are not misleading to the ordinary mind." State v. Sublett, 156 Wn.App. 160, 183, 231 P.3d 231, review granted, 170 Wn.2d 1016, 245 P.3d 775 (2010) (citing State v. Dana, 73 Wn.2d 533, 537, 439 P.2d 403 (1968)). "Even if an instruction may be misleading, it will not be reversed unless prejudice is shown by the complaining party." State v.
¶ 86 Here, we review the language of the trial court's damages instruction under the de novo standard to determine whether it permitted Hickok-Knight to argue her theory of the case. We also review the trial court's refusal to give the susceptibility and aggravation instructions for an abuse of discretion: A trial court abuses its discretion in refusing to give an instruction where it adopted a view that "no reasonable person would have taken." Kim v. Moffett, 156 Wn.App. 689, 697, 234 P.3d 279 (2010); Walker, 136 Wash.2d at 771-72, 966 P.2d 883. In neither instance do we find reversible error.
¶ 87 Hickok-Knight argues that the damages jury instruction 11 did not permit her to argue her "theory of recovery on the basis of impaired earning capacity." Br. of Appellant at 47. More specifically, she contends that the trial court's damages instruction prevented her from seeking "future damages based on her inability to work as a dental assistant versus an office assistant." Reply Br. of Appellant at 21. We disagree. It was the evidence, not the instructions, that led to the jury's low damages verdict From Hickok-Knight's employment records from her dental assistant position a reasonable jury could infer that (1) Hickok-Knight's inability to work as a dental assistant flowed from things other than her foot injury in 2006, such as her personality or incompetencies; and (2) her 2006 foot injury at Wal-Mart, therefore, did not limit her lifetime earning capacity. We hold that Hickok-Knight has not shown that the language of the damages instruction prevented her from arguing and persuading the jury about her theory of the case or otherwise prejudiced her. See Torno v. Hayek, 133 Wn.App. 244, 253, 135 P.3d 536 (2006).
¶ 88 Out of a nearly three-week trial, only brief parts of Drs. Silver's and Hamm's entire testimonies arguably supported susceptibility and aggravation instructions. The trial court refused to give Hickok-Knight's proposed susceptibility and lighting up instructions, numbers 6 and 8, concerning a "bodily or mental condition that was not causing pain or disability" existing before her 2006 foot injury, which (1) made her "more susceptible to injury than a person in normal health" (susceptibility), or (2) "was lighted up or made active" (lighted up) by her foot injury.
¶ 89 Contrary to the trial court's belief, Dr. Silver testified that Hickok-Knight had "a history of having a psychological traumatic event as a teenager" and that people who have suffered from traumatic events "are more vulnerable" and "don't cope as well with injuries and pain." VII VRP at 1119-20. The questions before us, however, are whether the supporting facts "[rose] above speculation and conjecture," Board of Regents of the Univ. of Wash. v. Frederick & Nelson, 90 Wn.2d 82, 86, 579 P.2d 346 (1978), and whether this evidence was substantial enough to require the trial court to give the requested instruction. Stiley v. Block, 130 Wn.2d 486, 925 P.2d 194 (1996). In light of this scant evidence, we cannot say that the trial court abused its discretion in refusing to give the susceptibility instruction.
¶ 91 Hickok-Knight also argues that, based on the trial court's ordering the jury to touch her foot and admitting testimony about her medical and social histories, the trial court erroneously denied her CR 59(a) motion for a new trial. This argument also fails.
¶ 92 We review for abuse of discretion a trial court's denial of CR 59(a) motion for a new trial. Collins v. Clark County Fire Dist. No. 5, 155 Wn.App. 48, 81, 231 P.3d 1211 (2010). "The test for determining such an abuse of discretion is whether `such a feeling of prejudice [has] been engendered or located in the minds of the jury as to prevent [the] litigant from having a fair trial.'" Collins, 155 Wash.App. at 81, 231 P.3d 1211 (quoting Aluminum Co. of Am. v. Aetna Cas. & Sur. Co., 140 Wn.2d 517, 537, 998 P.2d 856 (2000)). As we have already held, the foot touching order was harmless, if error, and admission of testimony about Hickok-Knight's medical and social histories was not error at all. Hickok-Knight having failed to show the lack of a fair trial or prejudicial error in the trial court's denial of her motion for a new trial, we affirm.
¶ 93 Lastly, Hickok-Knight argues that the trial court erred by awarding Wal-Mart costs incurred before it made an offer of judgment. To the extent that the trial court's costs award to Wal-Mart included such pre-offer costs, we agree.
¶ 94 The standard of review for an award of costs involves a two-step process. First, we review de novo whether a statute, contract, or equitable theory authorizes the award. Second, if such authority exists, we review for abuse of discretion the amount of the award. Estep v. Hamilton, 148 Wn.App. 246, 259, 201 P.3d 331 (2008) (internal citations omitted).
¶ 95 Under CR 68, an offeree must "pay the costs incurred after the making of the offer" if the judgment that the offeree obtains is less than the offer. (Emphasis added.) Wal-Mart asserted, and the trial court apparently agreed, that under RCW 4.84.010(5), a party incurs the costs of obtaining reports and records when the party has the reports and records admitted into evidence at trial; therefore, Wal-Mart incurred the costs of obtaining reports and records "after the making of the offer," for CR 68 purposes because, according to its reading of RCW 4.84.010(5), Wal-Mart did not incur those costs until it offered and the trial court admitted the reports and records trial. We disagree.
¶ 96 RCW 4.84.010(5) provides a prevailing party with "[r]easonable expenses... incurred in obtaining reports and records, which are admitted into evidence at trial." (Emphasis added.) The prevailing
¶ 97 We hold that the plain language of RCW 4.84.010(5) did not authorize the trial court's award of costs to Wal-Mart for expenses incurred before its offer of judgment to Hickok-Knight, including expenses for depositions and medical records that Wal-Mart obtained before its offer of judgment (though eventually offered into evidence at trial). Rather, Wal-Mart incurred these costs at the time it obtained these depositions and records, before its offer, not when it had them admitted into evidence at trial. Accordingly, we vacate the trial court's cost award to Wal-Mart and remand to the trial court to recalculate this award consistent with this opinion.
¶ 98 Hickok-Knight requests attorney fees on appeal. But, contrary to RAP 10.5(a)(6), she fails to provide argument and citation to authority in support of this request. Instead, she presents only a "`bald request for attorney fees'" on appeal, which is insufficient. Hudson v. Hapner, 170 Wn.2d 22, 33, 239 P.3d 579 (2010) (quoting Wilson Court Ltd. P'ship v. Tony Maroni's, Inc., 134 Wn.2d 692, 710 n. 4, 952 P.2d 590 (1998)). Accordingly, we deny her request for attorney fees on appeal.
¶ 99 We vacate the trial court's costs award to Wal-Mart and remand with instructions to recalculate costs. We affirm the trial court on all other grounds.
¶ 100 A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered.
We concur: ARMSTRONG, J., and JOHANSON, A.C.J.
IV VRP at 538. CRPS diagnosis criteria include (1) "severe pain that is persistent well beyond the initial recovery period"; and (2) "skin changes" and changes in "nail growth," "hair growth," "muscle bulk," and "blood supply." III VRP at 417-18. In the "acute phase," an extremity may be "warm" or "hot"; chronic CRPS may result in a "cold extremity." III VRP at 418. CRPS can also cause "color changes and swelling." III VRP at 418.
I VRP at 5-7.
IV VRP at 550, 560-61.
Group Health Co-op. of Puget Sound, Inc. v. Dep't of Revenue, 106 Wn.2d 391, 400, 722 P.2d 787 (1986) (internal citations omitted) (quoting State v. Wineberg, 74 Wn.2d 372, 382, 444 P.2d 787 (1968)).
Dr. Loeser, Hickok-Knight's witness, testified that "[h]eadaches are every bit as murky as CRPS," IV VRP at 550, and further explained:
IV VRP at 560-61. And when Wal-Mart asked Dr. Wray, Wal-Mart's expert neurologist witness, whether she believed that CRPS is a "murky and controversial condition," Dr. Wray replied, "Yes." V VRP at 779. These comments were not, however, from the trial court. Furthermore, Hickok-Knight did not object to them below.
CP at 454.
CP at 463.