IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

MICHAEL MOYER, individually and as )

Personal Representative of the Estate of) No. 75836-5-I QC)

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GRANT MOYER, Deceased, )

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PEACEHEALTH, a Washington

corporation d/b/a PEACEHEALTH ST.

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JOSEPH HOSPITAL; WILLIAM ) UNPUBLISHED OPINION

LOMBARDI, M.D.; and SANJEEV )

VADERAH, M.D., )

)

FILED: April 16, 2018

Respondents. )

)

BECKER, J. — In this medical malpractice action, a jury found the

defendants not negligent. Appellant contends the trial court committed

prejudicial error by excluding evidence he offered to undermine the credibility of

one of the doctors. He fails to show that the evidence was relevant or helpful to

jurors' understanding of the issues at stake.

FACTS

Eighty-five-year-old Grant Moyer started experiencing episodes when

exercising during which he felt so dizzy he thought he might faint. Afterwards,

Moyer felt weak and unsteady for an hour or two. These episodes became

increasingly frequent. Moyers primary care physician referred him to Skagit
No. 75836-5-1/2

Valley Hospital for cardiac testing. The testing revealed heart disease that was

causing blockage in one of Moyer's arteries. Moyer elected to undergo surgery.

Cardiologists William Lombardi and Sanjeev Vaderah, respondents in this

appeal, performed Moyer's surgery on February 11, 2013, at Bellingham's

PeaceHealth St. Joseph Medical Center. The procedure involved placing tubes

called stents in Moyer's arteries to allow increased blood flow. Moyer was

discharged from the hospital two days after the surgery.

On February 22, 2013, Moyer was airlifted from his home in Friday Harbor

back to PeaceHealth after displaying symptoms of a heart attack. His condition

deteriorated, and he died in the hospital on February 26, 2013.

Moyer was survived by his wife and three adult children. A pathologist

performed an autopsy at the family's request. His opinion was that Moyer died

due to complications resulting from a misplaced stent.

Michael Moyer, Grant Moyer's son and the representative of his estate,

initiated this suit against PeaceHealth, Dr. Lombardi, and Dr. Vaderah on April

17, 2015. The complaint included allegations that the defendants were negligent

for (1) performing a procedure that was not medically indicated, (2) failing to

adequately review Moyer's medical records and analyze his case before the

procedure, and (3) blocking Moyer's artery and collateral branches during the

procedure. All defendants denied liability.

Trial began on June 27, 2016. Moyer's witnesses included the pathologist

who performed the autopsy and cardiologists who opined that the defendants

provided substandard care. The defense countered with expert testimony that

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Dr. Lombardi and Dr. Vaderah met the standard of care in their treatment of

Moyer and that his death was not caused by their actions. A pathologist

disagreed with the conclusion in the autopsy report that the stents were

misplaced.

By verdict rendered July 15, 2016, the jury determined that none of the

defendants were negligent. This appeal followed.

ANALYSIS

Moyer challenges evidentiary rulings. We review for an abuse of

discretion. Hollins v. Zbaraschuk 200 Wn. App. 578, 580, 402 P.3d 907 (2017),

review denied,409 P.3d 1061 (2018). A court abuses its discretion when it

makes a decision for untenable reasons or on untenable grounds. Hollins 200

Wn. App. at 582-83.

The court heard defense motions in limine and ruled certain items of

evidence Inadmissible, primarily on the basis that they were irrelevant or unduly

prejudicial. Moyer argued during the trial that the defendants "opened the door"

to the previously excluded evidence. The court maintained its pretrial rulings.

Moyer contends exclusion of the evidence was reversible error. He claims

the evidence was relevant to his theory that the defendant doctors were

performing a high number of surgeries without adequate regard for whether

those surgeries were medically indicated.

Relevance is a threshold requirement for admission of evidence. ER 401.

The evidence must have some tendency to make the existence of any fact of

consequence to determining the action more or less probable. ER 402.

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No. 75836-5-1/4

Relevant evidence may be excluded if its probative value Is substantially

outweighed by the danger of unfair prejudice. ER 403.

PowerPoint presentation on "appropriate use"

Through discovery, Moyer obtained a PowerPoint presentation prepared

in 2012 by Gerald Marschke, the administrative director of cardiovascular

services at PeaceHealth. The presentation is described on its title page as a

"high level financial review" pertaining to chronic total occlusion procedures, the

type of surgery that Dr. Lombardi and Dr. Vaderah performed on Moyer.

The presentation included statistics about the number of such surgeries

done at PeaceHealth that satisfied "appropriate use criteria" developed by the

American College of Cardiology. Of the 140 cases reviewed—all performed by

Dr. Lombardi-45 percent were classified "appropriate," 22.1 percent were

classified "uncertain," 9.3 percent were classified "rarely appropriate," and 23.6

percent were designated "not classifiable." Moyer interprets this data as showing

that Dr. Lombardi had a pattern of performing chronic total occlusion procedures

that were not medically indicated.

The record does not bear out Moyer's interpretation. Marschke is

identified in the testimony as an administrator, not a physician. His declaration

explains that the 2012 review was concerned with proper documentation, not

medical necessity. Cases classified as "appropriate" were those where the

hospital had the medical records to meet the criteria for each category. Cases

were classified as "uncertain," "rarely appropriate," or "not classifiable" if criteria

points were missing because of a lack of medical records or documentation.

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No. 75836-5-1/5

Marschke declared that the findings in the review "did not cause me or anyone at

the hospital any concern that Dr. Lombardi was failing to properly assess the

indications for procedures he performed, or that any of his procedures were not

clinically indicated." Marschke testified that one concern was that Medicare

reimbursement might, at some point in the future, be tied to compliance with the

appropriate use criteria.

Moyer did not rebut Marschke's testimony. Dr. David Jessup, a

PeaceHealth physician who was knowledgeable about Marschke's review,

confirmed that the concern motivating the review was proper documentation of

the growing number of surgeries of this particular type. He said,

I recall that Gerry [Marschke] had identified that a large number of

the records that were not classifiable were due to poor

documentation. And it was the belief that it was difficult for one

physician to manage all the transfer of medical records from

referring physicians. And we would build a different process that

would allow Dr. Lombardi to continue to do the work he was doing

and utilize administrative assistants to help obtain the records so he

would have it available for him when he saw the patients in the

clinic or before the procedure was done.

Dr. Lombardi was asked about "appropriate use" during his trial testimony.

He testified that he is a "principal investigator" for the entity that develops the

appropriate use criteria. A little later, he also testified that before beginning a

surgery, PeaceHealth providers do a lime-out" to ensure, among other things,

that all necessary paperwork is on file. None of his testimony establishes that

the PowerPoint discussion of "appropriate use" criteria was even minimally

relevant to Moyer's theory that Dr. Lombardi was doing unnecessary surgeries.

Allowing jurors to hear that only 45 percent of Dr. Lombardi's surgeries were

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deemed "appropriate" would have been prejudicial because it sounds like a

criticism of his clinical judgment. Admitting the PowerPoint presentation would

have required explanations of collateral matters, including several cases besides

Moyer's. A trial court has discretion under ER 403 "to control distracting 'side

issues.'" Riooins v. Bechtel Power Corp.,44 Wn. App. 244, 253, 722 P.2d 819,

review denied 107 Wn.2d 1003 (1986). We conclude the trial court had a

tenable basis for excluding the PowerPoint.

Potential operation was "iuicv" 

The trial court excluded an e-mail in which Dr. Lombardi told Dr. Vaderah

he hoped they would get to do an operation "that looks juicy." In other excluded

e-mails, the two surgeons discussed scheduling up to four surgeries in a day.

Moyer argues that the e-mails were relevant to his theory that Dr. Lombardi and

Dr. Vaderah were more concerned with doing a large number of surgeries than

with doing them carefully. We disagree. The e-mails would have had an

inflammatory effect and virtually no probative value. It was not an error to

exclude them. Similarly, it was not error to exclude testimony that Dr. Lombardi

did not call the Moyer family after Moyer's death. Like the description of a

surgical procedure as "juicy," this evidence would have suggested that Dr.

Lombardi lacked personal warmth without proving anything about the quality of

his treatment of Moyer.

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No. 75836-5-1/7

Comments to another physician 

When Moyer returned to the hospital on February 22, 2013, Dr. Jessup

was involved in his treatment. According to Dr. Jessup's deposition testimony,

Dr. Lombardi approached him at professional conferences on two occasions after

Moyer's death and described this litigation as "upsetting" and said that other

PeaceHealth physicians "were not helping him." This was the extent of their

conversation about the litigation. The trial court excluded Dr. Jessup's testimony

about these comments by Dr. Lombardi. Moyer argues that the comments

should have been admitted because they reveal Dr. Lombardi's "consciousness

of guilt."

A defendant's threatening conduct towards a witness in a criminal case

can be admitted as evidence that the defendant had a guilty conscience. State v.

McGhee,57 Wn. App. 457, 461-62, 788 P.2d 603, review denied, 115 Wn.2d

1013 (1990). A defendant doctor's Intimidating communication to an expert

witness in a medical malpractice case—that it was "inappropriate for doctors to

testify against doctors"—has been held admissible to show the defendant's

consciousness of the weakness of his position if he acted with intent to interfere

with anticipated testimony. McCool v. Gehret,657 A.2d 269, 273, 277 (Del.

1995). But here, the record is too sketchy to support an inference that Dr.

Lombardi intended to threaten Dr. Jessup or interfere with his testimony, and

there is no evidence that Dr. Jessup perceived Dr. Lombardi as having that

intent. Excluding the evidence was not an abuse of discretion.

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No. 75836-5-1/8

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The "open door" rule 

When one party introduces evidence on a particular topic, the "open door

rule allows the opposing party to also introduce evidence on that topic if

necessary to clarify a false impression. Hollins, 200 Wn. App. at 586. "To close

the door after receiving only a part of the evidence not only leaves the matter

suspended in air at a point markedly advantageous to the party who opened the

door, but might well limit the proof to half-truths." State v. Gefeller,76 Wn.2d

449, 455, 458 P.2d 17 (1969).

Moyer argues that during trial, the defendants "opened the door" to some

of the excluded evidence by presenting Dr. Lombardi as caring and

compassionate. For example, Dr. Lombardi testified that he became a doctor "to

help people," and that he has striven to improve patient care by developing new

surgical techniques for treating occluded arteries. Moyer claims he should have

been allowed to complete the picture with the e-mail in which Dr. Lombardi

described an operation as "juicy" and with the fact that Dr. Lombardi did not offer

condolences to the Moyer family.

Moyer likens this case to State v. Renneberq,83 Wn.2d 735, 522 P.2d

835 (1974). In Renneberq a criminal defendant described her life to the jury in

glowing terms that implied she was a wholly respectable and upstanding citizen.

In a ruling that was affirmed on appeal, the trial court allowed the State to

introduce evidence that the defendant used drugs; the legitimate purpose of the

evidence was to counter the impression she had created that she was a type of

person most unlikely to commit grand larceny. Unlike in Renneberq,Dr.

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Lombardi's testimony that he was motivated by a desire to help patients did not

open the door to otherwise inadmissible character evidence. Dr. Lombardi put

his character at issue to a certain extent with self-serving testimony about his

compassionate motivations, but the evidence Moyer wanted to introduce did not

negate that testimony. Moyer fails to identify any mischaracterization by Dr.

Lombardi that would have been clarified by the excluded evidence. The open

door rule does not apply. See City of Seattle v. Pearson,192 Wn. App. 802,

818-19, 369 P.3d 194 (2016).

Moyer claims the excluded evidence was relevant to undermine Dr.

Lombardi's credibility. His argument is not supported by the case on which he

principally relies, Erickson v. Robert F. Kerr, M.D., PS,125 Wn.2d 183, 190, 883

P.2d 313 (1994). In Erickson a woman's suicide led to a lawsuit against her

doctor. The claim was that the doctor had negligently failed to properly diagnose

and treat the woman's clinical depression. Erickson, 125 Wn.2d at 185. In a

conversation with the woman's husband after the suicide, the doctor asked about

the woman's health, apparently forgetting that she had died. Erickson 125

Wn.2d at 186. The court held this comment should have been admitted as

evidence of the doctor's forgetfulness. The doctor relied on his memory, rather

than records, when rendering treatment and when testifying about the treatment

he provided. Erickson, 125 Wn.2d at 191. Evidence that the doctor had a faulty

memory was relevant to the credibility of his testimony denying negligence.

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The evidence Moyer wanted to introduce, in contrast, was not relevant to

refute Dr. Lombardi's denial of negligence. The credibility of Dr. Lombardi's

portrayal of himself as compassionate was not a central issue.

In summary, the rulings in limine did not constitute an abuse of discretion,

and defense testimony during the trial did not create a situation where those

rulings had to be revised.

The judgment on the verdict is affirmed.

WE CONCUR:

Set7 . lar

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