IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
THOMAS CLARK and ALYSON CLARK, husband and wife, and the marital community composed thereof, Respondents,

ANDELLETENG, M.D., and CASCADE SURGERY ASSOCIATES, PLLC d/b/a CASCADE ORTHOPAEDICS, Appellants. No. 73125-4-

UNPUBLISHED OPINION FILED: June 27, 2016 Verellen, C.J.

— When reviewing an order granting a new trial, we give great 

### deference to trial court findings ofmisconduct but also focus on the trialcourt's specific
reasons forthe new trial. The order granting a new trial in this medical malpractice 

### lawsuit heavily relies on inaccurate facts. The trial court also ignored its rulingexpressly 

### authorizing the defense to dispute causation by attributing a cerebrospinal fluid leak to 

### surgeries performed by a nonparty doctorthat were "not appropriate."1 Because core examples ofmisconduct identified by the trial court are fatally flawed, we conclude the trial court abused its discretion. We reverse the order granting a new trial and the 

### judgment awarding terms. We remand forreinstatementof the juryverdict.
Report ofProceedings (RP) (Oct. 6, 2014) at 30.No. 73125-4-1/2
FACTS In2008, Thomas Clark began to have low back and leg pain. On February 1, 

### 2010, Dr. Andelle Teng operated on Clark's low back. On February 18, Clark had a magnetic resonance imaging test (MRI). Dr. Teng reviewed the MRI and told Clark that he did not have a cerebrospinal fluid (CSF) leak. Clark sought a second opinion from Dr. Wohns. Dr. Wohns operated twice on Clark's low back. An MRI after Dr. Wohns's 

### surgeries revealed a "largefluid collection" in his low back.2 Clark had a fourth surgery at Harborview by a resident physician to repair a CSF leak. Clark sued Dr. Teng and his employerfor medical malpractice. Clark's theory


### was that Dr. Teng was negligent in performing the surgery and infailing to treat Clark's CSF leak. Dr. Teng did not plead nonparty fault. In his motion in limine, Clark argued defense counsel "should be precluded from 

### suggesting" that "any non-parties are at fault" or "that Dr. Wohns violated the standard 

### ofcare orcaused any of the injuriessustained byMr. Clark."3 Defense counsel agreed not to argue nonparty fault but insisted on their right to challenge causation; specifically, 

### to argue the MRI taken soon after Dr. Teng's surgery revealed no CSF leak, but the MRI after Dr. Wohns's surgeries did: 

### [T]hetestimony from our experts is going to be that there was no CSF leak 

### visible on the MRI that was taken on February 18, 2010.[4] Our witnesses are going to say that on February 18, 2010, there was no 

### evidence of a CSF leak and there was no reason for... a surgery.[5]

2 Ex. 141. 3Clerk's Papers (CP) at 25. 4RP(Oct. 6, 2014) at 27. 5 Id. at 28.No. 73125-4-1/3 So his second
. . . Harborview surgery was necessitated only because a 

### CSF leak occurred during Dr.Wohns' first surgery. Now, Wohns said we caused it, and we're going to say ... the postoperative MRI doesn't show 

### any CSF leak. The MRI after Dr. Wohns's surgery shows a big CSF leakJ6! 

### The court granted Clark's motion inlimine about nonparty fault butexpressly allowed Dr. Teng to compare and to contrastthe February 18 MRI with the one taken after Dr. Wohns's surgeries and to argue thatthose surgeries were inappropriate: Ihave no problem at allsaying that the MRI ofthe 18th ofFebruary 2010

. . . [d]id not show any kind of a leak, and therefore surgery was not 

### appropriate. That's fine.[7] IfMr. Fitzer [defense counsel] limits his argument and his testimony as 

### evidence to what he hasjustdescribed, I'mokay with that. And Ican still 

### grant your motion in limineNo. 4, and itfallswithin what both of you are saying.[8] And, Mr. Fitzer, Iwill accept what youjust said. You can present exactly 

### what you'vejusttold me you're going to present. That seems to be the 

### gravamen of your case. And at the same time, Mr. Wampold's [Clark's counsel] motion No. 4 is granted.[9] Clark also soughtto preclude evidence of his treatmentfor "sleep apnea, a neck 

### surgery, a heart stent, and a corneal replacement."10 The courtruled defense counsel could notelicittestimony about "anything above the waist."11 Defense counsel asked the court to clarify its ruling: MS. FITZER: Just so that we know and don't cross over any line, are you 

### saying for any prior medical record? Orare you just saying for the stent and for the neck? 6Id, at 31. 7jd at 30. 8Id, at 31. 9 Id at 32. 10CP at 26. 11 RP(Oct. 6, 2014) at 49.No. 73125-4-1/4
COURT: I'msaying anything above the waist. Let's put itthat way. MS. FITZER: Anything above the waist? MS. ALLEN: Sleep apnea is above the waist. 

### COURT: That is, yes. Ican see thatto be kind ofnose and sinus and all ofthat stuff. So, yeah. But below the waist is fair 

### game since that's why Dr. Teng saw him in the first place, I

assume. MS. FITZER: Does that mean we cannot refer to the headache[?] COURT: You've got to show it's relevant. And something that 

### happened months before, or at least a month before, is not, in my mind, relevant. But ifyou can give me an offer of proof during the course ofthe trialwhere you thinkthat is relevant, I'll reconsider that. And I'll give them an opportunity to answer. It's all [ER] 403, 404. Okay 

### [S]o I'm going to say this is granted, but in all ofthese motions, for both defense and plaintiffs, you can move to 

### reopen ifyoufollow whatIjustindicated.1121 Before opening statements, the parties exchanged PowerPoint slides without objection. Clark's counsel inopening statementforeshadowed Dr.Teng's "defenses" to the jury: So what are the defenses? Dr. Teng will tell you that Dr.Wohns is mistaken withwhat he saw[, t]hat he didn't see loose bone, thatthere wasn't a CSF leak, and that there wasn't a compression ofthe thecal sac. 

### Eitherthat he's wrong orthat he's not telling the truth. Butwhen you hear 

### that, ask yourselfwhether a 30-year neurosurgeon was wrong aboutthose 

### things or whatincentive hewould have to nottell thetruth.'131 Defense counsel responded: The case started in 2010 when Mr. Clark reported to Dr. Teng that 

### he had some additional problems. Nowremember, from 2008, we already know, and we will see documentation to establish it, that he had problems 

### with his upper spine that were causing symptoms in his legs. So this is 12 Id, 13RP(Oct. 7, 2014) at 139.No. 73125-4-1/5 

### nothing new for him. There was a preoperative MRI, which I'm going to show you in a minute, and there was a postoperative MRI, and we're 

### going to use those in a second to explain what actually happened in this case.'141 Mr. Clark saw Dr. Wohns on the 12th, and you'vejust heard that it was something—at least itsounded like an urgent or emergent situation. 

### Well, there was no surgery byDr. Wohns for 11 days.[15] [T]his is what it looked like with a free spinal cord the last time Mr. Clark left [Dr.] Teng's care. .. . Here, this is after Dr. Wohns' first and second surgeries. All of this blue is cerebrospinal fluid. It's the fluidthat surrounds the brain, it 

### surrounds the spinal cord. It's supposed to be inside the yellowtube. It's not supposed to be outside. None ofthat was there until after he operated the first time. Then the patient comes back, has another procedure, and the spinal fluidis—actually corroded its way out the back. That's when Dr. Wohns' nurse, not Dr. Wohns, sewed him up and sent him home. Then, after the second operation that Dr. Wohns performs, you still have this problem, and it's much thicker. .
.. That's several inches of spinal fluid after Dr. Wohns. And then this is the MRI after the medical resident and Dr. Chesnut repair it, and there's much less. And you can see where—you'll hear 

### testimony about the pressure caused by this CSF afterthe Wohns' surgery. So there's more, as you'll hear, thanjustthe pictures you have seen. When people have a leak as a result ofback surgery or some other problem, there are symptoms. First of all, there are what we call postural headaches. So way back here, there's no postural headache. Postural headache is when you stand up and you get this bad headache, and when they lay you flat itgoes away, and that's a primary sign of a CSF leak. There's no medical record that Mr. Clark had one ofthose. After Dr. 

### Wohns operated, he had posturalheadaches for obviousreasons.'161

14 Id, at 147. 15 ]± at 148-49. 16 Id. at 151-53.No. 73125-4-1/6 The day after opening statements, Clark alleged defense counsel's opening statement violated the order in limine. The court found defense counsel had not violated the order in limine. Later, the court raised the question of misconduct when defense counsel asked Dr. Teng: Q. Do you rememberwhen you first met Mr. Clark?
A. I do. Q. And tell us what you remember about your very first meeting with him.
A. That is a different reason that I'm
. . . Q. Iunderstand. Were there any low back problems involved at that earlier meeting? A. No, there wasn't. Q. All right. When did you first meet him in regard to his low back? A. In2010.'171 

### The court noted this questioning was "veryclose to a violation of that order inlimine."18 Defense counsel referred to headaches and sleep apnea when questioning expert witness Dr. Nitin Bhatia. Clark did not contemporaneously object, but later alleged defense counsel violated the order in limine by eliciting testimony about Clark's preexisting medical conditions "above the waist": Q. Okay. Now, turning to Exhibit No. 115, are those Dr. Teng's progress notes as he is following the patient in the hospital?
A. Yes. 17RP(Oct. 15, 2014) at 804. 18 RP (Oct. 16, 2014) at 857-58. The trial court laterfound this incident to be an actual violation ofthe order in limine. See RP (Oct. 20, 2014) at 1133-34.No. 73125-4-1/7 

### Q. Okay. In reviewing those, first of all, is there any indication thatthis patient had a headache? A. There was an indication
. . . Q. Ifyou turn to page 84. 

### A. Page—yeah. Here it is. Iwas trying to findwhere I'd seen it. On February 2nd, which is the day after surgery, and he woke up with a headache, thinks it's because his CPAP was broken and he had to use BiPAP. And those are machines you use for sleep apnea, and 

### they strap around the head and help you breathe ifyou have, ifyou 

### have sleep apnea.[19] The court ultimately found defense counsel's questions violated the order inlimine. Plaintiff's exhibits included medical records that Dr. Teng had seen Clark "inthe 

### pastfor cervical problems,"20 and that Clark had complained "ofsleep apnea, CPAP machine."21 Near the end of trial, Clark alleged defense counsel had repeatedly violated the 

### order in limine and requested a defaultjudgment. The trial court discussed three violations ofthe order in limine: defense counsel's opening statement, the testimony of 

### Dr. Teng that he had previously seen Clarkunrelated to his back injury, and the reference to headaches associated with the sleep apnea device. The court denied a 

### defaultjudgment, but reserved ruling on another remedy. 

### After closing arguments, Dr. Teng moved for a mistrial, alleging violations of the consolidated ordergranting motions inlimine. The court denied a mistrial: Interms of Dr. Wohns, the clear inference ofthe testimony presented by the defense through their experts and through Dr. Teng was that Dr. Wohns was inaccurate and not forthright in his testimony and what he said 19 RP (Oct. 20, 2014) at 1086-87. 20 Ex. 1 at 15. 21 Ex. 3 at 9.No. 73125-4-1/8 

### to the jury and what he told people he found during the course of his first surgery. Ithink you would have had to have been asleep to notgetthat clear inference.
. . . 

### . . . It's forthejury to decide on Dr. Wohns's credibility, just as they have to decide on every witness's credibility. It's for them to decide whether or not he was accurate in his description ofwhat he found after 

### his firstsurgery, and in what he did and in his opinions. And that'sjust like 

### every other witness.1221 And as far as inappropriate argument, Ithinkthat when you have a 

### highly-contested case, as this was, both sides push the boundaries. Both sides pushed the boundaries in this matter. We argued during the first week that Mr. Fitzer pushed the boundaries in his opening statement. There was a briefthat counsel wrote that Ireread again last night about how Mr. Fitzer had violated my order in limine.
... Ithink that both sides 

### pushed the boundaries as much as they felt they could. But Irefuse to find that either side went over those boundaries to the point where a mistrial is warranted.'231 

### The jury returned a defense verdict. Clarkfiled a motion for newtrial, claiming defense counsels' repeated violations of the order in liminewarranted a new trial. At 

### the hearing, the court found defense counsel "especially violated pretrial orders" during trial.24 The court granted Clark's motion for new trial, concluding the cumulative effect ofdefense counsels' misconduct clearly casts doubt on whether a fair trialoccurred. The court awarded Clark $82,131.65 in sanctions against defense counsel. Dr. Teng appeals. ANALYSIS 

### "We review a trialcourt's grant of a new trial forabuse of discretion unless that 

### grant is based on an error or law."25 Dr. Teng argues we should review the newtrial
22 RP (Oct. 22, 2014) at 1570-71. 23l_cLat1573. 24 RP (Dec. 19, 2014) at 1586-87. 25 Teter v. Deck, 174 Wn.2d 207, 215, 274 P.3d 336 (2012).

8No. 73125-4-1/9 order de novo because the trial court based its decision on an "error of law," namely, the 

### admissibility of evidence.26 But the evidentiary rulings underlying the order inlimine, including arguably drawing a line between evidence of nonparty fault and causation, all 

### involve discretionary rulings.27 The trial court exercised its discretion in granting a new trial based upon defense counsel's conduct during trial. Abuse of discretion standard applies. 

### Atrial court has "broad discretion" in granting a motion for newtrial.28 We require a "much stronger showing ofabuse ofdiscretion to set aside an order granting a new 

### trialthan one denying a new trial."29 The trial court is "in the best position" to gauge the 

### prejudicial impact ofcounsels' conduct on thejury.30 Particularlywhen the grounds for a new trial involve the assessment ofmisconduct during the trial and its potential effect
on thejury, we will give the trial court's order and findings ofmisconduct "great deference."31 We are also mindful not to "substitute our own judgmentfor the trial 

### court's judgment in evaluating the scope and effect of that misconduct."32

26 Appellant's Reply Br. at 1; see also CR 59(a)(8). 27 Mutual of Enumclaw Ins. Co. v. Gregg Roofing Co., 178 Wn. App. 702, 728, 315 P.3d 1143 (2013) (evidentiary rulings reviewed for abuse ofdiscretion); Garcia v. Providence Med. Ctr., 60 Wn. App. 635, 642, 806 P.2d 766 (1991) (ruling on a motion in limine reviewed for abuse of discretion). 28 Bunnell v. Barr. 68 Wn.2d 771, 775, 415 P.2d 640 (1966). 29 Teter, 174 Wn.2d at 222. 30 Taylor v. Cessna Aircraft Co.. Inc., 39 Wn. App. 828, 832, 696 P.2d 28 (1985). 31 Leveav.GA Gray Corp.. 17 Wn. App. 214, 226, 562 P.2d 1276 (1977); see also Teter. 174 Wn.2d at 223. 32 Teter. 174 Wn.2d at 226.No. 73125-4-1/10 

### Analyzing an order granting a newtrial "is generally limited to the trial court's
reasons for granting a new trial."33 Those reasons must "adequately support its order."34 A trial court abuses its discretion only if its decision is manifestly unreasonable


### orbased on untenable grounds or reasons.35 But a trial court that "relies on 

### unsupported facts"36 or "aclearly erroneous assessment of the evidence"37 necessarily abuses its discretion. It is also untenable if a trial court ignores its own prior rulings 

### when finding misconduct.38 The order granting Clark a new trialfocused upon alleged violations of the consolidated order on motions in limine.39 A new trial may be granted when a prevailing 

### party'smisconduct materially affects the other party's substantialrights.40 Butthetrial court's reasoning is flawed in several respects.



### 33 Cox v. Gen. Motors Corp.. 64 Wn. App. 823, 826, 827 P.2d 1052 (1992). 34 Storey v. Storey, 21 Wn. App. 370, 373, 585 P.2d 183 (1978). 35 Gildon v. Simon Property Grp.. Inc., 158 Wn.2d 483, 494, 145 P.3d 1196 (2006).36jd, 37 Demelash v. Ross Stores. Inc.. 105 Wn. App. 508, 530, 20 P.3d 447 (2001). 38 See generally West v. Dep't of Licensing. 182 Wn. App. 500, 516-17, 331 P.3d 

### 72 (2014) ("A court's decision is manifestly unreasonable ifit is outside the range of acceptable choices, given the facts and the applicable legal standard; it is based on 

### untenable grounds ifthe factual findings are unsupported by the record; and it is based on untenable reasons if it is based on an incorrect standard or the facts do not meet the 

### requirements of the correct standard."); Reidelberger v. Highland Body Shop. Inc.. 83 III.2d 545, 553, 416 N.E.2d 268 (III. 1981) ("Granting a new trialbecause ofconduct of counsel which did not violate the original in limineorder and because of what the court 

### in retrospect perceived to be violations ofrulings made during the trial, which the record reveals were neither clear nor consistent, constitutes a clear abuse of discretion."). 39 CP at 473, H6. 40 CR 59(a)(2).

10No. 73125-4-1/11 First, the trial court heavily relied upon inaccurate facts and ignored its rulings authorizing defense counsel to question causation by attributing the CSF leak to 

### Dr. Wohns's inappropriate surgeries.41 The trial court granted Clark's motion in limine to preclude any suggestion of fault
or causation by nonparties, including Dr.Wohns. Atthe same time, the court clarified that defense counsel could argue "the postoperative MRI [did not] show any CSF leak" but the "MRI after Dr. Wohns's surgery show[ed] a big CSF leak" because that is the 

### "gravamen" ofDr. Teng's case.42 Defense counsel disclosed thattheir witnesses would testify that "on February 18, 2010, there was no evidence of a CSF leak and there was



### ... no need for a surgery."43 The court responded, "I have no problem at all [with you] saying that the MRI of the 18th ofFebruary 2010
. . . [d]id not show any kind of a leak, 

### and therefore surgery was not appropriate. That's fine."44 In its order granting a new trial, the court expressed concern withthe defense 

### theme that "anyinjuries sustained by [Clark] were caused byDr. Wohns."45 Butthe specific examples cited in the order are factually inaccurate. The order recites that in 

### opening statement, defense counsel "clearlystated that Dr. Wohns was at fault and caused the problems [Clark] now suffers."46 The order also purports to quote from

41 Itappears the trial court may have relied upon factual inaccuracies in Clark's earlier motion objecting to defense counsel's opening statement. Compare CP at 473, U6, with CP at 244-45. 42RP(Oct. 6, 2014) at 31-32. 43 lg\ at 28. 44 Id, at 30. 45 CP at 474, U6. 46 Id, at 473, U6.

11No. 73125-4-1/12 

### defense counsel's opening statement, when comparing the MRIs,that defense counsel 

### "specificallystated that 'this is what it looked like when he was under Dr. Teng's care' and 'this is what Dr. Wohns did to him' and 'the result of Dr. Wohns' care is this."*7 But defense counsel made no such statements. Defense counsel actually argued: There was a preoperative MRI, which I'm going to show you in a minute, and there was a postoperative MRI, and we're going to use those in a 

### second to explain what actuallyhappened in this case.'481 [T]his is what it looked like with a free spinal cord the last time Mr. Clark left [Dr.] Teng's care. . . . Here, this is after Dr. Wohns' firstand second 

### surgeries. All of this blue is cerebrospinal fluid. It's the fluid that surrounds the brain, itsurrounds the spinal cord. It's supposed to be 

### inside the yellow tube. It's not supposed to be outside. None of that was there until after he operated the first time. Then the patient comes back, has another procedure, and the spinal fluid is—actually corroded its way out the back. That's when Dr. Wohns' nurse, not Dr. Wohns, sewed him up and sent him home. 

### Then, afterthe second operation that Dr. Wohns performs, you still 

### have this problem, and it's much thicker. .
.. That's several inches of spinal fluid after Dr. Wohns. And then this is the MRI after the medical resident and Dr. Chesnut 

### repair it, and there's much less. And
.. . you'll heartestimony about the pressure caused by this CSF after the Wohns' surgery. So there's more, as you'll hear, thanjustthe pictures you have 

### seen. When people have a leak as a result of back surgery or some other 

### problem, there are symptoms. First ofall, there are what we call postural headaches. So way back here, there's no postural headache. Postural headache is when you stand up and you getthis bad headache, and when 

### they lay you flat itgoes away, and that's a primary sign of a CSF leak. There's no medical record that Mr. Clark had one ofthose. After Dr. 

### Wohns operated, he hadpostural headaches for obvious reasons.'491

47jd 48 RP (Oct. 7, 2014) at 147. 49 Id. at 151-53.

12No. 73125-4-1/13 The order also criticizes the defense PowerPoint slides: "The only purpose of 

### utilizing these comparative slides was to show that Dr. Wohns had done something improperin his surgery."50 Butthe trial court's pretrial ruling expressly authorized defense counsel to compare and contrastthe MRI images included in the PowerPoint slides. Clark's counsel also reviewed those slides before opening statements and 

### expressly advised the court therewould be noobjections during opening that the slides showed something that they had not agreed to show.51 Clark argues defense counsels' opening statement implied fault byDr. Wohns. Butthe mere mention of Dr.Wohns's name when comparing the MRI images did not 

### imply a breach of the standard of care. And the mere fact of postoperative 

### complications with no evidence of a breach ofthe standard of care does notimplyfault. Thetrial court expressly authorized the defense to compare the MRI images and contend that Dr.Wohns's surgeries were not appropriate. 

### Second, the court's order indicates that defense counsel improperly insinuated in 

### opening statement thatDr. Wohns violated the standard of care bysuggesting he allowed a nurse to stitch up and release Clark and that even a student doctor was able 

### tofix a problem thatDr. Wohnsdid notfix. The specific statements in opening were: Then the patient comes back [to Dr. Wohns], has another procedure, and 

### the spinalfluid is—actually corroded its way out the back. That's when Dr. Wohns's nurse, notDr. Wohns, sewedhim up andsenthimhome.[52]

50 CP at 473, H6. 

### 51 Additionally, Clark's counsel did not object before orduring the opening statement. 

### 52 RP (Oct. 7, 2014) at 152 (emphasis added).

13No. 73125-4-1/14 And then this is the MRIafterthe medical resident and Dr. Chesnutrepair it, and there's much less. And you can see where you'll heartestimony 

### about the pressure caused by this CSF after the Wohns's surgery.'531 The trial court noted that these comments were examples ofthe defense theme that 

### "any injuries sustained bytheplaintiffwere caused by Dr. Wohns, notthedefendant."54 But Clark does not contend that the defense statements about the assistant and 

### resident were factually inaccurate. Nordid Clarktimely object to statements about the assistant and the resident. And incondemning the defense theme that Dr.Wohns 

### caused the injuries, the court did not reconcile or even mention itsprior ruling 

### authorizing the defense to contestcausation, to dispute thatDr. Teng caused theinjury, and to argue thatDr. Wohns's surgeries were notappropriate. Further, thetrial court 

### did not identifythe references to the assistant and residentas independent acts of misconduct that alone wouldsupport a newtrial. We cannot ignore the factual 

### inaccuraciesin the keyexamples ofmisconduct identified bythe trial court, or thetrial 

### court'sruling authorizing the defense causationtheory thatDr. Wohns's surgeries were inappropriate. In thissetting, counsel's alleged insinuations offault are nottenable

reasons for a new trial. 

### Third, the ordergranting a newtrial refers toviolations of the "abovethe waist" 

### limitation, "althoughto amuch lesserextentthan theaccusations against Dr. Wohns."55 The orderspecifically refers to defense counsel's opening statementregarding "Clark's 

### priormedical conditions 'abovethe waist', contraryto the Court's priorrulings."56 But
53 id, (emphasis added). 54 CP at 473-74, %6. 55 id, at 474, 8. 56 Id.

14No. 73125-4-1/15 

### defense counsel merely toldthejury in opening about Clark's 2008 "problems with his 

### upper spine that were causing symptoms in hislegs."57 Leg problems are 'belowthe waist' symptoms. Dr. Teng acknowledges that eliciting testimony about headaches 

### related to the sleep apnea machine Clark used while in the hospital without first 

### obtaining the trial court's approval was a violation of the "above the waist" limitation, but contends there was no prejudice. Clark, on the other hand, notes that we must give great deference to the trialcourt's finding of prejudice. 

### While we grant "great deference" to the trial court on the scope ofmisconduct 

### andresulting prejudice, it isnot absolute deference. In this case, thecourt's finding of prejudice iscontraryto therecord. Specifically, theplaintiffs exhibits included express 

### statements thatDr. Teng had seen Clark "in the pastfor cervical problems"58 and that Clarkcomplained "ofsleep apnea, CPAP machine."59 Even underthedeferential standardfor reviewing prejudice, Clark cites noauthority thatprejudice existswhen the 

### sametestimony alleged to be defensemisconductis alsobeforethejury in theform ofa 

### plaintiff's exhibit. Clark's sleep apneaand Dr. Teng's priortreatmentofClarkfor conditions unrelated to his low back problem were before the jury in Clark's exhibits. It
was an abuse of discretion to conclude that the same information prejudiced the
outcome ofthis trial. 

### Fourth, Clark offers numerous other illustrations of alleged misconduct. Butin 

### applying the abuse ofdiscretion standard, we are focused on thetrial court's reasons for a new trial. The trial court referred to a defense theme, but did not incorporate,
57 RP (Oct. 7, 2014) at 147. 58 Ex. 1 at 15. 59 Ex. 3 at 9.

15No. 73125-4-1/16 

### adopt, or allude to other specific alleged acts of misconduct listedin the motion for new trial. Clark offers no authority requiring us to speculate what other alleged acts of misconduct the trial court did or did not rely upon. 

### Finally, the order granting a new trial recites that in closing "[d]efense counsel 

### continued with his theme of non-party fault."60 The orderdoes not identify any particular examples. Parts of the defense closing argument did point to limited testing and documentation by Dr. Wohns, Clark's postural headaches only after Dr. Wohns's 

### surgeries, and that "someone else's surgeries ontwo occasionsfailed."61 Butthe defense closing argument also expressly disclaimed any theory of nonpartyfault: If Dr. Wohns takes him down a different path, and that path causes his 

### problems, then it's notDr. Teng's fault. You can have cause withoutfault. We didn't come here to play the blame game, but we did come here to 

### show you, as part of ourobligation, that things which were done after the 18th were the cause of his current symptoms. Andthat's the whole 

### point.'621 

### [A]nd he had a bunch of problems related to a surgery that several doctors 

### wouldn't haveperformed, wasn'tnegligent, butitdid cause hisproblem.'631 In this setting, absent any indication by the trial court of specificexamples of misconduct in closing argument, a general reference in the order granting newtrial is not compelling. CONCLUSION 

### The order granting a newtrial heavily relies upon inaccurate facts and ignores the trial court's ruling authorizing the defense to challenge causation byattributing
60 CP at475, H11. 61 RP(Oct. 22, 2014) at 1540. 62 Id. at 1539. 63 Id. at 1543.

16No. 73125-4-1/17 

### Clark's injuries to inappropriate surgeries by Dr. Wohns. These inaccuracies and inconsistencies in the new trial order call into doubt the trial court's reliance upon a theme of misconduct. We conclude the trial court abused its discretion in ordering a new trial. We reverse both the trial court's order granting a new trial and thejudgment awarding terms to Clark. We remand for reinstatement ofthejury verdict.

WE CONCUR: 

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