H;.£U CJU-rtTQr APPEALS Hi',' 201*1 MAR 2U AH 9= Oo

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

JAMES WRIGHT and SUSAN WRIGHT, Appellant,

KEVIN BEDLINGTON and JANE DOE BEDLINGTON, Respondent. No. 69800-1-1

DIVISION ONE

UNPUBLISHED OPINION FILED: March 24, 2014 Spearman, A.C.J.

— James and Susan Wright sued Kevin Bedlington and his spouse for a "whiplash" injury caused by a motor vehicle accident in which Mr. Bedlington rear-ended Mr. Wright. The Bedlingtons conceded liabilityand the Wrights' 

### claims for damages were tried to a jury. Mr. Wright sought $185,000 in special and general damages and his wife sought $45,000 for loss ofconsortium. The Bedlingtons 

### asked thejury to award Wrightmedical expenses of$3,950.50 and $4,250 ingeneral damages, a total of$8,200.50. Thejury awarded the amount suggested by the Bedlingtons. The Wrights moved for a new trial on grounds that the evidence was insufficient to support the verdict and the award was so "inadequate as unmistakably toNo. 69800-1/2


### indicate that the verdict must have been the result ofpassion or prejudice."1 CR 59(a)(5)(7), RCW 4.76.030. The trial court denied the motion and the Wrights appealed. We affirm. FACTS On May 27, 2009, James Wright was rear-ended while driving his Toyota Land Cruiser. The other driver, Kevin Bedlington, had been going approximately 25 miles per 

### hour and admittedly failed to stop in time to avoid hittingthe rear ofMr. Wright's vehicle, which was stopped in traffic. Mr. Wright went to the emergency room after the accident. Within an hour or so, he walked out ofthe emergency room; his wife drove him back to the accident scene 

### and Mr. Wright drove the Land Cruiser home. The next day, Mr. Wright, who is a trial 

### lawyer, went to his office and worked a half day; he put in a short day, on the following day, a Friday. Mr. Wright was back at work, putting in "pretty ordinary or regular business hours" on the following Monday. Verbatim Report ofProceedings (VRP) at 98- 

### 99. On June 10, 2009, approximately two weeks after the accident, Mr. Wrightsaw his 

### longtime family physician, Dr. Dickson, regarding some lingering tenderness at the back of his neck. During the exam, Mr. Wright related experiencing temporary pains in areas otherthan the neck immediatelyfollowing the accident; however, he informedDr.

1Alternatively, theWrights also moved to increase the verdict to $90,000 and $10,000, respectively forMr. and Ms. Wright underRCW 4.76.030. However, the statute provides that the court may only grant a motion to increase or decrease theverdict ifitfirst determines that a newtrial is warranted and then only ifthe partyadversely affected consents to the modification. Here, even ifthetrial court had been inclined to grant the motion for a newtrial, there is noindication in the record of the Bedlingtons' consent to increase theverdict. Thus, thetrial courthad noauthority to grantthe motion. Green v. McAllister. 103Wn. App. 452, 462, 14 P.3d 795 (2000). Accordingly, we do notaddress the Wrights' alternative motion in our consideration of this appeal.No. 69800-1/3
Dickson that these pains had already dissipated. Mr. Wright denied experiencing any weakness, numbness, headaches, or dizziness following the accident. When Dr. 

### Dickson examined Mr. Wright, he found no irregularities. Dr. Dickson did note residual tenderness at the "posterior aspect of [the] C7" vertebra. VRP at 184. Dr. Dickson 

### concluded that Mr. Wright had "mild residual symptoms that were mild in nature" from the accident and expected he would "fully recover". VRP at 187. Given the mild nature 

### ofMr. Wright's complaints and Dr. Dickson's findings on examination, Dr. Dickson did 

### not feel prescription medications were necessary. He suggested that Mr. Wright take over the counter medication for any pain and suggested a follow up visit in 30 days. 

### Approximately two months later, on August 19, 2009, Mr. Wright returned to Dr. Dickson. At that time he complained about a pain at the back of his neck. Mr. Wright 

### reported improvement in both range ofmotion and generaldiscomfort. Dr. Dickson 

### diagnosed a "cervical strain" andtold Mr. Wrightto return as needed. Dr. Dickson also referred Mr. Wright to Dr. Goldman, a board certified neurosurgeon. Dr. Dickson did nottreat Mr. Wright again until March 19, 2010, when Mr. Wright 

### soughttreatmentforflu-like symptoms that appeared to be caused by a viral orbacterial infection.2 Dr. Dickson prescribed an antibiotic and never treated Mr. Wright after this
visit. 

### On Dr. Dickson's referral, Mr. Wright saw Dr. Goldman inOctober 2009 and 

### again in December 2009. Dr. Goldman did nottestify attrial, buthis reports and records were admitted into evidence. Mr. Wright initially complained to Dr. Goldman of neck 2Mr. Wright's treating neurologist, Dr. Baker, laterobserved thatthis infection could have beena 

### precursortothebrachial plexus neuritis thatcaused Mr. Wright's hospitalization only ten days later.No. 69800-1/4 pain, headaches and generalized ache in his upper extremities. Exhibit 4. Mr. Wright filled out a Magnetic Resonance Imaging (MRI) screening questionnaire in connection with Dr. Goldman's treatment that asked him to show, on an outline of the human body, where his problems were located. He placed a single "X" at the base ofthe back ofthe neck. Exhibit 8. Dr. Goldman diagnosed Mr. Wright with a traumatic disc herniation at the C5-6 vertebrae, which Dr. Goldman opined was the result oftrauma sustained inthe 2009 auto accident.3 Exhibit 5. Dr. Goldman also determined that Mr.Wright was having a "good response to 

### conservative management.. . ." Exhibit 5. His pain was less severe and the diffuse 

### aches in his arms were lessening, though he had occasional episodes of paresthesia4 in the arms. Given his positive response to treatment, Mr. Wright was instructed to 

### continue with neck exercises and return only if he "ha[d] a progression ofsymptoms and 

### want[ed] to be re-evaluated . . . ." Exhibit 5. Mr. Wright did not seek further medical treatment related to the accident until late March of2010, approximately three months after his last visit to Dr. Goldman. Dr. Dean Shibata is a board certified neuroradiologist and an associate professor 

### at the University of Washington who specializes in interpreting MRI and Computerized Tomography (CT) scans of the brain, neck and spine. At the request of the Bedlingtons, Dr. Shibata reviewed an x-ray and a number ofMRI scans ofMr. Wright in preparation 3Dr. Goldman diagnosed the bulging C5-6 disc based on review of an MRI scan. Later, Dr. Shibata, a neuroradiologist, reviewed the scans andconcluded that the bulging disc was theresult of age-related degenerative changes as opposed to trauma and was notrelated to the accident. 4Asensation ofpricking, tingling, or creeping on the skinthat has noobjective cause and usually associated with injury orirritation ofa sensorynerve ornerve root. WEBSTERTHIRD INTERNATIONAL DICTIONARY 1641 (2002).No. 69800-1/5
for trial. According to Dr. Shibata, the records disclosed bony changes to the C5-6 region of Mr. Wright's spine; he concluded that these changes were indicative of agerelated degeneration as opposed to trauma. Dr. Shibata testified that he was "confident the bony changes didn't occur over weeks or even months. They're changes that occurred over years." VRP at 305. Dr. Shibata also testified that, while he did not see specific evidence of a 

### "whiplash soft tissue injury," that is something that could neither be confirmed nor excluded based on the records before him. VRP at 309. However, he opined that such 

### an injurywould not have caused the herniated C5-6 disc, given the bony changes 

### evident in the imaging, which could only have occurred over a significant period of time. VRP at 298, 302-09. Further, he concluded that the herniated disc was most likely asymptomatic. VRP at 298, 302-07. On March 29, 2010—ten months after the auto accident and three months after 

### Mr. Wright's last medical appointmentfor accident-related injuries—Mr. Wrightwas 

### having dinner with family when he began to experience severe pain in his neck, shoulders, and down his leftand right arms. "[T]he amount of pain kept ratcheting up and up and up." VRP at 108. Mr. Wrightwas in such severe pain that he believed he would die. That night, he went to the emergency room for treatment. 

### Mr. Wrightspentthree days in the hospital. During that time, he experienced "unique severe pain." VRP at 173. At one point, the pain was so severe that he lost consciousness. During his hospital stay, Mr. Wrightwas treated by Dr. Baker, the 

### neurosurgeon on call when he was admitted to the hospital. Dr. Bakertestified via videoNo. 69800-1/6 deposition that he diagnosed Mr.Wright with "acute idiopathic brachial plexitis," a condition of unknown origin, which causes sudden inflammation of the bundle of nerves stemming from the spine down under the clavicle into the arms. After he was released from the hospital, Mr. Wright sought second opinions from two neurologists, Drs. 

### Mackay and Mayadev. Both confirmed the diagnosis of brachial plexus neuritis (BPN).5 At trial, Mr. Wright recalled that he was out ofthe office for "two complete weeks" following the onset of BPN. Ms. Wright testified that he was "mostly at home" in the two months following his hospitalization; that "he was having severe pain," and that he was having difficulty eating, sleeping or "[djoing much at all." VRP at 174. As a result, Ms. Wright took time off from work to care for her husband. Ms. Wright has observed that, since his hospitalization on March 29, 2010, Mr. Wright has had ongoing "nerve pain" in his hands, forearms, shoulders and upper arms. This nerve pain affects "his arms and strength" and limits his activities. VRP at 176. 

### Virginia Sullivan, Mr. Wright's mother-in-law; Chris Haugen, Chief of Police for Sumas, Washington and an acquaintance ofMr. Wright; Joye Marie Crabtree and 

### Jayna Cassavant, coworkers ofMr. Wright, each testified that following the May 2009 accident, Mr. Wright appeared to be in pain, exhibited symptoms ofheadache, neck ache, and was unable to lift his arms high or carry heavy loads. These witnesses were not asked to and did not draw a distinction between Mr.Wright's symptoms before and after the onset of BPN.

5The parties and their experts use the terms "acute idiopathic brachial plexitis" and "brachial plexusneuritis" interchangeably. See e.g.. CP at 127-31, 140; VRP at 116, 123-26, 174; Briefof Respondent at 9-10.No. 69800-1/7
Dr. Bakertestified that Mr.Wright told him that his problems from the car accident had been largely resolved before the onset of BPN on March 29, 2010. Further, Dr. Baker explained that, in his opinion, the car accident was unrelated to the onset of BPN. His opinion was based on Mr. Wright's reported improvement of his symptoms after the accident with conservative measures like "physical therapy, time and anti-inflammatory medications," and on his review of Mr. Wright's MRI. CP at 126- 31. Dr. Baker also testified that close to 40 percent of patients who suffer from BPN remain symptomatic after a bout with the disease. Specifically, he stated that they could be left with chronic neuropathic pain, weakness, and numbness—symptoms identical to those complained of by Mr. Wright. Dr. Frederick Braun, a neurologist, also testified on behalfofthe Wrights. Mr. Wright saw Dr. Braun inAugust 2010 and again in September 2012 on referral by his attorneys for "independent medical exams." VRP at 216-17. Dr. Braun testified that as part ofthe exam procedure, he had Mr. Wright prepare and sign a sketch ofthe human body, similar to the one Mr. Wright had prepared for Dr. Goldman in 2009. This time, 

### instead of placing a single "X" at the base ofthe back of his neck to indicate the area 

### that was causing him pain and concern, Mr. Wright drew indozens of marks to indicate pain extending over the front and back of his shoulders, his upper back and collar bone, and radiating up and down the front and back of both arms. 

### In mid-March 2012, Mr. Wright sought treatment from a physical therapist. The therapist's notes, which were contained in Dr. Braun's notes regarding Mr. Wright, stated the reported "date ofonset" ofMr. Wright's symptoms was "[t]wo years ago."No. 69800-1/8

VRP at 287. Dr. Braun confirmed that this notation meant March 2010—the time of Mr. Wright's hospitalization for BPN. Dr. Braun also testified that the symptoms of which Mr. Wright complained are 

### commonly associated with BPN. He further testified that the disease is of 

### "[undetermined etiology" and that he found no link between the occurrence of the 

### disease inMr. Wright's case and the May 2009 auto accident. VRP at 233, 252-56. He also confirmed that "ninety to ninety-five percent of people with neck injuries" of the sort 

### Mr. Wright reported after the auto accident "do heal within three to six months," although he maintained that Mr. Wrightwas in the "five to ten percent category" of people who do

not. VRP 289. 

### During closing argument, theWrights asked thejury to return verdicts of $185,000 on Mr. Wright's claims and $45,000for Ms. Wright's loss ofconsortium claim. The Bedlingtons argued that because Mr. Wright ended treatment forinjuries associated with the auto accident in December 2009, he was entitled to no more than 

### reimbursementfor medical bills incurred and pain and suffering endured up to that time. 

### They urged thejury to award $3,950.50, and, $4,250, respectively—a total of$8,200.50. TheBedlingtons made noproposal regarding Ms. Wright's loss ofconsortium claim. Thejury returned a verdictfor the plaintiffs in the amount of$8200.50 for Mr. 

### Wright andnothing for Ms. Wright. TheWrights moved for a new trial pursuanttoCR 59 and RCW 4.76.030. The trial court denied the motion. The Wrights appeal the verdict and the trial court's denial oftheir motion.No. 69800-1/9

DISCUSSION 

### The Wrights maintain the trial court erred when it denied their motion for a new trial because the evidence is insufficient to support the verdict and because the verdict


### was so "inadequate as unmistakably to indicate that the verdict must have been the result ofpassion or prejudice." CR 59(a)(5). We affirm. Sufficiency ofthe Evidence 

### On motion of an aggrieved party, a verdict may be vacated and a newtrial 

### granted where "there is no evidence or reasonable inference from the evidence tojustify the verdict... ." CR59(a)(7). We review the denial of such a motion forabuse of discretion. An abuse ofdiscretion occurs when a decision is manifestly unreasonable or 

### exercised on untenable grounds orfor untenable reasons. Maverv. Sto Indus.. Inc., 156 Wn.2d 677, 684, 132 P.3d 115 (2006). In evaluating whether substantial evidence 

### supports thejury's verdict, weview theevidence in thelight mostfavorable to the 

### nonmoving party. Herriman v. May. 142Wn. App. 226, 232, 174 P.3d 156 (2007). The law gives a strong presumption ofadequacy to theverdict. Cox v. Charles Wright Academy. Inc., 70 Wn.2d 173, 176, 422 P.2d 515 (1967). A trial court has no discretion 

### to disturb a verdict that iswithin the range of evidence. Herriman, 142Wn. App. at 232. 

### TheWrights contend thatundisputed evidence shows the May 2009 auto accidentcaused Mr. Wright significant pain and the disruption of hisfamily life from the date ofthe accidentthrough the date oftrial. They also contend there was noevidence, 

### asidefrom statistics onrecovery rates thatMr. Wright's ongoing symptoms were caused 

## by his BPN. Accordingly, they argue thejury's verdict, which appears to have concludedNo. 69800-1/10
that most, if not all, of Mr. Wright's injuries from the accident were resolved before the onset of BPN, is unsupported by any evidence. Further, they assert that because the 

### damage award is lowerthan the minimum amount supported by the evidence, the trial court erred when itdenied the motion for a new trial. We reject each of these contentions. 

### The Wrights correctly argue that itwas undisputed at trialthat Mr. Wright suffered


### an injury caused by the accident withMr. Bedlington. Butthere was significant dispute about whether Mr. Wright had largely recovered from the injury caused by the accident before the onset of BPN and about the cause of Mr. Wright's ongoing symptoms. 

### Viewing the evidence in the light most favorable to the nonmoving party—here, the 

### Bedlingtons—we conclude there was ample evidence from which the jurycould have reasonably determined that the injury Mr. Wright sustained in the auto accident, was resolved by December 2009 and that any ongoing symptoms were caused by the onset
of BPN. 

### Dr. Dickson, who treated Mr. Wrightfollowing the accident, testified that within twoweeks of the accident, Mr. Wright reported that pain inareas other than the neck 

### had already dissipated and he denied anyweakness, numbness, headaches or dizziness. The doctor concluded that Mr. Wright had onlymild residual symptoms from the accident and would fully recover. 

### Dr. Goldman, who examined Mr. Wright inOctober and December 2009, and whose treatment records were admitted at trial, reported that Mr. Wrightwas responding 

### well to "conservative management." Exhibit 5. His pain was less, with only occasional

10No. 69800-1/11 episodes of parethesia. There was also evidence that Mr. Wright sought no further medical attention for these symptoms until after the onset of BPN. Dr. Baker, the neurologist on call when Mr. Wright was admitted to the hospital in late March 2010, and who first diagnosed Mr. Wright with BPN, testified that Mr. Wright reported that his symptoms from the car accident had been largely resolved before the onset of BPN. While he reported "some on-and-offproblems with his neck," he was not having any radiating pain in his arms. CP at 131. Furthermore, the symptoms described by Mr. Wright after the accident, were 

### entirely different than those he described after developing BPN. Following the accident Mr. Wright missed only a few hours ofwork, his wife took no time offfrom work to care for him and he described no inability to perform his usual household duties. Incontrast, 

### following the onset ofBPN, Mr. Wright missed at least twofull weeks ofwork, Ms. 

### Wright missed work to care forhim and there was testimony about his inability to contribute around the house. In addition, when asked by Dr. Goldman, prior to the onset 

### of BPN, to indicate where his problems were located on the outline of a human figure, 

### he placed one "X" at the base of the neck. Butwhen he was asked to do the same by Dr. Braun, after the onset of BPN, Mr. Wright drew dozens of marks to indicate pain 

### extending over his shoulders, upper back, collarbone and up and down both arms. Moreover, Dr. Braun conceded that close to 40 percent of the victims of BPN sufferfrom 

### the very same symptoms experienced byMr. Wright since the onset ofthe disease in May 2010.

11No. 69800-1/12 

### Finally, the testimony ofDr. Shibata directly contradicted Dr. Goldman's theory 

### that the May 2009 accident caused the injury to Mr. Wright's spine. Dr. Shibata opined that, although Mr. Wright may have suffered some softtissue injury from the accident, 

### anydeformity in Mr. Wright's spine was caused by age and was unrelated to the
accident. 

### TheWrights pointto the evidence supporting their theory of the case, and argue the favorable inferences to be drawn from that evidence. But thejury is the ultimate 

### finder of fact. In reaching itsverdict, it is the jury'sduty to weigh all of the evidence, 

### creditordiscreditthe testimony as it sees fit, and draw reasonable inferencesfrom the 

### evidence, while rejecting otherpossible inferences. James v. Robeck, 79Wn.2d 864, 

### 870, 490P.2d 878 (1971). Because theevidence before thejury onhow long Mr. Wright suffered from the effects of the auto accident and whether Ms. Wrightsuffered a loss of 

### consortium was disputed, wewill not, on appeal,disturb thejury's resolution ofthese issues. Davenport v. Taylor, 50 Wn.2d 370, 378, 311 P.2d 990 (1957). Adequacy ofthe Damage Award 

### The Wrights' alsoclaim thatthejury's damage award was so inadequate as unmistakably toindicate thattheverdict must have been theresult ofpassion or 

## prejudice. Again, we disagree. The law gives astrong presumption ofadequacyto the verdict. "'Regardless ofthe court's assessment ofthe damages, itmay not, after afair trial, substitute its conclusions forthat ofthejury on the amountofdamages. When the evidence concerning injuries isconflicting, thejury decides whethertheinjuries are 

## insignificant, minor, moderate, orserious, and itdetermines the amountofdamages.'"

12No. 69800-1/13

Bunch v. King County Dep't of Youth Services. 155Wn.2d 165, 174, 116P.3d381 (2005) (quoting Cox, 70 Wn.2d at 176). Ifthe verdict is reasonably within the range of proven damages then itcannot be found, based solely on the amount ofthe award that the verdict was unmistakably so excessive or inadequate as to show that thejury had been motivated by passion or prejudice. James, 79 Wn.2d 870-71. The jury's damage award in this case was well within the range of the evidence. There was evidence showing that Mr. Wright's medical bills for treatment reasonably related to the accident from the date of the accident until he stopped treatment in December 2009 totaled $3950.50. Ifthejury concluded, as argued by the Bedlingtons, that Mr. Wright's injuries resulting from the accident were resolved around the time he stopped treatment and that Mr. Wright was also entitled to $4250 in general damages, the award of $8200.50 is consistent with the evidence before the jury. 

### Similarly, the award of no damages for Ms. Wright's loss ofconsortium claim is 

### within the range ofevidence. Prior to the onset of BPN, there was no evidence that Ms. Wright suffered any loss ofconsortium. According to their own testimony, following the accident, Mr. Wright leftthe emergency room, got inthe accident vehicle and drove home. He went to work the next day and did not miss work, other than taking the time for a few visits to the doctor's office and physical therapy. Ms. Wright did not take time off from work to care for him or hire a third party to care for him. Thejury may well have 

### concluded that the quality oflife for the Wrights did not change in any significant way 

### during the six to seven months that Mr. Wright sought treatment for cervical strain after the accident. It is only after Mr. Wright was strickenwith BPN that he missed substantial

13No. 69800-1/14
time from work, was physically unable to do many things like helping around the house, and Ms. Wright had to miss work to care for him. Ifthejury concluded that the debilitating symptoms Mr. Wright complained ofwere caused by BPN and not the accident, then the decision to award no loss of consortium damages to Ms. Wright was well within the range of evidence. 

### The Wrights also argue that the jury's consideration ofdamages was prejudiced 

### by one sentence of improper testimony. During pretrial motions the trial court granted the Wrights' motion to exclude evidence ofMr. Bedlington's personal history. Nonetheless, on direct examination, he testified: 

### Iworked in commercial lending for 12 years. And at this point I'm 

### currently unemployed pursuing new employment in lending. VRP at 330. The trial court sustained the Wrights' objection to the testimony and 

### instructed the juryto disregard it. TheWrights did not move for a mistrial. They now 

### argue thattheverdict demonstrates thejury ignored thecourt's curative instruction and that Mr. Bedlington's impropertestimony motivated thejury to make an inadequate damage award. The argument is withoutmerit. 

### It ispresumed, absent a contrary showing, that thejury followed the court's 

### instruction todisregard the impropertestimony. Dauphin v. Smith. 42Wn. App. 491, 713 P.2d 116(1986). Because, as previously discussed, there issubstantial evidence to 

### supportthejury's damage award, theWrights cannot showthatthepresumption should
not apply in this case.

14No. 69800-1/15

CONCLUSION The Wrights fail to demonstrate that the evidence was insufficient to support the verdict or that the damages awarded are so inadequate as unmistakably to indicate that the amount thereof must have been the result of passion or prejudice. Accordingly, we conclude that the trial court did not abuse its discretion when itdenied the Wrights' motion for a new trial.6 Affirm.

WE CONCUR ' 

# \pjaakfl.vk* iQC 

# <L

6TheWrights also cite the trial court's orderdenying the motion for newtrial, which includes the statement, "[i]fthe courthad the power underthe law ... to grant an additur itwould do so." CP at286; VRP at412-413. They suggest this shows the courtmisperceived itsauthority to grant theirmotion. The statementmerely recognizes, however, that wheresubstantial evidencesupports thejury's verdict and the damageaward iswithin the range ofevidence presented to thejury, thetrial courthas noauthority, after a fair trial, to alter the jury'sdecision. James, 79Wn.2d at 869. Thus, even though thetrial court may have reached a different result, it recognized that, under the circumstances, itwas bound bythe jury's decision.

15