IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

RAY GARBAGNI,

Appellant,

v.

KAREN DOVE and JOHN DOE DOVE, 

individually and on behalf of their marital 

community thereof, and 

APPRENTICESHIP AND 

NONTRADITIONAL EMPLOYMENT 

FOR WOMEN (ANEW), a corporation,

Respondents.

DIVISION ONE

No. 84335-4-I

UNPUBLISHED OPINION

DWYER, J. — Ray Garbagni sued Karen Dove and her employer for injuries 

allegedly sustained in an automobile collision. The jury returned a defense verdict. On 

appeal, Garbagni argues that the trial court erred by limiting his damages claim to a 

finite period of time and instructing the jury accordingly. Because the jury rejected 

Garbagni’s claim that the collision proximately caused his alleged injuries, he cannot 

establish that he was prejudiced by the trial court’s rulings. We therefore affirm.

I

On August 16, 2017, Ray Garbagni’s vehicle was rear-ended by a vehicle driven 

by Karen Dove while she was acting in the course of her employment with 
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Apprenticeship and Nontraditional Employment for Women (ANEW). Dove admitted 

liability but disputed causation and damages. 

In June 2020, Garbagni sued Dove and ANEW (collectively Dove) for personal 

injuries allegedly suffered in the collision. Garbagni obtained the opinion of Dr. David 

Widlan, a clinical psychologist, regarding the nature and cause of his injuries. After 

reviewing medical records and conducting an evaluation, Dr. Widlan opined in a report 

dated June 18, 2021, that Garbagni suffered from “mild neurocognitive disorder due to 

traumatic brain injury.” Dove subsequently moved to limit Dr. Widlan’s testimony under 

ER 401, ER 403 and ER 703 on the ground that, as a psychologist, Dr. Widlan was not 

qualified to diagnose traumatic brain injury causally related to the automobile collision. 

The trial court denied Dove’s motion to limit Dr. Widlan’s causation testimony. 

Trial took place during seven days from June 21 through July 1, 2022. As to the 

duration of Garbagni’s damages, Dr. Widlan testified that Garbagni’s symptoms 

persisted up until the time of his report. But he could not “say that [Garbagni’s]

symptoms are occurring today because I haven’t interviewed him today.” Garbagni and 

several of his family members testified that he has suffered persistent mental and 

emotional problems since the collision occurred. Dove’s expert witnesses, neurologist 

Dr. Linda Wray and neuropsychologist Dr. Elizabeth Ziegler, testified that the evidence 

did not support a finding that the collision caused a concussion or a traumatic brain 

injury. 

Following the close of evidence, Dove moved to dismiss Garbagni’s claims under 

CR 50 on the ground that Garbagni presented no medical testimony to support 

causation of any injury, let alone permanent brain damage. To the extent that the court 
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denied the motion, Dove sought an order prohibiting an award of general damages 

beyond June 12, 2021, which was the date Dr. Widlan last interviewed Garbagni. The 

trial court denied Dove’s CR 50 motion to dismiss Garbagni’s claims but ruled that 

general damages would be prohibited beyond June 12, 2021. The court instructed the 

jury accordingly. 

The jury returned a unanimous verdict in favor of Dove. Garbagni appealed. 

II 

Garbagni argues that the superior court erred by granting Dove’s CR 50 motion 

to limit his general damages claim to the period between the collision and June 12, 

2021. This is so, he contends, because Dr. Widlan’s expert testimony and the Garbagni 

family’s lay testimony provided sufficient evidence to prove that he suffered ongoing 

collision related symptoms past that date. Because Garbagni has not established that 

he was prejudiced by the trial court’s ruling, he is not entitled to appellate relief. 

A party seeking reversal based on a trial court’s exclusion of evidence must 

demonstrate prejudice, “for error without prejudice is not grounds for reversal.” Barriga 

Figueroa v. Prieto Mariscal, 193 Wn.2d 404, 415, 441 P.3d 818 (2019). As the plaintiff,

Garbagni bore the burden to prove that he suffered injuries proximately caused by 

Dove’s negligent conduct. See Schooley v. Pinch’s Deli Mkt., Inc., 134 Wn.2d 468, 474, 

951 P.2d 749 (1998) (“In order to prove actionable negligence, a plaintiff must establish 

the existence of a duty, a breach thereof, a resulting injury, and proximate causation 

between the breach and the resulting injury.”). 

Here, the trial court generously permitted Dr. Widlan to testify that Garbagni 

suffered from “mild neurocognitive disorder due to traumatic brain injury.” In so ruling, 
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the court allowed the jury to consider whether to accept or reject Dr. Widlan’s opinion 

regarding the nature, extent, and cause of Garbagni’s injuries. See Larson v. Georgia 

Pac. Corp., 11 Wn. App. 557, 560, 524 P.2d 251 (1974) (“[O]nce the expert testimony is 

admitted into evidence, its weight and credibility is like all other evidence to be 

considered by the jury.”). In rendering a unanimous verdict in favor of the defendants, 

the jury necessarily determined that Garbagni did not meet his burden of proof. It 

therefore did not reach the question of damages. Allowing the jury to consider whether 

Garbagni’s injuries persisted beyond the date of Dr. Widlan’s report would not have 

changed this result. Garbagni cannot establish that he was aggrieved in any way by the 

trial court’s ruling. He is not entitled to appellate relief. 

III

Garbagni also argues that jury instruction 11, which limited any damages award 

to pain and suffering experienced on or before June 12, 2021, amounted to an 

unconstitutional comment on the evidence. This court reviews whether a jury instruction 

amounts to a comment on the evidence de novo. State v. Butler, 165 Wn. App. 820, 

835, 269 P.3d 315 (2012). An impermissible comment on the evidence is one that 

conveys the judge’s attitude on the merits of the case or permits the jury to infer 

whether the judge believed or disbelieved certain testimony. State v. Deal, 128 Wn.2d 

693, 703, 911 P.2d 996 (1996).

Here, jury instruction 11 reflected the trial court’s determination that the evidence 

was insufficient to support a finding that Garbagni’s injuries persisted beyond the date of 

Dr. Widlan’s report. The instruction did not otherwise limit the jury’s ability to consider

Dr. Widlan’s opinion that Garbagni suffered from “mild neurocognitive disorder due to 
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traumatic brain injury” as a result of the collision. It did so, and awarded nothing. 

Again, Garbagni shows no ground for appellate relief. See State v. Levy, 156 Wn.2d 

709, 725, 132 P.3d 1076 (2006) (judicial comment is not prejudicial where the record 

affirmatively shows no prejudice could have resulted). 

Affirmed.

WE CONCUR: