Andrea Erickson, App. v. James Holstine, D.o., Res.
74816-5
| Wash. Ct. App. | Dec 18, 2017Background
- Andrea Erickson underwent arthroscopic subacromial decompression by Dr. James Holstine in April 2010 and developed severe postoperative shoulder pain and a later-diagnosed acromial fracture.
- Erickson sued for medical negligence in April 2013; PeaceHealth disclosed Dr. Richard Kirby as a defense expert in June 2015.
- At summary judgment, Erickson filed a supporting expert declaration (Dr. Graboff); PeaceHealth filed Dr. Kirby’s declaration after its response and after Erickson moved to strike it as untimely.
- The trial court considered CR 6(b)(2) excusable neglect arguments orally, applied Burnet factors, allowed Dr. Kirby’s declaration (with deposition as a lesser sanction), and denied Erickson’s summary judgment motion.
- At trial both sides’ experts testified; the jury found no negligence by Dr. Holstine. Trial court denied post-trial motions and the Court of Appeals affirmed.
Issues
| Issue | Erickson's Argument | PeaceHealth's Argument | Held |
|---|---|---|---|
| Whether the court abused discretion by admitting Dr. Kirby’s untimely declaration (CR 6(b)(2)) | PeaceHealth failed to file a written motion showing excusable neglect; oral argument insufficient | Oral argument at hearing satisfied CR 6(b)(2) because it addressed excusable neglect and offered to supplement | Court: oral presentation sufficed; no abuse of discretion admitting the declaration |
| Whether the trial court properly applied Burnet factors before refusing to strike untimely evidence | Untimely filing should have been stricken; prejudice and willfulness supported striking | Court considered Burnet (prejudice, willfulness, lesser sanctions) and ordered deposition instead of striking | Court: Burnet factors were considered and supported allowing declaration with lesser sanction |
| Whether Dr. Kirby’s declaration/testimony had adequate factual foundation and admissibility under ER 702 / Frye | Declaration/testimony relied on insufficient factual support, abstracts, and "junk science" | Kirby had relevant qualifications, reviewed records/images, relied on accepted methods and experience; not novel science | Court: Kirby qualified; opinions based on case facts and experience; Frye inapplicable; testimony admissible |
| Whether jury instruction (WPI 105.08 supplement re: exercise of judgment) misstated standard of care | Instruction misstated law because differential diagnosis is required as part of standard of care | Supplemental instruction properly clarifies that choosing among reasonable alternatives is not actionable | Court: Instruction 11 (general standard) was proper and 13 (WPI 105.08) correctly supplemented it; no error |
| Whether verdict lacked substantial evidence / whether JML should have been granted | Evidence (e.g., delayed imaging) compelled finding of negligence as a matter of law | Testimony from Holstine and Kirby provided an alternative reasonable course of treatment and conformity with standard of care | Court: Jury verdict supported by substantial evidence; JML/new trial denied |
Key Cases Cited
- Keck v. Collins, 181 Wn. App. 67 (discussing CR 6 and untimely affidavits) (affirmed in part on review)
- Keck v. Collins, 184 Wn.2d 358 (treatment of Burnet factors for excluding untimely evidence)
- Burnet v. Spokane Ambulance, 131 Wn.2d 484 (requirement to consider lesser sanctions, willfulness, and prejudice before excluding evidence)
- Watson v. Hockett, 107 Wn.2d 158 (standards for supplemental instructions on physician exercise of judgment)
- Fergen v. Sestero, 182 Wn.2d 794 (approving WPI 105.08 as proper supplemental instruction)
- Seybold v. Neu, 105 Wn. App. 666 (expert testimony required to establish standard of care and proximate causation)
- Guile v. Ballard Cmty. Hosp., 70 Wn. App. 18 (conclusory affidavits without factual support insufficient to defeat summary judgment)
- State v. Gentry, 125 Wn.2d 570 (Frye test for novel scientific evidence applicability)
- Tokarz v. Ford Motor Co., 8 Wn. App. 645 (expert opinions that assume facts not of record may be stricken)
- Anderson v. Akzo Nobel Coatings, Inc., 172 Wn.2d 593 (ER 702/Daubert-like admissibility considerations)