Linda Yeager v. John O'keefe
48189-8
| Wash. Ct. App. | Mar 7, 2017Background
- In Jan 2011 Yeager was rear-ended by O’Keefe; she sought medical care ~2 weeks later and was later diagnosed with diffuse pain syndrome/fibromyalgia.
- Yeager sued three years later; O’Keefe admitted liability for the collision but disputed injury causation and damages.
- Yeager disclosed Dr. Eyal Kedar (her treating rheumatologist since Nov 2013) as a potential witness; Kedar’s deposition said fibromyalgia "may have been worsened" or "potentially brought on" by the accident but he could not state causation to a reasonable degree of medical certainty.
- Yeager attempted to admit Kedar’s deposition at trial under CR 32(a)(3)(B) (out-of-county witness exception) and CR 32(a)(5) (expert/healthcare professional provisions); the court excluded the deposition, finding Kedar an expert and CR 32(a)(5) applicable, and that Yeager should have secured his in-person attendance.
- Another physician, Dr. Coor, testified for Yeager based on medical records (including Virginia Mason records); the jury awarded Yeager only past medical expenses and non-economic damages totaling $2,306.40.
- On appeal Yeager argued the trial court erred by not admitting Kedar’s deposition under CR 32(a)(3)(B) and by treating him as a CR 26(b)(5) expert; the court affirmed, holding Kedar was an expert and any error was harmless.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CR 32(a)(3)(B) permits admission of Kedar’s deposition | Yeager: treating physician’s testimony falls under (a)(3)(B) (out-of-county witness/fact witness); Kimball supports non-retained treating docs as fact witnesses | O’Keefe: Kedar offered causation opinion—an expert function—so (a)(3)(B) inapplicable; (a)(5) governs experts | Court: Kedar was an expert for causation; (a)(5) applies; (a)(3)(B) does not govern here |
| Whether CR 32(a)(5) applies only to retained/CR 26(b)(5) experts | Yeager: (a)(5) limited to experts retained/produced for litigation; treating physician is not necessarily a CR 26(b)(5) expert | O’Keefe: (a)(5) governs expert depositions generally and protects against presenting expert testimony via discovery deposition without adequate notice/recourse | Court: (a)(5) properly applied; trial court reasonably found Kedar an expert for purposes of CR 32 and could exclude deposition |
| Whether Kedar’s deposition would be admissible on causation grounds | Yeager: Kedar offered causation linking accident to fibromyalgia; exclusion prejudicial | O’Keefe: Kedar could not state causation to a reasonable degree of medical certainty; opinion speculative | Court: Kedar’s causation opinion lacked reasonable medical certainty and thus had speculative probative value; would likely be inadmissible |
| Whether exclusion was reversible error | Yeager: exclusion was prejudicial because fibromyalgia causation was critical | O’Keefe: testimony was cumulative of medical records and Dr. Coor’s evidence; any error harmless | Court: any error harmless — Kedar’s testimony was cumulative and speculative and outcome would not likely differ |
Key Cases Cited
- Kimball v. Otis Elevator Co., 947 P.2d 1275 (Wash. Ct. App. 1997) (treating physicians who acquired opinions outside anticipation of litigation may be treated as fact witnesses)
- Fabrique v. Choice Hotels Int'l, Inc., 183 P.3d 1118 (Wash. Ct. App. 2008) (expert medical testimony required for medical causation and must be to a reasonable degree of medical certainty)
- Peters v. Ballard, 795 P.2d 1158 (Wash. Ct. App. 1990) (physician whose opinions derived from treatment, not litigation preparation, may be treated as fact witness)