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Johnson v. Carbon9/24/1991
ment. Counsel for both Mr. Johnson and Mr. Carbon contacted jurors and discussed the reasons for the verdict. Fifteen affidavits, obtained from eleven jurors, reflected the jury had discussed the issue of causation and their personal experiences with back injuries and had speculated on why Mr. Johnson kept a separate house. Mr. Johnson's motion for a new trial was denied. This appeal followed.
I
Proximate Cause
Mr. Johnson contends the court erred in permitting Mr. Carbon to ask questions, elicit testimony and argue the herniated disk suffered by Mr. Johnson was caused by something other than the automobile accident. First, he argues other "possible" causes were stressed in cross examination
of his experts. Second, he argues a defendant has the burden of proving a superseding cause. Third, he argues the jury was confused and prejudiced by the causation evidence introduced by Mr. Carbon.
Mr. Johnson's first argument concerns cross examination of his experts. He argues Mr. Carbon stressed other "possible" causes in cross examination. However, the record reflects cross examination addressed the testimony of the experts and exhibits. Mr. Johnson's experts testified concerning other causes of herniated disks. Mr. Johnson's treating expert neurosurgeon, Dr. Demakas, raised the issue of degeneration of spinal disks when he stated trauma accelerates or may even initiate degeneration. Dr. Hopwood testified concerning herniated disks in general. Mr. Reedy testified, and his exhibit records reflected, Mr. Johnson's range of motion as of December 2, 1985, was within normal limits in all cervical motions and his functional daily activities seemed to be doing very well. However, following the December 5 CAT scan, Dr. Hopwood ordered a specific change in physical therapy treatment to traction. Mr. Reedy also testified, and his exhibit records reflected, changes occurred in Mr. Johnson's activity level as well as his neck symptoms following a specific "contact" basketball activity on January 13, 1986. Basketball activity in general is mentioned five other times in Mr. Reedy's records. Washington Irrig. & Dev. Co. v. Sherman, 106 Wash. 2d 685, 724 P.2d 997 (1986), relied upon by Mr. Johnson, is distinguishable because in that case there was no evidence of any subsequent change or aggravation of the claimant's medical symptoms. Here, the record reflects there was evidence of subsequent changes in symptoms, treatment and activity level.
[2, 3] The scope of cross examination is within the sound discretion of the trial court. Falk v. Keene Corp., 53 Wash. App. 238, 250, 767 P.2d 576, aff'd, 113 Wash. 2d 645, 782 P.2d 974 (1989). The scope of inquiry of an expert witness must
be decided by the trial court in the context of the evidence submitted, and the foundation and purposes proposed for introduction of that evidence. Supanchick v. Pfaff, 51 Wash. App. 861, 867-68, 756 P.2d 146 (1988). Here, the trial court's ruling on the scope of cross examination of Mr. Johnson's expert witnesses occurred after Mr. Carbon's offer of proof of the proposed testimony of Dr. Adams that the herniated disk injury was not caused by the accident. An appellate court will not overturn a discretionary ruling absent a showing of abuse. Miller v. Peterson, 42 Wash. App. 822, 714 P.2d 695, review denied, 106 Wash. 2d 1006 (1986). There was no abuse shown here. The cross examination of Mr. Johnson's experts was prope
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