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Johnson v. Carbon9/24/1991
r and within the scope of the direct examination.
Mr. Johnson's second argument concerns superseding cause. He argues Mr. Carbon, as the defendant, has the burden of proving a superseding cause of the herniated disk. However, on the issue of causation, Mr. Carbon did not affirmatively defend on a theory of superseding cause; he denied the automobile accident caused the herniated disk. Therefore, Mr. Carbon was not required to show what caused Mr. Johnson's herniated disk, but only to show the automobile accident did not cause it. This he did by way of Dr. Adams' expert testimony that the accident caused only a cervical shoulder strain as originally diagnosed by Dr. Hopwood. Additionally, on the issue of damages, the test of relevancy is whether the evidence has a tendency to make the existence of the fact to be proved more probable or less probable than it would be without the evidence. Garcia v. Providence Med. Ctr., 60 Wash. App. 635, 642, 806 P.2d 766 (citing State v. Renfro, 96 Wash. 2d 902, 906, 639 P.2d 737, cert. denied, 459 U.S. 842 (1982)), review denied, 117 Wash. 2d 1015 (1991). The evidence adduced by Mr. Carbon did establish the relevance of Mr. Johnson's subsequent symptoms, treatment and activities to his claim for damages.
Furthermore, the cross examination testimony of Mr. Johnson's experts about his physical activities after the accident, coupled with the testimony about degeneration of his cervical disks, did not improperly suggest a superseding event caused the herniated disk. Mr. Johnson's reliance on Allen v. Mattoon, 8 Wash. App. 220, 504 P.2d 316 (1972) is misplaced. In that case defendant/cross claimant Mr. Mattoon had been involved in a second similar accident 10 months after the accident for which suit was brought. This second accident resulted in the death of the passenger; however, there was no medical evidence concerning Mr. Mattoon's condition as a result of the second accident and he denied injury from it. The trial court permitted references to the second accident on the basis the severity of the impact was material to prove all injuries were from the first accident and not the second accident. The appellate court reversed, but would have permitted the evidence concerning the second accident as relevant had there been evidence of injury and medical testimony concerning it. That is the situation here. Mr. Carbon had the right to examine all aspects of the causal relationship. The evidence permitted by the trial court, over Mr. Johnson's objection, was relevant to both the causation issue and the damage issue. It supported Mr. Carbon's theory the accident did not cause the herniated disk injury and damages should not be awarded for it.
[5, 6] Mr. Johnson's third argument concerns jury confusion and prejudice as a result of the causation evidence. This argument is not supported by the verdict returned by the jury. The jury verdict, which was limited to the issues of whether the accident was a proximate cause of an injury and whether Mr. Johnson's comparative fault was a contributing proximate cause of it and the resulting damage, indicates the jury understood the causation issue. Liability was not a jury issue; therefore, had the jury believed the accident proximately caused neither injury nor damage, it
would not have awarded Mr. Johnson anything. Substantial evidence was presented to support an award of damages based on the accident proximately causing a cervical shoulder strain injury only. The jury heard conflicting expert testimony whether the accident caused a cervical
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