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Otzenberger v. Park-Hwang5/10/2005
ing Otzenberger's motion to permit perpetuation depositions of her rebuttal witnesses.
On February 24, during the defense case-in-chief (which was apparently going on longer than Otzenberger anticipated, Otzenberger requested permission to call rebuttal witnesses before the close of the defense case- in-chief. Otzenberger wanted to call Dr. Day, her family physician, and Dr. Chang, her neurologist, to testify on February 25. The doctors were to rebut defense psychologist Dr. Rosen's testimony, which dealt primarily with Otzenberger's allegedly inconsistent reporting of medical problems to her many health care providers. Otzenberger's counsel also requested that, in the event Dr. Day was not permitted to testify on the 25th, they be permitted to perpetuate her testimony by video deposition.
Park-Hwang objected to this proposal. The trial court ordered that rebuttal witnesses be scheduled for February 27 and denied Otzenberger's request to preserve and present their testimony by video deposition. Regarding Dr. Day, the court stated, 'Again, it's not as if she is out of the state or out of the country, so she does need to reschedule so she can appear {on the 27th}.' 8 RP at 1237-38.
That evening of February 24, Otzenberger's counsel learned that Dr. Chang would not be available to testify on February 27, but counsel did not request a perpetuation deposition of Dr. Chang.
On February 26, Otzenberger's counsel informed the court that they were trying to get Dr. Day and Dr. Chang to testify. Later that day, counsel informed the court that neither doctor would be able to testify on the 27th, and Dr. Eschenbach would be Otzenberger's only rebuttal witness. Counsel did not request further relief or renew the request for a video deposition of Dr. Day.
Nevertheless, following Otzenberger's motion for new trial, the trial court determined that, based on its failure to permit depositions to be taken, a new trial was appropriate under CR 59(a)(1), '{i}rregularity in the proceedings of the court, jury or adverse party, or any order of the court, or abuse of discretion, by which such party was prevented from having a fair trial' and CR 59(a)(9), substantial justice not being done. As we have stated, the basic question posed by an order granting a new trial on the ground that substantial justice not done is whether the losing party received a fair trial. Olpinski, 73 Wn.2d at 951. A trial court may grant a new trial where an adverse party or the court itself prevents the movant from having a fair trial. CR 59(a)(1). But it may not use the rule as a means to substitute its judgment for that of the jury. See Bunnell v. Barr, 68 Wn.2d 771, 775, 415 P.2d 640 (1966); Thompson v. Grays Harbor Cmty. Hosp., 36 Wn. App. 300, 307, 675 P.2d 239 (1983). Moreover, an aggrieved party must request appropriate court action to obviate any prejudice before the case is submitted to the jury and may not speculate on the verdict by awaiting the result of the trial and then complain of the irregularity or misconduct in case the verdict is adverse. Hoff, 31 Wn. App. at 812; Spratt v. Davidson, 1 Wn. App. 523, 526-27, 463 P.2d 179 (1969).
Here, it appears that to some extent Otzenberger was speculating on the verdict: she failed to object to defense counsel's allegedly improper closing argument when made, before rebuttal, before the matter was submitted to the jury, or even immediately after the verdict. Instead Otzenberger waited to review the transcript and then filed a motion for a new trial based on irregularities she claims were 'flagrant.' Thus, the trial court erred as a matter of law in granting a new trial on this ground.
Its ruling that Dr. Day and Dr. Chang
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