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Olea v. Swedish Medical Center5/16/2005
Kevin Olea was born with cerebral palsy. Kevin and his parents (collectively 'Olea') sued Swedish Medical Center and several doctors involved in the labor and delivery. The case proceeded to trial before a jury, and the jury found in favor of the defendants. Olea appeals. We affirm because: (1) Olea did not establish that the trial court abused its discretion in determining that there was a conflict of interests between the defendants sufficient to award them additional preemptory challenges; (2) it was not misconduct for defense counsel to ask a witness whether Kevin's brothers had been tested for cerebral palsy; (3) the trial court did not err in compelling the production of the school and medical records of Kevin's brothers; (4) the trial court did not err in giving jury instructions; (5) the trial court did not abuse its discretion in admitting evidence of future government benefits available to Olea; and (6) the trial court did not err in allowing, but not requiring, the jury to view a videotape of a Caesarean operation.
FACTS
After a difficult labor and delivery, Elena Olea gave birth to Kevin Olea. Kevin has cerebral palsy. Kevin and his parents sued several doctors and Swedish, arguing that Kevin's condition was caused by a deprivation of oxygen immediately before or during his birth. At trial, the only remaining defendants were Dr. Daniel Jay Fathi, a family practice physician assigned to Elena's care, Dr. David Luthy, a maternal-fetal medicine specialist, and Swedish. The jury returned a verdict in favor of the defendants, finding that neither Fathi nor Luthy acted negligently. Olea appeals.
ANALYSIS
The first issue we address is whether the trial court erred in allowing each defendant two peremptory challenges, for a total of six defense peremptory challenges. Under RCW 4.44.130:
Either party may challenge the jurors. The challenge shall be to individual jurors, and be peremptory or for cause. Each party shall be entitled to three peremptory challenges. When there is more than one party on either side, the parties need not join in a challenge for cause; but, they shall join in a peremptory challenge before it can be made. If the court finds that there is a conflict of interests between parties on the same side, the court may allow each conflicting party up to three peremptory challenges.
The trial court found that a conflict of interests existed between the defendants and therefore granted them additional peremptory challenges.
On the record, the court stated:
I did rule that because of the conflicts among the defendants, although I don't believe there are substantial conflicts in terms of the interests of these defendants, I found them sufficient to award additional peremptory challenges. So the ruling in chambers was that the plaintiffs would have four peremptory challenges and the defendants would have two each.
Plaintiffs' Objections to Voir Dire, May 5, 2003 at 2. Olea argues that the trial court abused its discretion in granting the additional peremptory challenges because it did not find a substantial conflict. The statute, however, does not require the court to find a substantial conflict, it only requires a conflict. Additionally, Olea criticizes the trial court for failing to detail its reasons for its decision on the record. It is apparent from the record that the parties and trial court addressed the issue of conflict in chambers. As the appealing party, Olea bears the burden of presenting an adequate record for review and for preserving errors. Because Olea did not present a record of the trial court's in- chambers discussion and ruling on this issue, we cannot r
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