Opinion
No. 36566-9-II.
November 12, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 06-2-06693-1, Ronald E. Culpepper, J., entered July 6, 2007.
Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Van Deren, C.J., and Hunt, J.
UNPUBLISHED OPINION.
James Matthew Caraher sued Dmitriy Chernichenko for injuries Caraher sustained when Chernichenko ran over Caraher and his motorcycle while they were traveling southbound on Ruston Way in Tacoma. At trial, after three days of testimony recounting how an intoxicated Chernichenko had been speeding south on Ruston Way and had run from the scene after rear-ending Caraher, dragging both Caraher and the motorcycle beneath his car for approximately 100 feet, the trial court directed a verdict for Caraher and sent the case to the jury on the sole issue of damages due Caraher, who suffered a broken back as a result of the collision. The jury awarded Caraher $516,000.
On appeal, Chernichenko argues that the trial court erred by (1) admitting Caraher's summary of medical bills; (2) allowing a state trooper to testify that, according to blood alcohol test results, Chernichenko's blood alcohol content within two hours of the accident was .191 percent, more than twice the legal limit; and (3) excluding evidence that, at the time of the accident, Caraher had in his system cocaine and marijuana, had a prior history of drug abuse, and was driving with a suspended license. Chernichenko has not appealed the trial court's directed verdict finding him liable and, therefore, we address only the two issues raised that relate to damages: (1) whether the trial court erred when it admitted a summary of Caraher's medical bills and (2) whether substantial evidence supports the jury's damage award. Because the trial court properly admitted Caraher's summary of medical bills under ER 904 and Dr. Richard Johnson's testimony amply supports the damage award, we affirm.
DISCUSSION
Chernichenko asserts that the record does not support the jury's damage award because the unverified summary is not competent evidence of Caraher's medical bills and the record does not establish that the bills were reasonable and for necessary treatment related to the accident. Chernichenko asserts that these errors require that we reverse and remand this matter for a new trial. We disagree.
Standard of Review
A trial court has broad discretion in ruling on evidentiary matters and we will not overturn these decisions absent manifest abuse of discretion. Cox v. Spangler, 141 Wn.2d 431, 439, 5 P.3d 1265, 22 P.3d 791 (2000) (quoting Sintra, Inc. v. City of Seattle, 131 Wn.2d 640, 662-63, 935 P.2d 555 (1997)). When it takes a view no reasonable person would take, or applies the wrong legal standard to an issue, a trial court abuses its discretion. Cox, 141 Wn.2d at 439.
Unless evidence affects a substantial right of a party, the trial court does not abuse its discretion by admitting or excluding evidence. See ER 103(a). In order to preserve review of the trial court's ruling admitting evidence, a party must make a timely objection or motion to strike stating the specific ground of the objection if the specific ground was not apparent from the context. ER 103(a)(1). In order to preserve review of the trial court's ruling excluding evidence, the substance of the evidence must have been made known to the trial court or apparent from the context within which questions were asked. ER 103(a)(2). Reversal is warranted only if the trial court's evidentiary ruling prejudices the objecting party and if it is reasonable to conclude that the trial outcome would have been materially affected had the error not occurred. Lutz Tile, Inc. v. Krech, 136 Wn. App. 899, 905, 151 P.3d 219 (2007), review denied, 162 Wn.2d 1009 (2008).
Summary of Medical Bills
Chernichenko argues that the trial court erred in admitting Caraher's summary of medical bills because the original documents "had not been [a]dmitted and were not [a]dmissible based on [h]earsay and [f]oundation, which does not [m]eet the [r]equirements of ER 1006." Br. of Appellant at 9. We disagree. Caraher complied with the requirements of ER 904, and the trial court properly admitted the medical expense summary according to the terms of that rule.
A. ER 1006 Objection on Appeal
On appeal, Chernichenko challenges, for the first time, the admissibility of Caraher's summary, citing ER 1006. Under ER 1006, the contents of voluminous writings, recordings, or photographs that cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation, provided that the originals, or duplicates, be made available for examination and/or copying by other parties at a reasonable time and place. Specifically, Chernichenko argues that the trial court erred in admitting the summary document because the original documents had not been admitted and were not admissible given his hearsay and foundation objections. But these are untimely challenges to the admissibility of the ER 904 documents on other than relevance grounds. Because Chernichenko did not timely raise this challenge in his ER 904 response, he has waived the objection and may not present it for our review.
B. ER 904 Objections
ER 904 is designed to expedite the admission of extensive documentary evidence such as medical bills. Miller v. Arctic Alaska Fisheries Corp., 133 Wn.2d 250, 258, 944 P.2d 1005 (1997). The rule provides that in civil cases certain documents, including bills on a letterhead or billhead, may be deemed admissible and authentic before trial unless objection is made under ER 904(c). ER 904(a). But, no less than 30 days before trial, any party intending to offer a document under this rule must serve on all parties a notice stating that the documents are being offered under ER 904 and shall be deemed authentic and admissible without testimony or further identification unless objection is served within 14 days of the date of notice as required by ER 904(c). ER 904(b). Within 14 days of this notice, any other party may serve on all parties a written objection to any document offered under ER 904(b) identifying each document to which objection is made by number and brief description. ER 904(c). If an objection is made to a document on the basis of admissibility, the grounds for the objection shall be specifically set forth, except that an objection on the grounds of relevancy need not be made until trial. ER 904(c)(2).
In this case, Caraher notified Chernichenko of his intent to submit the documentary summary, including a summary of medical bills that Regence BlueShield had prepared, under ER 904. Neither party disputes that Caraher provided Chernichenko with the requisite notice or that Chernichenko timely served written objections. In his first objection, citing ER 904(a)(1), Chernichenko's counsel stated that the document was not "on a letterhead from the Author/Maker." Clerk's Papers (CP) at 26. Caraher claims that he provided Chernichenko with the summary on letterhead during discovery but redacted the letterhead after the trial court granted Caraher's motion to exclude all evidence of insurance. Caraher further agues that Chernichenko's objection goes to authentication or trustworthiness of the documents to which Chernichenko stipulated in his ER 904 response and at trial. Caraher's arguments are persuasive. While it is unclear whether Chernichenko in fact received a copy of the summary on letterhead during discovery, it is apparent that this objection goes to document authentication. Chernichenko emphasized on several occasions that authentication was not an issue. Furthermore, the trial court ordered that all references to Caraher's insurance be redacted. Caraher was simply complying with this order when he submitted the redacted summary at trial.
Chernichenko does not claim that the copy of the summary from which the letterhead had been redacted differs in any other respect from that on Regence's letterhead.
Chernichenko's second objection was to "any and all billing documents/medical expenses." CP at 26. ER 103(a)(1) provides that an error may not be predicated on a ruling which admits evidence unless a timely objection or motion to strike is made stating the specific ground of the objection. Chernichenko did not specifically articulate the ground on which this objection was based and his objection is waived. ER 103(a)(1).
But Chernichenko argues that he based his objection on lack of foundation. He stated in his written objections to Caraher's ER 904 submission, "Plaintiff must prove the treatment for which the bills were incurred was reasonable and necessary for treatment of injuries proximately caused by the accident." CP at 26. This is not so much a foundational objection as it is a challenge to the relevance of the evidence under ER 402. As such it need not be raised in an ER 904 response to be preserved. ER 904(c)(2). But the record does not support Chernichenko's claim. At trial, Dr. Johnson testified that he had experience with and knowledge of the rates charged by hospitals, doctors, and physical therapists in the Tacoma-Pierce County area. Johnson then testified that the charges for those services were fair and reasonable, and that the services Caraher received were reasonable and necessary to treat the injuries he sustained when Chernichenko ran over him. Johnson testified that the approximate cost of Caraher's initial surgery and hospitalization totaled $70,000 and that future costs would total approximately $60,000 to $70,000.
The summary indicates that Regence paid $95,479.20 on Caraher's behalf.
The trial court did not err in admitting the summary of Caraher's medical bills over Chernichenko's ER 904 and relevance objections.
C. Objections at Trial
At trial, Chernichenko attempted to raise several new objections to Caraher's summary of medical bills. In addition to his objections based on lack of foundation and absence of letterhead discussed above, Chernichenko objected that the documents were unsigned and hearsay.
But Chernichenko did not raise these objections in his ER 904 response and, therefore, is precluded from raising them at trial or on appeal. See ER 904(c)(2); Miller, 133 Wn.2d 250 (interpreting earlier rule but consistent with current rule). Additionally, because Dr. Johnson testified to the reasonableness and necessity of the treatment for which Caraher's bills were incurred, the trial court properly overruled Chernichenko's foundation/relevance objections. Finally, Chernichenko did not object to the fact that the document summary lacked a signature until trial. As with his other objections, this objection goes to authentication of the document to which he repeatedly stipulated throughout the litigation and which was waived under ER 904(c)(2) by his failure to raise it in a timely response. Other Issues Raised on Appeal
In his written objections to Caraher's ER 904 submission, Chernichenko stated that he had "no objection to authenticity (unless stated otherwise) of any documents identified in [Caraher's] ER 904 submittals," but that he objected to the admissibility of Caraher's documents. CP at 25. At trial, Chernichenko again emphasized that he did not object to the summary's authenticity.
Additionally, Chernichenko argues that the trial court erred when it allowed Trooper Johnny Alexander to testify as to Chernichenko's blood alcohol reading, and by excluding evidence that Caraher (1) had cocaine and marijuana in his system, (2) had a prior history of drug use, and (3) was driving with a suspended license at the time of the accident. These issues go to liability, which was established by the trial court's directed verdict, and Chernichenko does not appeal the trial court's directed verdict. Moreover, the record contains Chernichenko's guilty plea to vehicular assault in which he stipulated that alcohol contributed to his committing the offense. Accordingly, these issues are not before us for review. Attorney Fees
Chernichenko requests attorney fees on appeal. But we affirm; because Chernichenko is not the prevailing party, he is not entitled to receive such fees.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HUNT, J., VAN DEREN, C.J., concur