Shelly Balser, et vir v. Providence Health & Services d/b/a

FILED
NOV. 	4,2014
In the Office of the Clerk of Court
WA 	tate Court of Appeals, Oivi ;ion llJ
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
SHELLY M. BALSER , individually, and 	)
JOHN BALSER, individually, and their 	) 	No. 	31567-3-III
Marital community, 	)
)
Respondents, 	)
)
v. 	) 	UNPUBLISHED OPINION
)
PROVIDENCE HEALTH & SERVICES, 	)
a Washington Corporation d/b/a 	)
MOUNT CARMEL HOSPITAL 	)
)
Appellant. 	)
KORSMO, J. - 	Providence Health appeals the trial court's decision to grant a new
trial due to a failure of discovery concerning experiments undertaken by one of its experts
that were related to the jury during the expert' s testimony. 	Given the great deference
owed a trial judge' s discretion in this arena, we affirm.
FACTS
Respondent Shelley Balser and her husband (collectively, Balsers) sued Providence
Health and Services over injuries suffered after physical therapy treatment at Mount Carmel
Hospital in Colville. Following a change of venue, the matter ultimately proceeded to ajury
trial in Spokane County Superior Court.

No. 	31567-3-III
Balser v. Providence Health Servs.
The case revolved around a claim by the Balsers that Shelley Balser had been
injured during physical therapy for "tennis elbow" at Mount Carmel. Physical therapist
Thomas Kaluzny provided electrical muscle stimulation (EMS) treatment using the
"Russian electrical stimulation" method. EMS involves lise of electricity to simulate
muscle contractions. The Russian method used by Mr. Kaluzny places one electrode in
the middle of a muscle and one at the top of the muscle tendon. 	An electrical current was
then allowed to flow from one electrode to the other for alternating periods of ten seconds.
The April 19, 2005, treatment session involved Mr. Kaluzny placing a pair of
electrodes on Ms. Balser's biceps and a pair on her trapezius. 	When properly applied, this
combination should cause the shoulder to lift or shrug. 	Mr. Kaluzny testified that he
placed one of the trapezius electrodes on the midsection of the upper trapezius and the
other at the top of the tendon of the deltoid muscle. His standard practice was to make
sure the EMS was causing the muscle to contract and the patient was comfortable, and
then he would leave the room during the duration of the treatment, typically 20 or 30
minutes.
About five or ten minutes after he turned on the Dynatron EMS machine, observed
it working appropriately, and left the room, Ms. Balser experienced dizziness and her
heart started pounding. 	She got up and looked for help. Mr. Kaluzny returned and
discovered that Ms. Balser's pulse rate was 152 beats per minute and she had high blood .
pressure. He told her husband to take her to the hospital, where they gave her oxygen and
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No. 	31567-3-111
Balser v. Providence Health Servs.
diagnosed her with tachycardia. Ms. Balser also complained of a dry mouth and tight
neck. 	After conferring with Mr. Kaluzny, the emergency room doctor concluded that the
symptoms may have been caused by EMS stimulation of the vagus nerve coming from the
brain. Ms. Balser's heart rate and blood pressure eventually returned to normal and she
was discharged.
Over the following months, Ms. Balser continued to have a dry mouth, anxiety, and
periods when she felt she could not breathe; she occasionally reported heart palpitations ..
Her symptoms eventually improved somewhat with medication, but she remained anxious
about recurrences. 	In July 2005, a fellow physical therapist brought Ms. Balser a Dynatron
manual that warned against placing one of its electrodes near the stellate ganglion, a cluster
of nerves in the hollow above the clavicle next to the side of the neck. 	Ms. Balser did some
internet research and decided that her symptoms could be explained by injury to the stellate
ganglion on the right side of her neck. 	Contrary to Mr. Kaluzny's memory, she contended
that he had placed an electrode at least partially over the hollow above the clavicle, rather
than over the deltoid. 	By stimulating that hollow area, she contended, the EMS damaged
nerves in the stellate ganglion that serve her salivary glands and heart.
The Balsers deposed physical therapist James Strandy, an expert for Providence
Health. At one point in the deposition, counsel for Providence Health asked Mr. Strandy,
"In addition to the records, literature and your experience, have you also performed any
kind of work or experimentation relative to Russian electrical stimulation?" He
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No. 	31567-3-III
Balser v. Providence Health Servs.
responded, "Yes." Ms. Balser did not specifically ask Mr. Strandy what experiments he
had performed, but she did ask what facts supported his opinion, what research he had
done on EMS and Russian stimulation, and what he meant by "research." "[A]re you
talking about you get articles, you read them, or are you talking about you give treatment
to people, keep track of it, and then publish literature?" Mr. Strandy responded to the last
question by stating, " Yes, to the former. 	No, on the latter." Clerk's Papers (CP) at 135.
Mr. Strandy testified at trial concerning the standard of care for physical therapists,
including proper use of the Russian method, but Providence Health established that Mr.
Strandy was not offering a causation or diagnostic opinion. Providence Health asked him
to explain what research he had done. He answered, "I was curious myself to see whether
or not the electrode placement in this dip or hollow of the neck would produce" the
contracting shoulder movements Mr. Kaluzny and Ms. Balser had described. Later in his
testimony, Mr. Strandy reported that he had experimented with the Dynatron EMS machine
on an office assistant and had determined that placing one of the trapezius electrodes over
the hollow of the clavicle could not have caused Ms. Balser's shoulder to lift. 	With one
electrode over the ' upper trapezius and one over the clavicle hollow, Mr. Strandy' s assistant
reported she felt only nerve tingling and numbness. 	On cross-examination, Ms. Balser
asked Mr. Strandy if he had revealed in his deposition that he had made this experiment.
He answered, "You didn't ask [me] that question, but you did ask me if you were to put
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No. 	31567-3-111
Balser v. Providence Health Servs.
that electrode in that area, what would you feel, and so I was waiting for you to ask me
how do you know that, and you didn't." Report of Proceedings (RP) at 1042.
The court asked the jurors if they had any questions at the end of Mr. Strandy's
testimony. Three of the four questions submitted by the jurors involved the
"experiment":
[1] Since you were willing to "experiment" on your assistant to see if you
could induce movement in the shoulder by placing an electrode in the
triangle, is it fair to assume that you were not concerned with creating
injury to her cervical ganglia? 	[2] Was the assistant ... afraid to have her
stellate ganglion damaged to test the hypothesis of achieving a shoulder
shrug? [and 3] Did your assistant experience any side effects after placing
electrode in "Triangle Area" such as increase [sic] blood pressure,
tachycardia, dry mouth, or any other sympathetic system symptoms? How
long was the machine left turned on with electrode in that "Triangle Area?"
CP at 31-33.
The parties debated the issue outside the presence of the jury. The Balsers objected
to the questions on several bases, including the fact that the "experiment" had not been
disclosed at the deposition. Providence Health contended that it put the Balsers on notice
when it asked whether Strandy had performed an experiment. The court declined to ask
the three questions, but noted that the whole issue was "out there because the jury already
knows something." RP at 1078.
The jury concluded that Providence Health was not negligent. 	The Balsers moved
for a new trial under CR 59(a), contending that the failure to disclose the experiment in
discovery deprived them of a fair trial. The trial court granted a new trial, concluding that
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No. 	31567-3-III
Balser v. Providence Health Servs.
Providence Health should have disclosed the infonnation, it was material because it
addressed the central issue the jury had to resolve, and the Balsers were prejudiced by the
misconduct.
Providence Health timely appealed to this court.
ANALYSIS
Providence Health challenges the new trial ruling, arguing on mUltiple bases both
that the court abused its discretion in ordering the new trial and that the Balsers waived the
issue by not timely objecting at trial. 	We will address the two issues in the order noted.
New Trial Motion
Providence Health argues that it did not violate its discovery obligations and for that
reason, as well as lack of prejudice, the court erred in granting the new trial. 	We address
those arguments as one related issue.
Providence Health recognizes the well settled standards that govern this case. A
ruling on a motion for a new trial under CR 59(a) is reviewed for abuse of discretion.
Teter v. Deck, 174 Wn.2d 207, 222, 274 P.3d 336 (2012). 	A higher showing of abuse of
discretion applies to an order granting a new trial than to an order denying such a motion.
Jd.; State v. Hawkins, 181 Wn.2d ---, 332 P.3d 408 (2014). Discretion is abused when it
is exercised on untenable grounds or untenable reasons. 	Teter, 174 Wn.2d at 222;
State ex reI. Carroll v. Junker, 79 Wn.2d 12, 26,482 P.2d 775 (1971) .
6

No. 	31567-3-111
Balser v. Providence Health Servs.
The Balsers sought a new trial under the provisions of CR 59(a)(l), (2), and (9),
which provide in part that a new trial may be granted due to:
(1) Irregularity in the proceedings ... ;
(2) Misconduct of prevailing party ... ;
(9) That substantial justice has not been done.
The court's order expressly cited all three bases as support for its ruling. 	CP at 325. 1
Providence Health argues that it did not fail to disclose Mr. Strandy's experimentation
and that the Balsers simply did not ask the right questions during the deposition. Like
the trial court, we disagree. 	As detailed previously, when Mr. Strandy was asked the basis
for his expert opinion, he mentioned "research." He subsequently defined "research" as
reading the literature rather than treatment and patient follow-up. 	CP at 135. However,
he subsequently used his undisclosed experimental efforts to explain that the plaintiffs'
theory of the case could not be correct.
Providence Health argues that "research" is not "experimentation." That is an
insignificant semantic distinction. Mr. Strandy was asked about the basis for his opinion,
not whether he distinguished "research" from "experimentation." By limiting his answer
to "research," he was then bound by his idiosyncratic view of the meaning of that term. 	If
1 Providence Health also argues that the trial court erred in granting the new trial
as a sanction for violating the discovery rules. 	The court's ruling only addressed the effect
of the surprise testimony under CR 59(a) rather than the discovery rules. 	We cannot read
this record as establishing that the trial court treated this as a discovery sanction. The
issue was the effect of the surprise testimony on the trial rather than whether discovery
obligations were ignored. We will not separately address the discovery violation claim.
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No. 	31567-3-III
Balser v. Providence Health Servs.
what he views as "experimentation" was not a basis for his opinion, then he should not
have been telling the jury about his "experiment".2 Ifhis opinion of what "research"
meant changed between the deposition and trial to include an "experiment", the defense
needed to disclose the new basis for his opinion.
The trial court correctly decided the experiment needed to be disclosed to the
plaintiffs before trial. 	The question remaining is whether this "misconduct" justified
granting a new trial. Providence Health argues that this undisclosed testimony was not
prejudicial because all of the experts agreed that placing the electrodes in the wrong
locations would violate the standard of care and cause injury. It also argues that all of the
witnesses agreed that Ms. Balser did lift her shoulder when it was stimulated by the
machine and that the shoulder movement was not possible if the electrodes were placed
where the Balsers said they were.
However, the Balsers did present some evidence that shoulder stimulation could
occur if an electrode was placed partly over the deltoid with the rest of it over the stellate
ganglion, thus making their theory of the case physically possible. Accordingly, Mr.
Strandy's "experiment" was the only expert non-opinion evidence that called into question
where the electrode was actually placed. Further, the fact that the subject of Mr. Strandy's
2 While not challenged at trial, Mr. Strandy's "experiment" testimony appears to be
outside the expected scope of his testimony. 	It was used to contradict the plaintiffs' theory
of the case rather than explain the standard of care for therapists using the Russian method.
8

No. 	31567-3-III
Balser v. Providence Health Servs.
"experiment" did not suffer injury called into question the dangerousness of actually
stimulating the stellate ganglion. 	The previously noted questions from the jury all focused
on this point, one that seriously undercut the plaintiffs.
Given all of this, the trial court correctly determined that Mr. Strandy's "experiment"
went to the issues at the heart of the case. This was a very tenable basis for granting the.
motion for a new trial. 	The facts here are more compelling than in other cases where our
Supreme Court recently has upheld new trial rulings. 	In Teter, the court upheld a new trial
granted due to the exclusion of the plaintiffs only urologist, an expert who was a late
addition to the witness list. 	174 Wn.2d at 220-22. 	In Hawkins, the court approved a new
trial where the defendant failed to question one of his trial witnesses about an incident that
other defense witnesses described. 	332 P.3d at ~~ 19-21.
In both Teter and Hawkins, the court upheld the grant of new trials on the basis of
information the witness might have been able to convey at trial. 	Here, the question
revolved around evidence actually entered at trial on the central point of the case. The
impact of this surprise testimony was more significant than the anticipated testimony that
justified new trials in the other cases. Accordingly, as we must accord the decision to grant
a new trial greater deference than an order denying a new trial, we conclude that the new .
trial remedy was not an abuse of discretion here.
The trial court did not err in granting the Balsers a new trial.
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No. 	31567-3-III
Balser v. Providence Health Servs.
Waiver
Providence Health also contends that the Balsers waived any claim of error by
gambling on the verdict before seeking relief. The trial court carefully considered this
claim before rejecting it due to the context in which the issue arose at trial and the
difficulty of finding a cure.
A party may not gamble on a verdict before seeking to remedy trial misconduct.
Teter, 174 Wn.2d at 225. The failure to seek relief will only be excused if the misconduct
was so flagrant that it was beyond cure. Id. at 225-26. 	Providence Health contends that
this rule governs here and that the Balsers are not entitled to a new trial because they did
not challenge Mr. Strandy's testimony at trial.
The trial court considered this to be appellant's best argument in opposition to the
new trial motion. RP (Aug. 14 , 2012) at 31-32. The court pointed out that the issue arose
late in the trial in the context of the jury's proposed questions for Mr. Strandy and that
perhaps the court and parties "got sidetracked" from addressing the core problem
presented. Id. at 31. The veteran trial judge admitted that she was uncertain whether or
not the error was curable. Id. at 32. Left with the overall impression that the testimony
was important, making the error highly prejudicial, the court believed that a new trial was
appropriate. Id. at 32-33.
We believe this was not an instance where the plaintiffs should be faulted for
gambling on a new trial, if they even did so. 	We doubt that anything short of a mistrial
10

.,
No. 	3l567-3-II1
Balser v. Providence Health Servs.
could have cured the error given the centrality of the liability issue and the comparative
weakness of the Balsers' case on that point. 	Those facts made the error highly
prejudicial. Telling the jury to disregard the testimony would be of dubious value, and
there was no time to try to find a competing expert to dispute Mr. Strandy's
"experiment." The likely outcome of an objection would have been a new trial.
The purpose of an objection is to allow the trial court to take corrective action to
remedy the problem. If the problem cannot be remedied without granting a new trial,
then there is no need to object. The problem presented to the trial court was not
remediable short of a new trial, which is ultimately the remedy chosen by the trial court . .
On these facts, we do not believe the waiver rule has application.
The order granting a new trial is affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
11
RCW 2.06.040.
WE CONCUR:
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