* Shawna Rookstool, et ux, et al, v. Donna Eaton, et vir, et al

NOTICE: SLIP OPINION
(not the court’s final written decision)
The opinion that begins on the next page is a slip opinion. Slip opinions are the
written opinions that are originally filed by the court.
A slip opinion is not necessarily the court’s final written decision. Slip opinions
can be changed by subsequent court orders. For example, a court may issue an
order making substantive changes to a slip opinion or publishing for precedential
purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits
(for style, grammar, citation, format, punctuation, etc.) are made before the
opinions that have precedential value are published in the official reports of court
decisions: the Washington Reports 2d and the Washington Appellate Reports. An
opinion in the official reports replaces the slip opinion as the official opinion of
the court.
The slip opinion that begins on the next page is for a published opinion, and it
has since been revised for publication in the printed official reports. The official
text of the court’s opinion is found in the advance sheets and the bound volumes
of the official reports. Also, an electronic version (intended to mirror the
language found in the official reports) of the revised opinion can be found, free of
charge, at this website: https://www.lexisnexis.com/clients/wareports.
For more information about precedential (published) opinions, nonprecedential
(unpublished) opinions, slip opinions, and the official reports, see
https://www.courts.wa.gov/opinions and the information that is linked there.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
SHAWNA ROOKSTOOL and TODD
ROOKSTOOL, husband and wife,
individually and in their capacity as the
parents and legal guardians of minor
children, MRR, MKR, and CDR,
Respondents,
v.
DONNA EATON, individually and JOHN
DOE EATON, husband and wife and the
marital community thereof,
and
QUINCY SCHOOL DISTRICT NO. 144,
a political subdivision,
Appellants.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
No. 35873-9-III
PUBLISHED OPINION
KORSMO, J. — Quincy School District (QSD) appeals from a jury verdict in favor
of three children injured in a school bus accident, primarily arguing that it is entitled to a
new trial due to misconduct of opposing counsel in closing argument. Although we agree
that misconduct occurred, the deference owed the trial court in its posttrial rulings leads
us to affirm.
FILED
FEBRUARY 13, 2020
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 35873-9-III
Rookstool et vir, et al v. Eaton, et al
2
FACTS
A bus accident injured several children, including three members of the Rookstool
family—MRR, MKR, and CDR. QSD admitted liability and the parties only disputed
damages. The crash caused spinal damage to MRR that is expected to require ongoing
therapeutic care and possible surgery. MKR experienced bulging discs on her back that
cause tingling and numbness in her legs. CDR and parents Shawna and Todd Rookstool
experienced emotional trauma from the incident.
The parties agreed to several motions in limine, including the following:
6. The Court should preclude admission of any evidence that parties have
not produced in response to valid discovery requests.
13. Any argument requesting the jurors to place themselves in the position
of Plaintiffs must be excluded at trial.
14. Any argument that the jurors punish defendant, “send a message,” or
“make an example” of defendant should be prohibited.
21. There should be no reference to the “golden rule.”
Clerk’s Papers (CP) at 161, 171, 173-74.
The damages-only trial lasted eight days between October and November 2017.
The parties stipulated to past medical damages for MRR and MKR in the respective sums
of $142,014.26 and $6,482.01. Each party presented expert witnesses to evaluate MRR’s
and MKR’s long-term injuries and ongoing care requirements. Dr. Cole Hemmerling, the
Rookstool family doctor, testified about MRR’s and MKR’s initial diagnoses and
treatment. Toward the end of his testimony, the court denied his request to speak frankly.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 35873-9-III
Rookstool et vir, et al v. Eaton, et al
3
In continued questioning, Dr. Hemmerling opined that QSD’s diagnosis for MRR was
“disingenuous and petty.”
In closing arguments, the family’s counsel contended that MRR’s medical
damages, including past and future expenses, totaled $640,000 to $1,200,000 and MKR’s
medical damages totaled $37,240 to $106,626. Counsel asked the jury to award the
Rookstool family $5,000,000, to be split $4,000,000 to MRR, $750,000 to MKR, $50,000
to CDR, and $200,000 to Shawna and Todd Rookstool. Counsel also suggested MRR
might need surgery and stated his belief that opposing counsel agreed that the surgery
would be terrifying. QSD’s counsel immediately objected. The trial court reminded the
jury that closing is argument and not to treat attorney statements as evidence.
The family’s attorney then asked the jury to close their eyes and imagine MRR’s
fear and uncertainty about her future due to her injuries. Counsel reminded jurors the
Rookstool family were members of their community and they should look after their
own. QSD did not object to these arguments.
QSD asked the jury to award the Rookstool family $305,000 in damages, divided
$250,000 to MRR, $20,000 to MKR, $10,000 to CDR, and $25,000 to Shawna and Todd.
QSD argued that its evidence showed most injuries were not caused by the school bus
accident and questioned findings presented by the family’s expert witnesses.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 35873-9-III
Rookstool et vir, et al v. Eaton, et al
4
In rebuttal, the family’s counsel stated:
You heard [QSD’s counsel] talking about Dr. Hemmerling. He’s one of
our own. And you remember that day when Dr. Hemmerling was on the
stand and [QSD’s counsel] was chopping at him and he talked about
disingenuous and petty.
(As read): “Disingenuous and petty. I will tell you what I find
disingenuous and petty. This is a farm family, not unlike the farm family I
grew up in. We worked and played together on that family farm. I was
taught most all of my life lessons worth knowing there. First and foremost,
my mama taught me when you mess up the first thing you do is fess up.
Say you’re sorry; then you make it right if you can.”
The district has done the first two, messed up and fessed up, but
failed miserably on the most important part, making it right. That has been
the disingenuous and petty part of this whole affair. The district just needs
to finish the apology and do what their mother taught them to do.”
I got this text at 7:56 in the morning, the morning after Cole
Hemmerling testified on the stand. It kept him up all night.
Report of Proceedings (RP) at 2023. The court sustained an objection to this evidence
outside the record and instructed the jury to disregard the statement.
QSD moved for a mistrial before the jury verdict, but the court did not hear
arguments until after the jury returned its verdicts. QSD contended that counsel’s
conduct in closing unfairly prejudiced the district, focusing on (1) the reading of Dr.
Hemmerling’s text message, (2) wrongly suggesting that QSD’s counsel believed MRR
needed surgery, (3) use of a golden rule argument when asking the jury imagine to
MRR’s fears, and (4) the appeal to “home town” community sentiments.
The jury awarded the Rookstool family $1,210,000. The total was divided
$1,000,000 to MRR, $100,000 to MKR, $10,000 to CDR, and $100,000 to the parents.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 35873-9-III
Rookstool et vir, et al v. Eaton, et al
5
The court denied the mistrial motion on November 21, 2017. The court’s oral
ruling found that any prejudice caused by reading the text message to the jury was cured
by the court’s instruction. Likewise, any suggestion that QSD’s counsel agreed with the
Rookstool’s counsel was disproved when QSD objected and any error was harmless. The
judge also stated that if QSD had objected to the golden rule argument, the court likely
could have cured any error, so the argument was waived by the failure to object. The
trial court believed that the jury reached its verdict based on expert testimony and did not
believe that the damages were the result of improper conduct. However, the court did
order Rookstool’s counsel to turn over the complete text message to QSD for further
investigation.
QSD subsequently filed a motion for a new trial that raised the same issues as the
mistrial motion. Cell phone records indicated that plaintiff’s counsel informed Dr.
Hemmerling by return text message that he planned to read the doctor’s text message in
closing, leading QSD to conclude that the conduct was premeditated, flagrant, and ill-
intentioned. The trial judge denied the motion, but agreed that respondent’s counsel
planned in advance to read the text message. However, the court ruled appellant failed to
show prejudice incurable by jury instruction. The court reemphasized the jury verdict fit
within reasonable damages set out by expert witnesses and its belief that the jury
followed the curative instruction.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 35873-9-III
Rookstool et vir, et al v. Eaton, et al
6
QSD timely appealed the jury’s verdict as well as the trial court’s denial of its
mistrial and new trial motions. A panel heard oral argument of the case.
ANALYSIS
This appeal revolves around the noted closing arguments by counsel for the
Rookstools. Given the nature of our review, we consider the arguments as one.
Long settled standards govern our review of these issues. Appellate courts review
a trial court’s resolution of a mistrial motion for abuse of discretion. Adkins v. Aluminum
Co. of Am., 110 Wn.2d 128, 136, 750 P.2d 1257, 756 P.2d 142 (1988). The same
standards apply to a motion for a new trial under CR 59(a). Id.; 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. Teter, 174
Wn.2d at 222. Discretion is abused when it is exercised on untenable grounds or
untenable reasons. Id.; State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775
(1971). Misconduct that results in prejudice is a basis for a new trial. Aluminum Co. v.
Aetna Cas. & Sur. Co., 140 Wn.2d 517, 537-38, 998 P.2d 856 (2000).
QSD acknowledges, and even embraces, the abuse of discretion standard while
understandably focusing on what it considers the egregious nature of each instance of
potential misconduct. However, that focus requires that we address another aspect of this
appeal. QSD did not challenge the “home town” and alleged “golden rule” arguments
when they were made at trial. Appellate review normally does not extend to arguments
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 35873-9-III
Rookstool et vir, et al v. Eaton, et al
7
not raised in the trial court. RAP 2.5(a); Rash v. Providence Health & Servs., 183 Wn.
App. 612, 625, 334 P.3d 1154 (2014). The purpose of this rule is to promote judicial
economy by allowing the trial court to correct the error in the first instance. Kitsap Co.
Consol. Housing Auth. v. Henry-Levingston, 196 Wn. App. 688, 385 P.3d 188 (2016);
Rash, 183 Wn. App. at 625. Courts, however, have discretionary authority to consider
issues of manifest constitutional error that were not raised in the trial court, provided that
an adequate record exists to consider the claim. RAP 2.5(a)(3); State v. McFarland, 127
Wn.2d 322, 333, 899 P.2d 1251 (1995).
The two noted issues presented here are not of constitutional magnitude. Both
“golden rule”1 and “hometown” arguments are common law doctrines involving trial
fairness. E.g., Adkins, 110 Wn.2d at 142 (“golden rule”); Pederson v. Dumouchel, 72
Wn.2d 73, 83-84, 431 P.2d 973 (1967) (“hometown” pride). The concern is that both
arguments invite the jury to decide on the basis of sympathy or prejudice instead of on
the evidence. Id. Typically, these arguments are waived absent timely objection in the
trial court. Adkins, 110 Wn.2d at 142 (“golden rule”); Lafferty v. Stevens Mem’l Hosp.,
1 We note that the Rookstools deny that their counsel made a golden rule argument
(appellate counsel refered to it at oral argument as a “first person closing” (Wash. Court
of Appeals oral argument, No. 35873-9-III (Dec. 5, 2019), at 17 min., 53 sec. to 30 min.,
56 sec. (http://www.courts.wa.gov/appellate_trial_courts/appellatedockets/index.cfm?fa
=appellatedockets.showDateList&courtId=a03&archive=ye=20191205.))) and that the
trial judge stated he did not immediately characterize the argument as a golden rule
argument. We need not classify the argument or decide whether such an argument is
proper.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 35873-9-III
Rookstool et vir, et al v. Eaton, et al
8
noted at 136 Wn. App. 1027, slip op. at 7 n.19 (2006) (“hometown”).2 We think that is
the case here. Timely objection would certainly have forced a clarification of the golden
rule argument QSD accused counsel of making, and we believe that the hometown
argument also could adequately have been addressed by a curative instruction following a
timely objection.3
That does not mean, however, that the waived claims could not, in the trial court’s
discretion, have been considered in the posttrial motions. Collins v. Clark County Fire
Dist. No. 5, 155 Wn. App. 48, 97, 231 P.3d 1211 (2010). To varying extents, all of the
claims were addressed by the trial court in its posttrial rulings. Both the mistrial motion
and the motion for a new trial were based on the same grounds; the only difference
between the two motions was the existence of the text conversations that established that
counsel’s reading of Dr. Hemmerling’s message was planned days in advance.
As both motions also are reviewed for abuse of discretion, we will treat them as
one for our purposes. The question presented is whether the trial court had tenable
grounds or reasons for rejecting the motions. We conclude that it did.
2 Adkins notes that an objection can cure a golden rule argument “in most cases,”
suggesting that in some instances such an argument is incurable and requires a new trial.
110 Wn.2d at 142.
3 Even though it prevailed on a motion in limine to exclude any golden rule
argument, QSD still had “a duty” to bring the violation to the court’s attention. A.C. v.
Bellingham Sch. Dist., 125 Wn. App. 511, 525, 105 P.3d 400 (2004).
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 35873-9-III
Rookstool et vir, et al v. Eaton, et al
9
QSD argues that the two preserved misconduct arguments—the statement that
opposing counsel agreed that the surgery was terrifying and the reading of Dr.
Hemmerling’s text message—each separately justify a new trial and that they can be
combined with each other and the two unpreserved claims—the golden rule and
hometown arguments—as a matter of cumulative error. The Rookstools argue that the
cumulative error doctrine does not apply in civil cases. For the reasons that follow, we
do not believe that the cumulative error doctrine is limited to criminal proceedings. Any
trial can be made unfair by a series of errors that, individually, might not justify granting
a new trial, but that cumulatively did wrongly affect the verdict.
The cumulative error doctrine applies where a combination of trial errors
denies the accused of a fair trial, even where any one of the errors, taken
individually, would be harmless. In re Det. Of Coe, 175 Wn.2d 482, 515,
286 P.3d 29 (2012). The test to determine whether cumulative errors
require reversal of a defendant’s conviction is whether the totality of
circumstances substantially prejudiced the defendant and denied him a fair
trial.
In re Pers. Restraint of Cross, 180 Wn.2d 664, 690, 327 P.3d 660 (2014).
The first significant discussion of cumulative error appears to have occurred in
State v. Simmons, 59 Wn.2d 381, 368 P.2d 378 (1962). The court began its opinion as
follows:
The issue here is whether a defendant convicted of assault with
intent to commit rape had a fair trial.
Our conclusion is that he did not. The accumulation of prejudicial
incidents and misconduct, in a case where the factual issue was a very close
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 35873-9-III
Rookstool et vir, et al v. Eaton, et al
10
one, tipped the scale so heavily against the defendant that any semblance of
a fair trial was lost.
Id. at 382-83. Extensive misconduct in cross-examination and closing argument, coupled
with vouching for the integrity of witnesses and calling a witness whose testimony had
previously been excluded, was significant prosecutorial misconduct that was augmented
by error in excluding evidence and in the seating of a biased juror. Id. at 383-92. The
court had no difficulty concluding that the trial was unfair, requiring reversal of the
conviction.
Similarly, other cumulative error cases have looked to the impact of multiple
errors on the totality of the trial. E.g., State v. Coe, 101 Wn.2d 772, 684 P.2d 668 (1984)
(evidentiary and instructional errors, discovery violation, and prejudicial cross-
examination all cumulated to require new trial); State v. Lampshire, 74 Wn.2d 888, 447
P.2d 727 (1968) (erroneous limitation on cross-examination, comment on the evidence,
and excessive rebuttal testimony cumulated to require new trial).
Both sides dispute the meaning of a case from this court, Storey v. Storey, 21 Wn.
App. 370, 585 P.2d 183 (1978). There the trial court had granted a new trial because of
multiple instances of defense witness misconduct, primarily by the defendant, but also by
her daughter. Id. at 371-73. The trial court expressly cumulated the errors and
determined that curative instructions had not obviated the misconduct. Id. at 373.
Although before this court on appeal from the order granting the new trial, we, too,
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 35873-9-III
Rookstool et vir, et al v. Eaton, et al
11
turned to the cumulative nature of the errors to affirm the order, citing to Simmons. Id. at
374.
Although the parties note cases indicating that cumulative error has not been
applied in civil cases, no case has been cited that prohibits consideration of cumulative
error in the civil context. Indeed, cumulative error is argued in personal restraint
petitions as well as in sexually violent predator actions, both of which are civil in nature,
although admittedly each type of case has a heavy criminal “flavor.” E.g., Cross, 180
Wn.2d at 690 (personal restraint); In re Det. Of Coe, 175 Wn.2d at 515 (sexual predator).
In light of Storey and the use of the doctrine in quasi-criminal civil actions, we conclude
that cumulative error applies to civil cases. Like criminal litigants, civil litigants are
entitled to fair trials.
However, that does not mean that QSD has a case of cumulative error here.
Cumulative error is not a method for considering unpreserved issues on appeal. It is
simply a recognition that the net impact of multiple small errors can still result in a
prejudicial impact on the trial. QSD argued all of its claims in the posttrial motions. The
trial court was empowered to hear all of those claims, even if not preserved, in making its
ruling. A.C. v. Bellingham Sch. Dist., 125 Wn. App. 511, 525, 105 P.3d 400 (2004).
Here, it did so. Accordingly, QSD has preserved its arguments through raising them in
the mistrial and new trial motions. Although not all of them could be heard as individual
claims on appeal, QSD has not attempted to do so.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 35873-9-III
Rookstool et vir, et al v. Eaton, et al
12
Multiple instances of misconduct do not implicate cumulative error because the
focus is on the totality of counsel’s misconduct.4 We do not parse misconduct claims and
treat each and every objectionable statement of counsel as a separate misconduct claim.
Here, for example, there is but one misconduct claim instead of four. See Storey, 21 Wn.
App. at 373-74 (treating defendant’s misconduct as one issue). Necessarily we look at
the totality of the conduct in assessing the one argument. There is no need for cumulative
error analysis.
We agree with appellant that counsel committed misconduct in closing argument.
Introducing new evidence by reading the text message from the treating physician with
its call for accountability—a consideration far outside the realm of the doctor’s expertise
as the treating physician—was significant error. This type of behavior long has been
recognized as erroneous. Carnation Co. v. Hill, 115 Wn.2d 184, 186-87, 796 P.2d 416
(1990) (attorney mentioning lie detector test); State v. Claflin, 38 Wn. App. 847, 850-51,
690 P.2d 1186 (1984) (prosecutor reading poem by rape victim). Similarly, appeals to
local prejudice against outsiders long has been considered improper. State v. Reed, 102
4 The Washington Supreme Court applies the term “misconduct” to describe
erroneous behavior or statements by counsel rather than distinguish between purposeful
misconduct and attorney error. State v. Ish, 170 Wn.2d 189, 195 n.6, 241 P.3d 389
(2010). The word is considered a term of art. In re Pers. Restraint of Phelps, 190 Wn.2d
155, 165 n.3, 410 P.3d 1142 (2018).
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 35873-9-III
Rookstool et vir, et al v. Eaton, et al
13
Wn.2d 140, 146-47, 684 P.2d 699 (1984) (improper to disparage out-of-town counsel and
witnesses); Pederson, 72 Wn.2d at 83-84 (trial-long appeal to hometown pride).
Nonetheless, establishing misconduct is insufficient to require relief. QSD also
has to establish that it was prejudiced by the misconduct. The trial court was satisfied
that its remediation actions were adequate to ameliorate the harm resulting from the
misconduct, and that it could easily have cured the unchallenged arguments. We believe
that was a tenable basis for denying the mistrial and new trial motions. The total verdict
was far closer to that proposed by QSD than that sought by the plaintiffs. As the trial
judge noted, the verdict was also within the range articulated by the expert witnesses.
QSD argues that the prejudice is seen in the fact that the damages for MRR were
significantly greater than for her siblings, with particular emphasis on the fact that she
received 100 times that given CDR. But MRR was more injured than her siblings and
faced greater need for future medical services. It was understandable that her award was
significantly larger than those for her siblings. But the important point is that the award
also was within the scope of the expert testimony.
Trial judges are accorded great discretion in resolving posttrial motions because
their presence in the courtroom allows them to read the jury and consider the misconduct
with an understanding of its significance in the rough and tumble of a live trial. The trial
judge here carefully distinguished between the flagrant behavior of counsel in reading the
text message—much of which repeated what the doctor had said in his testimony—and
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 35873-9-III
Rookstool et vir, et al v. Eaton, et al
the issue of whether it significantly impacted the verdict. In the judge's considered
opinion, striking the evidence and giving the jury an immediate curative instruction was
adequate to remedy the most egregious of counsel's misconduct, and the judge found
support in the ultimate verdict for that view.
The court had a tenable reason for concluding that QSD did not establish
prejudice. The record supports that view of the case. The trial court did not abuse its
discretion.
Affirmed.
WE CONCUR:
Q_
Pennell, A.C.J.
14
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.