Brooks Abel, V. Grant County Public Utility District

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

BROOKS ABEL, No. 83348-1-I

Appellant, DIVISION ONE

v. UNPUBLISHED OPINION

GRANT COUNTY PUBLIC UTILITY

DISTRICT, KITTITAS COUNTY, STATE

OF WASHINGTON,

Respondent.

ANDRUS, C.J. — Brooks Abel appeals the dismissal of his personal injury

claim against the Grant County Public Utility District (District) after a jury found no

factual basis to toll the statute of limitations, rendering his claim untimely. Abel

contends the trial court erred in instructing the jury on the applicable burden of

proof on competency and challenges its evidentiary ruling relating to certain

cognitive assessments that the Washington Department of Social and Health

Services (DSHS) conducted of Abel during the statute of limitations period.

We conclude the trial court correctly instructed the jury that Abel had to

prove incompetency by clear, cogent and convincing evidence. We also conclude

the trial court did not abuse its discretion in permitting the District to question Abel’s

expert and its own expert about the contents of the DSHS cognitive assessments.

We therefore affirm.

Citations and pin cites are based on the Westlaw online version of the cited material.

No. 83348-1-I/2

FACTS

The Quilomene Dune, also known as the Sandbar, is a state-owned

undeveloped recreational site on the shore of the Columbia River. Grant County

Public Utility District (the PUD) owns and operates the Priest Rapids Hydroelectric

Project several miles downriver under a license issued by the Federal Energy

Regulatory Commission (FERC). The hydroelectric project includes Wanapum

and Priest Rapids Dams and is defined by a boundary that includes all lands and

waters necessary for the operation and maintenance of the project, as well as other

project purposes, including public recreation and protection of environmental and

cultural resources. The Sandbar lies within this project boundary and the PUD has

an easement from the State providing it access and control of the Sandbar for

hydroelectric project recreational area purposes, consistent with its FERC license.

On May 1, 2016, Abel and several others visited the Sandbar on a boat

owned by Abel’s friend. The group anchored near the Sandbar and some of the

group, including Abel, jumped off the side of the boat and waded to shore. The

water was, at most, chest deep at the location the group anchored. A short while

later, Abel returned to the boat and dove headfirst off the side. After he dove in,

Abel’s friends noticed he was floating face down in the water. When they went to

his aid, they found him unresponsive, pulled him to shore, and attempted to

resuscitate him. Abel was airlifted to Harborview Medical Center (Harborview)

soon after.

As a result of this incident, Abel suffered a severe cervical spine injury that

left him with decreased sensitivity and motor function from the chest down. He

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stayed at Harborview for approximately two months and is now completely

dependent on his family to care for his basic needs.

Abel filed his original complaint for negligence against the PUD on April 16,

2020, more than three years post-accident. The PUD raised, as an affirmative

defense, that Abel’s claims were barred by the statute of limitations. Abel alleged,

however, that because of his “medications, intensive rehabilitation and the

emotional trauma of his disabilities,” his mental incapacity prevented him from

understanding or appreciating “the nature of these legal proceedings” for

approximately one year following his accident. Abel contended that the applicable

three-year statute of limitations tolled during this period of incapacity under RCW

4.16.190.

At trial, a jury found that Abel failed to prove that he lacked the capacity to

understand the legal proceedings by clear, cogent, and convincing evidence for

the requisite period. The trial court accordingly entered a judgment upon the

verdict dismissing the case as time-barred.

Abel appeals.

ANALYSIS

Abel does not dispute that his negligence claim is subject to the three-year

statute of limitations contained in RCW 4.16.080(2) and that he filed this suit more

than three years following his injury. He contends, however, that the trial court

erred in instructing the jury on the correct standard for establishing incapacity to

toll the statute of limitations, and that the trial court impermissibly allowed the PUD

to elicit expert testimony about the contents of DSHS cognitive assessments. We

reject both arguments.

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Burden of Proof under RCW 4.16.190

Abel first argues that the trial court erred in instructing the jury that he must

establish his lack of capacity to understand the legal proceedings by “clear, cogent

and convincing evidence.” He contends that the appropriate burden of proof under

the tolling statute, RCW 4.16.190, is the preponderance of the evidence standard.

We disagree. 1

RCW 4.16.190(1) provides

if a person entitled to bring an action . . . [is] at the time the cause of

action accrued . . . incompetent or disabled to such a degree that he

or she cannot understand the nature of the proceedings, such

incompetency or disability as determined according to chapter

11.130 RCW . . . the time of such disability shall not be a part of the

time limited for the commencement of action.

The burden of proving events justifying the tolling of the statute of limitations rests

upon the party asserting it. Cannavina v. Poston, 13 Wn.2d 182, 190-91, 124 P.2d

787 (1942).

Jury instruction no. 8 provided:

A plaintiff is presumed competent.

A plaintiff has three years from the date of an injury to

commence a lawsuit. This is known as the three-year statute of

limitations.

This three year time period to bring a lawsuit may be

interrupted or stopped if a person is incompetent.

1 We reject the PUD’s argument that Abel waived this assignment of error by consenting to the

jury instruction and verdict form containing the “clear, cogent, and convincing” standard. Under CR

51(f), a party that fails to adequately support an objection to a jury instruction may still preserve its

appeal if the court is “clearly apprised” of the points of law in dispute. Falk v. Keene Corp., 113

Wn.2d 645, 658, 782 P.2d 974 (1989). Similarly, this court may exercise its discretion to review

any issue “arguably related” to issues raised before the trial court. Lunsford v. Saberhagen

Holdings, Inc., 139 Wn. App. 334, 338, 160 P.3d 1089 (2007). The parties engaged in extensive

argument and briefing below concerning the correct standard for proving incompetency. Abel

clearly objected to the clear, cogent and convincing burden of proof and argued that the correct

burden for the affirmative defense is preponderance of the evidence. Although Abel did not

subsequently object to the final burden of proof instruction, he adequately preserved the burden of

proof issue for appeal through his pretrial briefing.

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A plaintiff has the burden of proving by clear, cogent, and

convincing evidence that he became incompetent to such a degree

that he could not understand the nature of the proceedings for which

he claims the statute of limitations should be tolled.

If you find this burden has been met, then the time for

calculating the statute of limitations stops.

Once the time for calculating the statute of limitations stops, a

defendant may prove by a preponderance of the evidence that a

plaintiff has regained capacity, such that he was no longer

incompetent.

Abel argues this instruction misstated the law under RCW 4.16.190(1)

because he should have been required to prove his incompetency by a

preponderance of evidence standard generally applicable to civil actions. He

contends that while RCW 4.16.190(1) requires a plaintiff to prove incompetency

“as determined according to chapter 11.130 RCW,” this language should be

interpreted as not incorporating that statute’s burden of proof standard. Abel

maintains that under Rivas v. Overlake Hospital Medical Center, 164 Wn.2d 261,

189 P.3d 753 (2008), the tolling statute’s reference to chapter 11.130 RCW, the

Guardianship Act, incorporates only that act’s definition of incompetency and not

its provision relating to burden of proof.

Although we disagree with Abel’s reading of Rivas, we conclude that even

if the Guardianship Act’s burden of proof provision does not apply to RCW

4.16.190, our common law does. Under our well-established common law, the law

presumes competence and the burden of proving incompetency is proof by clear,

cogent and convincing evidence.

We review the trial court’s interpretation of RCW 4.16.190 and the

Guardianship Act de novo. Rivas, 164 Wn.2d at 266. “When engaging in statutory

interpretation, our goal is to ascertain and carry out the intent of the legislature.”

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State v. Barbee, 187 Wn.2d 375, 382, 386 P.3d 729 (2017). To determine

legislative intent, we first look to the statute’s plain meaning. State v. Varnell, 162

Wn.2d 165, 168, 170 P.3d 24 (2007). If the plain meaning of the statute is

ambiguous, we may also determine legislative intent by reviewing legislative

history. Barbee, 187 Wn.2d at 383.

RCW 4.16.190(1) provides that incompetency or disability is to be

“determined according” to the Guardianship Act. Under the Guardianship Act, an

adult is presumed competent and a court may appoint a guardian only for someone

whose competency is established “by clear and convincing evidence.” RCW

11.130.265(1)(a); RCW 11.130.310(1)(a). Under the plain language of RCW

4.16.190(1), to prove incompetency for the purpose of tolling the statute of

limitations, a party must prove incompetency as one would be required to prove it

under the Guardianship Act—with clear, cogent and convincing proof.

Our interpretation of RCW 4.16.190(1) is consistent with its legislative

history as well. The statute was first enacted in 1854 when the territorial assembly

passed a law providing that if one was “insane” at the time a cause of action

accrued, the duration of that disability would not count in the running of the statute

of limitations. LAWS OF 1854, § 11, at 364. The current version of the statute,

passed in 1977, replaced the “outdated and offensive language, procedures and

assumptions that have previously been used to identify and categorize mentally,

physically, and sensory handicapped citizens.” LAWS OF 1977, 1st Ex. Sess., ch.

80, § 1. The legislature explained:

It is legislative belief that use of the undefined term “insanity” be

avoided in preference to the use of a process for defining

incompetency or disability as fully set forth in [the Guardianship Act];

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that language that has allowed or implied a presumption of

incompetency or disability on the basis of an apparent condition or

appearance be deleted in favor of a reference to necessary due

process allowing a judicial determination of the existence or lack of

existence of such incompetency or disability.

Id. (emphasis added). The “process for defining incompetency” under the

Guardianship Act involves the presentation of clear, cogent and convincing

evidence to overcome the statutory presumption of competency.

Abel argues that our Supreme Court rejected this interpretation in Rivas.

We disagree. In that case, a plaintiff filed a medical malpractice claim three years

and one day after a medical procedure that caused her injuries. 164 Wn.2d at 265.

She argued that she was incapacitated in the intensive care unit after her surgery

and thus entitled to have the statute of limitations tolled for that period of time. Id.

The court of appeals, in interpreting the phrase, “as determined according to [the

Guardianship Act],” referred to the procedural requirements of the statute,

including the requirement that the ward be given at least 10 days’ notice of the

petition, to hold that RCW 4.16.190(1) required the plaintiff to establish that her

incapacity was of sufficient duration to permit a court to appoint a guardian and a

four-day period of incapacity was too short in duration to toll the statute of

limitations as a matter of law. Rivas v. Eastside Radiology Associates, 134 Wn.

App. 921, 928-30, 143 P.3d 330 (2006).

The Supreme Court rejected the court of appeals’ interpretation of RCW

4.16.190(1) and held that the temporal and procedural requirements for filing a

guardianship petition and conducting a guardianship hearing were not relevant to

determining whether the statute of limitations tolled. Rivas, 164 Wn.2d at 270.

Instead, it held, the Guardianship Act “provides the substantive definition of

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disability or incapacity for the purposes of tolling. In other respects, the statutes

act independently.” Id. It concluded that Rivas “was entitled to the benefit of former

RCW 4.16.190 if she can persuade the trier of fact that she was incapacitated to

the extent that she could not understand the nature of her cause of action when it

accrued as determined under the substantive standards of the guardianship act.”

Id. at 271.

Abel argues that under Rivas, the Guardianship Act’s burden of proof

provision is “procedural” and thus inapplicable to RCW 4.16.190(1). Abel’s reading

of Rivas is unpersuasive for two reasons. First, that case did not address the

Guardianship Act’s burden of proof provision. Where a legal theory is not

discussed in a case’s opinion, that opinion is not controlling in future cases where

the legal theory is properly raised. Berschauer/Phillips Constr. Co. v. Seattle Sch.

Dist. No. 1, 124 Wn.2d 816, 824, 881 P.2d 986 (1994). The only legal issue

addressed in Rivas was whether a period of incapacity of four days was long

enough to toll the statute of limitations, given the Guardianship Act’s 10-day notice

requirement for petitions filed under that statute.

Second, while Rivas rejected the notion that the “temporal and procedural

requirements” of the Guardianship Act were incorporated into RCW 4.16.190(1),

the burden of proof is considered a substantive aspect of a claim, not a procedural

rule. Spratt v. Toft, 180 Wn. App. 620, 636, 324 P.3d 707 (2014). We are

unconvinced that the Guardianship Act’s burden of proof provision can be equated

with the act’s notice requirements.

But even if the Guardianship Act’s burden of proof provision does not apply

to RCW 4.16.190(1), we must nevertheless refer to common law “to fill interstices

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that legislative enactments do not cover.” Dep’t of Soc. & Health Servs. v. State

Pers. Bd., 61 Wn. App. 778, 783, 812 P.2d 500 (1991) (citing RCW 4.04.010).2

Under well-established common law, the burden of proof required to overcome the

presumption of competency in civil cases is that of clear, cogent and convincing

evidence. Grannum v. Berard, 70 Wn.2d 304, 307, 422 P.2d 812 (1967); Page v.

Prudential Life Ins. Co. of America, 12 Wn.2d 109, 110, 120 P.2d 527 (1942);

Roberts v. Pacific Tel. & Tel. Co., 93 Wash. 274, 288, 160 P. 965 (1916).

Abel argues that Roberts should not apply because the case is too old to

be reliable and its holding is inconsistent with Rivas. Abel further contends that

Grannum and Page are distinguishable because those cases arose in the context

of one’s capacity to execute a contract rather than one’s incapacity for statute of

limitations purposes under RCW 4.16.190.

In Roberts, a lineman working for the telephone company fell from a

telephone pole, sustaining significant injuries. 93 Wash. at 276. The plaintiff

brought suit four months after the expiration of the statute of limitations. Id. He

argued that he was “insane” for a significant period of time after he was injured,

spending four months in an asylum, and that his lawsuit was timely. The trial court

instructed the jury that

[A] person is presumed to be sane until he is proved to be otherwise,

and that the burden is upon the person claiming insanity to prove it

by clear and convincing evidence; but that when insanity of a fixed

and settled nature is once established by such evidence, it is

presumed to continue until it is overturned by proof of sanity. You

2 RCW 4.04.010 provides:

The common law, so far as it is not inconsistent with the Constitution and

laws of the United States, or of the state of Washington nor incompatible with the

institutions and condition of society in this state, shall be the rule of decision in all

the courts of this state.

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are, therefore, instructed that, if plaintiff established that he became

and was insane on the day of the alleged injury, and such insanity

was of a fixed and settled nature, it would be presumed that he

continued insane until proven to be sane, and the burden would be

upon the defendant to establish his subsequent sanity. Even though

the plaintiff may have been insane on the day when injured, if it were

established that he became and was sane on any subsequent day

prior to January 14, 1911, then this action would be barred by the

statute of limitations.

93 Wash. 286-87. The Supreme Court affirmed this instruction as a correct

statement of Washington law. Id. at 287-88.

Roberts, despite its age, is directly on point and is thus binding on this court.

See 1000 Virginia Ltd. P’ship v. Vertecs Corp., 158 Wn.2d 566, 578, 146 P.3d 423

(2006) (“A decision by this court is binding on all lower courts in the state”). Abel

points to no case other than Rivas to suggest the Supreme Court has departed

from the standard laid out in Roberts. But Rivas did not explicitly overrule Roberts

and our Supreme Court does not overrule binding precedent sub silentio. MP

Medical Inc. v. Wegman, 151 Wn. App. 409, 417, 213 P.3d 931 (2009).

Moreover, our Supreme Court has relied on Roberts in much more recent

cases. In Page, the executrix of a decedent’s estate sued to collect proceeds from

the decedent’s life insurance policies. 12 Wn.2d at 102. The insurer presented

evidence that the decedent had contacted the insurer and requested to cash out

his life insurance policies before his death. Id. at 104. The estate alleged the

decedent lacked the capacity at the time of this request and the insurer was aware

of his diminished mental capacity. Id. at 105. The court, citing to Roberts, stated:

The rule relative to mental capacity to contract, therefore, is whether

the contractor possessed sufficient mind or reason to enable him to

comprehend the nature, terms and effect of the contract in issue. In

applying this rule, however, it must be remembered that contractual

capacity is a question of fact to be determined at the time the

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transaction occurred, that everyone is presumed sane; and that this

presumption is overcome only by clear, cogent and convincing

evidence.

Page, 12 Wn.2d at 109 (citations omitted).

And in Grannum, a plaintiff suing a physician for performing an allegedly

unauthorized surgical procedure, claimed he was mentally incompetent at the time

he gave his oral consent and signed the surgery consent form. 70 Wn.2d at 364.

The Supreme Court, again relying on Roberts, held that the evidence that the

plaintiff was depressed and heavily medicated was insufficient to overcome the

presumption of competency and failed to establish incompetency by clear, cogent

and convincing evidence. Id. at 309.

While Abel argues that Page and Grannum arose in the context of a

plaintiff’s competency to execute a contract rather than a plaintiff’s incompetency

to bring a lawsuit, he does not explain why this distinction is meaningful; in both

contexts the plaintiff sought or seeks to overcome the legal presumption of

competency in order to avoid the legal consequences of the plaintiff’s action

(signing a contract) or inaction (failing to file a lawsuit within the statute of

limitations). We see no basis for imposing the clear, cogent and convincing burden

of proof to void a contract because of one’s incompetence and imposing a lower

burden of proof to overcome the statute of limitations because of one’s

incompetence. The trial court did not err in giving jury instruction no. 8.

Admissibility of DSHS Assessments

Abel next argues that we should reverse the jury’s verdict because the trial

court erred in excluding evidence that DSHS had performed several cognitive

assessments following his accident, in which it deemed him to have no cognitive

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impairment. We conclude that to the extent there was any error in impeaching

Abel’s expert about the content of these assessments, it was harmless.

Before trial, the PUD identified six exhibits it intended to offer reflecting

evaluations that DSHS performed to assess Abel’s eligibility for long term care

benefits and services. Abel sought to exclude any reference to the DSHS

assessments on three grounds: they were generated for the purpose of

determining Abel’s eligibility for collateral source benefits, the documents were not

statements made for purposes of medical diagnosis and treatment under ER

803(a)(4) but to determine eligibility for government benefits, and the evidence was

unfairly prejudicial and thus inadmissible under ER 403. During argument on the

admissibility of the records, Abel raised the additional concern of “an expert

bootstrapping someone else’s conclusions, which goes to . . . ER 703.” The PUD

argued that it could question its own expert about the content of the assessments

if he relied on them in forming his opinions on Abel’s competency and it could ask

Abel’s experts if they considered the information in forming their opinions.

The trial court granted Abel’s motion in part, allowing the PUD to elicit

testimony about the assessments through the parties’ respective experts, but

requiring the PUD to remove any reference to insurance or third-party payment of

benefits before offering the exhibits.

The PUD did not offer the exhibits as substantive evidence at trial. Instead,

it used the records to cross examine Abel’s expert, Dr. Martha Glisky. Dr. Glisky,

a neuropsychologist, testified that for the first year after Abel’s injury, he was

cognitively and psychiatrically impaired to such an extent that he did not have “the

cognitive bandwidth to understand and participate in legal proceedings.” Dr. Glisky

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relied on the fact that initially, he was so heavily medicated that he was unable to

process anything for the first month after his injury. After he left the hospital,

Dr. Glisky stated, he became depressed and actively suicidal. His severe

depression, in her opinion, rendered Abel incapable of participating in and

understanding legal proceedings.

On cross examination, Dr. Glisky acknowledged that during that same year,

Abel was capable of consenting to various medical procedures and treatment, and

was able to understand the information his medical providers provided him about

his condition. She also admitted that when Abel was discharged from Harborview

in July 2016, two months after the accident, his medical records indicated he

scored a “7” on a cognitive assessment using a “Functional Independent Measure”

in which a “1” meant in need of total assistance and a “7” meant complete

independence. He received a similar score for problem solving, memory and

social interactions. Dr. Glisky also agreed that Abel had been assessed when he

began rehabilitation and his psychological assessment concluded that he was

cooperative, engaged, alert, attentive, with no memory deficits.

At that point, the PUD asked Dr. Glisky about the assessments of Abel’s

cognition performed by DSHS. Dr. Glisky acknowledged she had been provided

copies of assessments performed on July 6, 2016, January 4, 2017, March 20,

2017, July 7, 2017, and July 20, 2019. She testified that each document contained

a “cognitive performance scale” or CPS score of zero. She acknowledged that this

score, according to the key in the documents, corresponded to the assessment

that Abel had exhibited no problems with decision-making abilities, making himself

understood, or recalling recent events.

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On redirect, Dr. Glisky explained that while she has seen and used these

documents with her own patients, the CPS scores did not change her opinion

about Abel because the scores are “a very basic screening measure” that

evaluates “basic interactions and conversations.” And she did not know the

credentials or educational experience of the individual who performed Abel’s

assessments.

In the PUD’s case in chief, it called Dr. Mark McClung to testify about his

assessment of Abel’s ability to understand the nature of legal proceedings during

the same period of time. Dr. McClung, a forensic psychiatrist, testified that for the

first two months of Abel’s hospitalization, he was not competent to make decisions

about initiating a lawsuit because of the level of pain he was experiencing and pain

medications he was taking. But, Dr. McClung said, by mid-July 2016, there was

nothing in Abel’s medical records to suggest he was experiencing any cognitive

impairments or having difficulties making decisions.

Dr. McClung walked the jury through Abel’s Harborview occupational and

physical therapy records and discharge summary, the October 2016 rehabilitation

psychological evaluation, and the medical records from his primary care provider

from January 2017. In each of these medical records, Dr. McClung opined that

Abel demonstrated his ability to participate fully in therapy, was highly motivated

to succeed, was doing an excellent job in retaining the information his care team

provided regarding his spinal cord injury, was able to communicate his wishes and

needs and was comfortable doing so.

Dr. McClung then discussed the CPS scores contained in the DSHS

assessments. He explained:

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A CPS score is a – is a brief scoring tool. It’s mainly done by

observation, more than questionnaire, looking at whether someone

can make themselves understood, whether or not they can make

decisions and that appears – and if their short-term memory is intact.

....

It’s primarily done by observation. There can be a short – there can

be a short questionnaire that specifically looks at someone’s ability

to remember, say, a list of words or numbers after a few minutes.

But my understanding, from the way that [it] is used, it’s primarily a

score based on observations of the patient.

Dr. McClung testified that the lower a CPS score, the less impairment that is

present and the higher the score, the more problems are seen with verbal

communication, memory or decision-making. And a score of zero, according to

Dr. McClung, suggests there is no impairment seen by the provider.

Dr. McClung disagreed with Dr. Glisky’s opinion that Abel’s mental health

rendered him incapable of understanding or participating in legal proceedings:

I’d say overall my disagreement [with Dr. Glisky] is that she appears

to be asserting that Mr. Abel’s symptoms of anxiety, depression, and

suicidality, you know, rendered him incompetent, unable to – unable

to think, unable to cognitively function about a conversation

regarding potential litigation or legal issues.

And, again, I would go back to what I had talked about before;

that those symptoms change someone’s willingness. It changes

someone’s resilience. It changes someone’s ability to stick to –

focus and stick to things for an extended period of time. But it would

not render him absolutely unable to do that by any means.

....

And given – again, given the scores I see and the clinical

observations from July of 2016 on, no one is describing – none of the

clinicians or caregivers who work with him are describing any

observable difficulties with his communication, with his memory, with

his ability to communicate a preference or make decisions. And

that’s – and that’s during periods when he was significantly

depressed, during periods when he was frequently suicidal.

Abel argues the trial court erred in allowing the PUD to question the two

experts about the CPS scores because it effectively permitted the PUD to offer the

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hearsay opinions of a nontestifying expert. We review the trial court’s evidentiary

rulings for abuse of discretion. Kirk v. Wash. State Univ., 109 Wn.2d 448, 459,

746 P.2d 285 (1987).

ER 703 permits experts to base their opinions on facts not otherwise

admissible if they are of a type reasonably relied on by experts in the particular

field. In re Detention of Marshall, 156 Wn.2d 150, 162, 125 P.3d 111 (2005).

“Thus, the rule allows expert opinion testimony based on hearsay data that would

otherwise be inadmissible in evidence.” Id. In addition, ER 705 grants the trial

court discretion to allow the expert to relate hearsay or otherwise inadmissible

evidence to the trier of fact to explain the reasons for his or her expert opinion,

subject to appropriate limiting instructions. Id. at 163.

Abel contends that, while ER 703 may permit an expert to express an

opinion based upon facts or data that are not themselves admissible into evidence,

a party may not question an opposing party’s expert about the contents of reports

authored by nontestifying witnesses. He relies on Washington Irrigation and

Development Co. v. Sherman, 106 Wn.2d 685, 724 P.2d 997 (1986) for this

argument.

In Sherman, an injured worker filed a disability claim based on an on-the-

job back injury. The Department of Labor and Industries (Department) found that

Sherman had a permanent partial disability. Id. at 686. Sherman subsequently

sought to reopen his claim, alleging that his injury had worsened. Id. The

Department denied the application, but the Board of Industrial Insurance Appeals

(Board) found that Sherman’s condition had become so aggravated that he was

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permanently and totally disabled. Id. at 686-87. At a trial in superior court, a jury

reversed the Board’s decision.

On appeal, Sherman challenged the trial court’s ruling allowing the

Department to introduce evidence, through the cross examination of Sherman’s

medical expert, on the fact that Sherman’s medical providers had noted

degenerative changes in his spine that would have existed before his industrial

injury. Id. at 687. Sherman argued the evidence was inadmissible hearsay

because the author of the report did not testify. Id. The Department argued that

discussion of the medical reports was properly allowed under ER 703 and 705.

The Supreme Court held that the medical records were hearsay under ER

802 and questioning the worker’s expert about the contents of medical records on

which that expert did not rely in forming their opinion was improper under ER 703

and 705 because it “improperly put before the jury both a diagnosis of Sherman’s

condition and an inference that his condition was not causally related to the

industrial injury.” Id. at 687. “Until defendant established that plaintiff had relied

on the report of the other doctor, it was improper for the defendant to read from

that report in cross-examining plaintiff’s witness.” Id. at 689. It determined that the

error was not harmless because the inadmissible evidence went to the “central

issue” of the case—the cause and extent of the worsening of Sherman’s condition.”

Id. at 690.

Since Sherman, this court has recognized that it is improper to impeach an

expert witness’s testimony with the contents of a nontestifying professional’s report

that the witness had seen but not relied on in formulating opinions. State v.

Hamilton, 196 Wn. App. 461, 477-78, 383 P.3d 1062 (2016).

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The PUD contends that it is sufficient under Sherman for an expert to have

seen the medical records and points to the fact that Dr. Glisky had not only

reviewed the DSHS assessments but she testified she had used similar

assessments as a basic screening tool with her own patients in the past. But the

testifying expert witnesses in Sherman and Hamilton had both seen and reviewed

the otherwise inadmissible reports. 106 Wn.2d at 687. The courts nevertheless

concluded that the proponent of the evidence had not established that the experts

had relied on them to form their opinions.

In this case, the PUD did not establish that Dr. Glisky relied on the DSHS

evaluations in formulating any of her opinions on Abel’s incapacity. While she

testified she had seen them, she clearly testified that she believed the screening

was too superficial to have any value. The only inference we can draw from Dr.

Glisky’s testimony is that she did not rely on the DSHS documents because she

deemed them unreliable. Under Sherman, the PUD’s mode of impeaching Dr.

Glisky’s opinion—by reading the contents of the DSHS assessment—was not

authorized by ER 703 or 705.

Nevertheless, unlike Sherman, we conclude the error was harmless

because the evidence was admissible through Dr. McClung. Error in the inclusion

of hearsay evidence is harmless unless it was reasonably probable that it changed

the outcome of the trial. State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120

(1997). The PUD established that Dr. McClung relied on these records in forming

his opinions. Unlike Dr. Glisky, Dr. McClung listed the DSHS evaluations as

among the materials he used to formulate his opinion on Abel’s capacity. Under

ER 703 and 705, nothing prohibited the PUD from asking Dr. McClung about the

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content of these assessments and the impact of them in formulating his opinions.

The trial court did not abuse its discretion in allowing the PUD to question Dr.

McClung about the content of these evaluations. See In re Det. of P.K., 189 Wn.

App. 317, 324-25, 358 P.3d 411 (2015) (trial court did not abuse its discretion in

permitting an expert witness social worker to testify to the contents of patient’s

medical records that were not entered as substantive evidence and were used as

a basis for the social worker’s opinion on the patient’s mental state). This case is

distinguishable from Sherman because, here, the contents of the objectionable

records were properly admitted through the defense expert, Dr. McClung.

Given that the content of the assessments was admissible to explain the

basis of Dr. McClung’s opinions, cross examining Dr. Glisky about the same

information did not change the outcome of this trial. Any error in the PUD’s method

of cross-examining Dr. Glisky was therefore harmless.

Admissibility of Abel’s Alcohol Consumption

Abel next argues that the trial court erred in admitting evidence that he had

consumed alcohol on the day of his accident, thereby tainting the jury and causing

prejudice to the case as a whole, including the jury’s verdict that he had failed to

establish incompetency. We conclude that the evidence, even if inadmissible, was

harmless.

Abel relies on Needham v. Dreyer, 11 Wn. App. 2d 479, 454 P.3d 136

(2019), a medical negligence case, in which this court held that the trial court erred

in allowing a defense expert to testify that the plaintiff suffered from chronic

alcoholism and his alcohol use on the day of the doctor visit at issue could have

caused his injuries. We reversed the jury verdict that no breach of the standard of

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care had occurred because the expert testimony was so pervasive and

inflammatory that it likely affected the jury’s perception of the plaintiff. Id. at 495-

97.

The Needham case is distinguishable because the plaintiff freely admitted

his alcohol consumption, whereas Abel did not. Moreover, the PUD expert

described Abel’s blood alcohol level as 0.03 mg/DL, a level well below the legal

limits. While there was lay testimony that Abel and his friends were drinking

alcohol, the witnesses all testified Abel was not inebriated and showed no signs of

impairment, such as slurred speech or impaired balance. The record here was not

“replete with prejudicial discussion” of Abel’s alcohol use, as it was in Needham.

11 Wn. App. 2d at 498. Instead, the trial court limited the expert testimony here to

Abel’s blood alcohol content when he arrived at the hospital.

Finally, the jury decided this case on statute of limitations grounds, an issue

with no logical connection to the fact of Abel’s consumption of alcohol on the day

of the accident.

We thus conclude that any error in the admission of evidence that Abel

consumed alcohol on the day of his accident was harmless.

Recreational Use Immunity Ruling

Finally, Abel challenges the trial court’s decision that RCW 4.24.210, the

recreational use immunity statute, applied as a matter of law. He contends this

ruling constituted “structural error” in his trial. But our Supreme Court has held that

the doctrine of structural error is strictly limited to criminal trials. In re Det. of Reyes,

184 Wn.2d 340, 346, 358 P.3d 394 (2015). And Abel draws no connection

between the court’s ruling on the recreational use immunity statute and the jury’s

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No. 83348-1-I/21

verdict on statute of limitations. The trial court’s decision that the PUD met the

elements of recreational use immunity as a matter of law cannot reasonably be

said to have affected the jury’s verdict on the statute of limitations and any error is

the trial court’s ruling on recreational use immunity was also harmless.

Affirmed.

WE CONCUR:

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