Opposition Brief — Alicia Thompson, Petitioner v. Janelle Henderson
Supreme Court briefMay 1, 2023
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No. 22-823
In the Supreme Court of the United States
__________
ALICIA THOMPSON,
Petitioner,
v.
JANELLE HENDERSON,
Respondent.
On Petition for Writ of Certiorari to
the Washington Supreme Court
__________
BRIEF IN OPPOSITION
__________
DAVID B. OWENS
Counsel of Record
LOEVY & LOEVY
P.O. Box 85110
Seattle, WA 98145
(312) 243-5900
david@loevy.com
May 1, 2023
VONDA M. SARGENT
CAROL FARR
THE LAW OFFICES OF
VONDA M. SARGENT
119 1st Ave S., Ste. 500
Seattle, WA 98104
(206) 838- 4970
sisterlaw@me.com
i
QUESTION PRESENTED
The Washington Supreme Court issued a
decision remanding this state tort suit for
evidentiary hearings on issues of state law and that
have yet to occur. That decision does not address any
federal issue, as none were properly presented at the
trial level or on appeal. That being the case, the
question presented is:
Whether this Court has the jurisdiction to
intervene in ongoing state court proceedings where
any federal issues, (a) were not properly presented,
(b) are premature and have been not finally
adjudicated, and (c) may be rendered moot by the
ongoing proceedings?
ii
TABLE OF CONTENTS
QUESTION PRESENTED ...................................... i
TABLE OF AUTHORITIES .................................... iii
INTRODUCTION ...................................................... 1
STATEMENT OF THE CASE .................................. 1
REASONS FOR DENYING THE WRIT ................. 6
I.
BECAUSE JURISDICTION IS LACKING,
THIS CASE PRESENTS AN EXTREMELY
POOR VEHICLE ........................................... 6
A. The New Federal Claims Were Not
Properly Presented ................................. 6
B. The Newly Alleged Federal Claims Are
Unripe ..................................................... 9
C. The Decision Below Does Not Involve A
Final Adjudication of Any Federal
Issue ...................................................... 11
II.
THE
PETITION
SEEKS
EXTREME
INTERFERENCE OVER ONGOING STATE
COURT RULEMAKING ANTITHETICAL
TO FEDERALISM ..................................... 14
III. THE
NEWLY-ASSERTED
FEDERAL
ISSUES ARE MERITLESS ......................... 18
CONCLUSION ........................................................ 21
iii
TABLE OF AUTHORITIES
Page(s)
Cases
Adams v. Robertson, 520 U.S. 83 (1997) ............. 6, 8
American Surety Co. v. Baldwin,
287 U.S. 156 (1932) .......................................... 19
Arizona State Legislature v. Arizona Independent
Redistricting Commission,
576 U.S. 787 (2015) .......................................... 15
Oregon v. Ice, 555 U.S. 160 (2009) ......................... 15
Board of Directors of Rotary International v. Rotary
Club of Duarte 481 U.S. 537 (1987) .................. 8
Buck v. Davis, 580 U.S. 100 (2017)........................ 21
Cardinale v. Louisiana,
394 U.S. 437 (1969) .................................. 6, 7, 21
Cox Broadcasting Corp. v. Cohn,
420 U.S. 469 (1975) .......................................... 13
Danforth v. Minnesota,
552 U.S. 264 (2008) .................................... 14, 15
Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993) .......................................... 14
Dobbs v. Jackson Women’s Health,
142 S. Ct. 2228 (2022) ................................ 15, 16
Edmonson v. Leesville Concrete Co., Inc.,
500 U.S. 614 (1991) ...................................... 16, 21
Erie R. Co. v. Tompkins, 304 U.S. 64 (1938) ......... 15
iv
Cases (cont).
Ex Parte Young, 209 U.S. 123 (1908) ...................... 8
Florida v. Thomas, 532 U.S. 774 (2001) ................ 13
Frye v. United States, 293 F. 1013
(D.C. Cir. 1923) ................................................ 14
Georgia v. McCollum, 505 U.S. 42 (1992) ............. 16
Heiner v. Donnan, 285 U.S. 312 (1932) ........... 19, 20
Huffman v. Pursue, Ltd.,
420 U.S. 592 (1975) ............................................ 8
Illinois v. Gates, 462 U.S. 213 (1983) ...................... 6
Juidice v. Vail, 430 U.S. 327 (1977) ........................ 8
Liljeberg v. Health Servs. Acquisition Corp.,
486 U.S. 847 (1988) .......................................... 16
Lindsey v. Normet, 405 U.S. 56 (1972) .................. 19
Mathews v. Eldridge, 424 U.S. 319 (1976) ............ 18
McLaughlin v. Florida, 379 U.S. 184 (1964) ......... 21
Middlesex Cnty. Ethics Comm. v. Garden State Bar
Ass’n, 457 U.S. 423 (1982) ............................... 12
Miranda v. Arizona, 384 U.S. 436 (1966) .............. 16
Pena-Rodriguez v. Colorado,
580 U.S. 206 (2017) ............................................ 15
Powers v. Ohio, 499 U.S. 400 (1991) ........................ 16
Railroad Comm’n of Tex. v. Pullman Co.,
312 U.S. 496 (1941) ............................................ 9
Ricci v. DeStefano, 557 U.S. 557 (2009) ................ 20
v
Cases (cont).
San Antonio Independent School Dist. v. Rodriguez,
411 U.S. 1 (1973) ........................................ 15, 17
State v. Berhe, 193 Wn.2d 647
(2019) .........................3, 4, 5, 7, 10, 13, 14, 17, 18
State v. Jackson, 75 Wash. App. 537 (1994)........ 3, 4
State v. Jefferson, 429 P.3d 467 (2018) .................... 17
Texas Department of Housing & Community Affairs
v. Inclusive Communities Project, Inc.,
576 U.S. 519 (2015) .......................................... 20
Texas v. United States, 523 U.S. 296 (1998) ........... 9
Thomas v. Union Carbide Agricultural Products
Co., 473 U.S. 568 (1985) .................................... 9
Trump v. New York, 141 S. Ct. 530 (2020) .............. 9
Wilkinson v. Austin, 545 U.S. 209 (2005) .............. 19
Younger v. Harris, 401 U.S. 37 (1971) ..................... 8
Zinermon v. Burch, 494 U. S. 113 (1990) ........ 12, 18
Other Authorities
Wash. Gen. R. 37....................................................... 17
28 U.S.C. § 1257 ....................................................... 6
INTRODUCTION
The Petition seeks federal interference in
ongoing, non-final state-court proceedings on an
issue of state law. No federal issue was properly
presented below and the ongoing state proceedings
may moot the newly-asserted federal issues. It
would be an extreme aberration from precedent,
practice, and statutory authority for this Court to
halt administration of a state trial court’s ongoing
evidentiary inquiry on issues of state law based upon
speculation about how the hearing might play out.
The Petition should be denied.
STATEMENT OF THE CASE1
In 2014, at roughly 40 miles-per-hour, Petitioner
1, Respondent objects the Petition’s factual background. The
Petition includes selective excerpts of the trial record, ignores
the arguments made by Respondent below unmentioned in the
ruling below, and offers a misinterpretation the ruling. The
Washington decision was based on the entire trial record; its
opinion offered “examples” (not an exhaustive list); and,
contrary to the suggestion in the Petition, the determination
was not limited to defense counsel’s closing arguments.
Compare Pet. (i) (question presented asserting the decision
below rested “solely on” the defense’s closing arguments), 2, 10,
17, & 30 (framing the record below as pertaining to defense
counsel’s closing argument), with Pet. App. 20a (focusing on
appeals to racial bias “throughout the trial” and then offering
examples), id. at18a (framing Petitioner’s argument as
concerning cross-examination, closing arguments, and the
jury’s “astonishingly small award” as supporting a conclusion
that appeals to racial bias impacted the verdict), and id. 36a
(McCloud, J., concurring) (relying on the “balance of the
transcript” for the conclusion that the “trial was infected with
racial bias). Given the jurisdictional defects with the Petition,
these issues are not worth substantive discussion.
2
Alicia Thompson rear-ended Respondent Janelle
Henderson while driving. Pet. App. 4a. There is no
dispute Petitioner caused the accident. Id. at 4a,
128a. Nonetheless, Respondent was forced to bring
a state tort suit against Petitioner (i.e., her
insurance company) for damages she suffered when
Petitioner crashed into her car. In addition to
whiplash and distress, Respondent sought damages
for exacerbation of a preexisting condition. Id.
In discovery, Petitioner’s counsel hired an
investigator to surveil Respondent for nearly 79
hours over nine months. Id. at 8a-9a. This included
taking clandestine videos of Respondent. Id. Once
alerted to the surveillance, Respondent took
“painstaking efforts” to obtain evidence about it,
including trying to obtain all videos, any notes taken
by investigators, and information about how
extensive the monitoring was. Id. at 32a. Despite a
court order, Petitioner stonewalled discovery into
nearly 79 hours of surveillance aside from producing
one 17-minute video of Respondent. Id. at 8a-10a.
The trial was (surprisingly) contentious given
liability was undisputed. The 17-minute video was
played for the jury, though Petitioner’s witnesses
failed to account for the other nearly 79 hours of
surveillance. Respondent was hamstrung in her
ability to demonstrate the 17-minute snippet was
not representative of the harm caused in the crash.
Pet. App. 8a-10a. In the end, Respondent suggested
the jury award damages at $250 per day for several
years, and requested an award of $3.5 million. Id. at
3
95a-96a. Petitioner suggested the $250 figure apply
for eight months, pegging damages at $60,000. Id. at
127a. The jury entered an “astonishingly small”
verdict of $9,200. Pet App. 18a, 149a.
Respondent moved for a new trial or for additur
for an award of $60,000, arguing Petitioner’s
discovery violations and the likelihood of racial bias
affected the surprisingly low verdict. See Pet. App.
10a-11a. Soon after, drawing on precedent from the
1990s, the Washington Supreme Court decided State
v. Berhe which described an objective two-step
inquiry for determining whether an allegation that
racial bias has affected a verdict demands an
evidentiary hearing under Washington law. 193
Wash.2d 647, 665-69 (2019) (citing State v. Jackson,
75 Wash. App. 537 (1994)); Pet. App. 12a. Under
Berhe, if a party makes a prima facie showing that
an objective observer could view race was a factor in
the verdict, the court must conduct an evidentiary
hearing to determine whether race in fact played a
role in the jury’s verdict and if so order a new trial.
193 Wash.2d at 665. Respondent sought a Berhe
hearing and Petitioner responded in opposition. The
motion was denied. Pet. App. 12a, 37a.
Respondent appealed to the Washington
Supreme Court arguing a new trial was warranted
due to the discovery violations and on the basis
racial bias impacted the verdict, the latter of which
Respondent argued at least required an evidentiary
hearing. under Berhe. Id. at 37a. In response,
Petitioner did not argue Berhe’s rules for conducting
4
post-trial evidentiary hearings or governing a prima
facie showing of racial bias were novel,
unconstitutional, or unlawful. See generally BIO
Appendix. Instead, Petitioner admitted that “Berhe
reaffirmed the standard in State v. Jackson that for
a motion for a new trial based on allegations of juror
racial bias, the trial court should conduct an
evidentiary hearing before ruling on a new trial
motion.” Id. at 60a. Invoking Berhe and Jackson,
Petitioner argued a prima facie case had not been
made and so no evidentiary hearing was required.
Id. at 60a-62a.
The Washington Supreme Court reversed. As to
Petitioner’s refusal to produce discovery about the
surveillance, the Court found the “degree of the
defense team’s refusal to cooperate in this case was
egregious,” as Petitioner’s team “failed to produce
relevant evidence despite [Respondent’s] counsel’s
painstaking efforts to obtain it through the discovery
rules.” Pet. App. 32a. Recognizing the trial court’s
role to address sanctions in the first instance, the
court remanded to determine the extent of
appropriate sanctions up to and including a new
trial that excludes the 17-minute video. Id.
As to the racial bias issue, the state trial judge
had erred as a matter of state law by making a
subjective determination rather than an objective
one. Id. at 24a. Under the applicable state rule,
Respondent had made a prima facie case that racial
bias might have affected the verdict in light of the
“astonishingly small award” and the entire trial
5
proceedings. Id. at 18a. As above, the high court
recognized the trial court’s role to conduct factual
development in the first instance and remanded for
an evidentiary hearing. Id. at 18a-20a.
The Washington Supreme Court did not overrule
any precedent or augment Washington’s pattern
jury instructions. Id. Instead, every Justice on the
Washington Supreme Court agreed implicit racial
bias could have impacted the verdict, and so a statelaw evidentiary hearing for further factual
development and resolution of that issue was
appropriate. Id. at 20a-26a; id. at 34a-36a. Justice
McCloud concurred to emphasize that some of the
defense arguments in isolation were routine (and
permissible) attacks on witness credibility, and the
Court’s decision was not overruling established
precedent endorsing vigorous cross-examination, id.
at 35a n.1. Regardless, as a matter of state law,
remand was required because the “balance of the
transcript provides a prima facie showing that the
trial was infected with racial bias.” Id. at 36a.
Respondent filed a motion to reconsider that for
the first time attacked the Berhe hearing procedure
and asserting federal issues not previously raised
before the trial court or on appeal. Pet. App.50a. The
motion was denied without opinion. Id. at 49a.
The state-court proceedings are ongoing and the
evidentiary hearings have yet to occur.
6
REASONS FOR DENYING THE WRIT
I.
BECAUSE
JURISDICTION
IS
LACKING, THIS CASE PRESENTS
AN EXTREMELY POOR VEHICLE
This Court’s review of state court decisions is
limited under 28 U.S.C. § 1257, which conscribes
review to final judgements involving issues of
federal law. The Petition should be denied, and
jurisdiction is lacking, because (1) the newlyasserted federal issues were not properly presented,
(2) the federal issues are unripe, and (3) the decision
below did not finally adjudicate any federal issues
and the ongoing proceedings may moot the newlyraised federal issues entirely.
A. The New Federal Claims Were Not
Properly Presented
This Court “will not consider a petitioner’s
federal claim unless it was either addressed by, or
properly presented to, the state court that rendered
the decision.” Adams v. Robertson, 520 U.S. 83, 86
(1997); see also Illinois v. Gates, 462 U.S. 213, 21819 (“[T]here are reasons of peculiar force which
should lead us to refrain from deciding questions not
presented or decided in the highest court of the state
whose judicial action we are called upon to review.”)
(citations omitted). These rules apply here.
1. Where the “sole federal question argued” has
not “been raised, preserved, or passed upon in the
state courts below,” jurisdiction is lacking under
§ 1257 and review must be denied. Cardinale v.
7
Louisiana, 394 U.S. 437, 438 (1969). Additional
structural concerns animate this rule. For one,
“[q]uestions not raised below are those on which the
record is very likely to be inadequate, since it
certainly was not compiled with those questions in
mind.” Id. This Court does not conduct initial review
because “in a federal system it is important that
state courts be given the first opportunity to consider
the applicability of state [rules] in light of
constitutional challenge,” since state rules “may be
construed in a way which saves their
constitutionality.” Id. An issue may also be mooted
or resolved on an adequate and independent state
ground, and the State “should be given the first
opportunity to consider them.” Id.
Though Berhe had established the objective,
prima facie standards and requirement for an
evidentiary hearing now challenged, Petitioner did
not assert any federal issues to these state rules at
the trial level or before the Washington Supreme
Court issued its decision. As a result, the petition
must be denied.
The Petition apparently assumes, without saying
so directly, that Petitioner’s belated challenge to the
Berhe procedure after the decision below was issued
is sufficient to warrant certiorari and can even
supply the basis for the extreme measure of
summarily reversing. Pet. 3. If that is the
assumption, Petitioner is mistaken. Not only would
intervention
exceed
jurisdiction,
contradict
federalism, and rely on an inadequate record, it
8
would reward litigants who forfeit arguments in
state courts and then attempt to obtain this Court’s
review simply through filing an ex post petition for
reconsideration. This Court has rejected such
maneuvers, and petitions that present “issues raised
clearly for the first time in a petition for rehearing
when the state court is silent on the question” are
properly denied. Adams, 520 U.S. at 89 n.3; Bd. of
Dir. of Rotary Int’l v. Rotary of Duarte 481 U.S. 537,
549-50 (1987) (denying petition where petitioner did
not “present the issues squarely to the state courts
until they filed their petition for rehearing,” and
“[t]he court denied the petition without opinion”).
2. Intervening in an ongoing state proceeding
where additional state procedures are set to play out
is also contrary to this Court’s doctrines forbidding
federal interference “where the proceedings were
already pending in a state court.” Ex Parte Young,
209 U.S. 123, 162 (1908); see Juidice v. Vail, 430 U.S.
327 (1977) (abstention required for ongoing state
civil proceedings); Huffman v. Pursue, Ltd., 420 U.S.
592 (1975) (same); Younger v. Harris, 401 U.S. 37
(1971) (same for ongoing criminal proceedings).
Petitioner is not “permitted the luxury of federal
litigation of issues presented by ongoing state
proceedings,” Huffman, 420 U.S. at 605. Premature
federal review is especially inappropriate here as
federal questions may be mooted (or at least
addressed) in the ongoing proceedings the
Washington high court itself recognized should be
first decided by a trial judge for fact finding.
9
3. Review is also inappropriate because are
“obvious methods for securing a definitive ruling in
the state courts.” Railroad Comm’n of Tex. v.
Pullman Co., 312 U.S. 496, 501 (1941). In the
hearing dedicated to Petitioner’s defenses, should
Petitioner believe federal issues apply, she will have
the opportunity to raise them in state court. And, if
she wants to preserve federal review over these state
court procedural rules, she must.
B. The Newly-Alleged Federal Claims
Are Unripe
Even if federal issues were hypothetically
properly presented, any challenge to the state-law
procedures remains premature. Claims “contingent
[on] future events that may not occur as anticipated,
or indeed may not occur at all,” are unripe for
adjudication. Texas v. United States, 523 U.S. 296,
300 (1998) (citing Thomas v. Union Carbide
Agricultural Products Co., 473 U.S. 568, 58081(1985)).
This “case is riddled with contingencies and
speculation that impede judicial review.” Trump v.
New York, 141 S. Ct. 530, 535 (2020). For example,
the trial court could grant a new trial due to the
discovery violations, mooting the racial bias issue
altogether because vacatur of the prior verdict ends
the inquiry about whether the already-vacated
verdict should be vacated on a separate basis.2
2 Due to retirement, the judge who will oversee the hearings is
currently undetermined. Once assigned, Respondent intends to
10
If the Berhe hearing does happen, the trial judge
will make a number of routine determinations about
what evidence will be admitted, and then make its
findings about the issue based upon that record.
Petitioner engages in imaginative speculation about
what evidence will be admitted or excluded at the
evidentiary hearing and what arguments will
“seemingly” be permitted or off-limits. Pet. 25. But,
as the Petition acknowledges, the Washington
Supreme Court did not address or provide
“guidance” on these state-court evidentiary issues.
Id. Instead these routine fact issues about what
evidence or arguments will be permitted in a statecourt hearing will be decided by the state-court trial
judge in the first instance.
Compounding the contingencies, still operating
on the uncertain assumption a Berhe hearing even
happens, the trial court could find racial bias did not
impact the verdict; i.e., that Petitioner should
prevail. If Petitioner wins at the Berhe hearing, the
claims that it is “functionally impossible” to prevail
and there is “no practical way for petitioner to
succeed” will be proven incorrect. Pet. 24. It is of
course speculative to portend what rationale might
support such a hypothetical but one obvious
alternative could be a finding that the surprisingly
low verdict was due to the egregious discovery
ask the judge to bifurcate the issues and address her request
for a new trial excluding the 17-minute video as a discovery
sanction apart from and in advance of the Berhe hearing. If
Respondent obtains that relief, the Berhe issue will be moot.
11
violations and not any form of racial bias. Or the
trial court could find racial bias did not impact the
jury’s verdict for some other reason. The speculative
nature of these issues precludes review.
The Petition’s suggestion that any new trial, if
ordered, will necessarily implicate federal issues
related to racial bias stacks speculation upon
speculation. Pet. 30. Even putting to the side all of
the different paths that may lead to a new trial, the
Petition assumes there will again be a verdict
Respondent believes was impacted by racial bias. Id.
But, there is no reason to assume that another trial
even in this same case should be expected to raise
issues of racial bias at all. Any assumption made by
Petitioner or amici that basically every trial in
Washington might implicate issues of racial bias is
extremely troubling and unfounded. The racial bias
issues in the trial below, and that every member of
the Washington Supreme Court found implicated
state standards, should be presumed as an outlier
not the routine. More important, whether a new trial
implicates any state-law issue of racial bias, let
alone any federal issue on top of that, is pure
speculation insufficient to permit review now.
C. The Decision Below Does Not Involve
A Final Adjudication of Any Federal
Issue
There
has
been
no
final
state-court
determination about issues of state law. And,
unsurprising given the lack of presentment, there
12
has been no final state-court determination about
any issues potentially implicating federal law. There
is a “strong federal policy against federal-court
interference with pending state judicial proceedings
absent extraordinary circumstances.” Middlesex
Cnty. Ethics Comm. v. Garden State Bar Ass’n, 457
U.S.
423,
431
(1982)
No
extraordinary
circumstances exist here.
1. By definition, the now-asserted procedural due
process issues cannot be final, as the process
remains ongoing. A procedural due process claim is
not “complete” until “‘the State fails to provide due
process.’” Zinermon v. Burch, 494 U. S. 113, 126
(1990). Under established law, a petitioner cannot
challenge state process as inadequate while that
process is ongoing. The Washington Supreme
Court’s decision remanded for an evidentiary
hearing and the petition’s claims depend upon an
absolute failure of state-court process in those yetto-be had hearings. Regardless of the merits of the
issue, any federal review is premature.
2. The same problems with finality preclude
review of any asserted equal protection claim at this
juncture. Such a claim depends entirely on what will
happen in state court.
None of these issues were addressed below, as
they were not presented before the Washington
Supreme Court issued its decision. Nonetheless, the
Petition purports to criticize the Washington
Supreme Court because it “never applied strict
13
scrutiny,” Pet. 28, and even asserts Washington
“improperly
eschewed
the
strict-scrutiny
framework.” These are bold statements. But, they
are wrong (and misleading). The Washington
Supreme Court never considered strict scrutiny
because the Berhe procedure now complained of was
not challenged as unconstitutional in the state court
proceedings. If Petitioner believed the state-court
evidentiary rule in Berhe violated equal protection,
she had the opportunity to argue that to the state
courts before they reached their decisions. It is no
fair criticism of a judicial opinion that it did not
addressing issues that were not raised until after the
decision was issued. The newly-asserted federal
issues were neither raised nor finally decided below.
3. Despite the defects therein, the Petition seeks
to invoke a narrow exception for review of non-final
decisions where “the federal issue, finally decided by
the highest court in the State, will survive and
require decision regardless of the outcome of future
state-court proceedings.” Cox Broadcasting Corp. v.
Cohn, 420 U.S. 469, 480 (1975). This attempt fails.
For one, the asserted federal claims were “finally
decided” by the Washington Supreme Court (as they
were not properly presented), and because the
decision
remanded
for
additional
factual
development. Cf. Florida v. Thomas, 532 U.S. 774,
779 (2001). For the same reasons the Petition is
unripe, there is zero “guarantee” any federal issue
will require decision regardless of the outcome of
future proceedings. The myriad contingencies
14
described confirm any federal issue potentially
implicated by the decision below is not “final.”
II.
THE PETITION SEEKS EXTREME
INTERFERENCE OVER ONGOING
STATE COURT RULEMAKING
ANTITHETICAL TO FEDERALISM
The
Petition
repeatedly
claims
that
Washington’s Berhe rule is “novel” and calls it an
“outlier.” These labels fuel the insinuation that a
simple state-court post-trial rule for an evidentiary
hearing has somehow upended Washington’s courts.
Even if the assertion about being “novel” were
correct, it would be irrelevant. Nor have Washington
courts been upended.
1. Assuming arguendo Washington’s rule for
granting a post-trial evidentiary hearing on a claim
that racial bias impacted a verdict is “novel” or an
“outlier” among the states, that fact does not permit
this Court’s review. In our system, states are
“independent sovereigns with plenary authority to
make and enforce their own laws as long as they do
not infringe on federal constitutional guarantees.”
Danforth v. Minnesota, 552 U.S. 264, 280 (2008).
States
are
permitted
to
“define
crimes,
punishments, rules of evidence, and rules of
criminal and civil procedure in a variety of different
ways.” Id. In the same way state courts are free to
choose to evaluate experts based on Frye v. United
States, 293 F. 1013 (D.C. Cir. 1923), Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
15
(1993), or neither, they are permitted to create rules
about the administration of their own courts.
Danforth, 552 U.S. at 280; see also Erie R. Co. v.
Tompkins, 304 U.S. 64, 78-79 (1938) (describing
state independence over court administration).
2. States are empowered, as laboratories of
democracy and in virtue of their sovereignty, to
devise their own practices, even if they are “novel.”
As part of our system of dual sovereignty, “this
Court has ‘long recognized the role of the States as
laboratories for devising solutions to difficult legal
problems.’” Arizona State Legislature v. Arizona
Independent Redistricting Comm’n, 576 U.S. 787,
817 (2015) (quoting Oregon v. Ice, 555 U.S. 160, 171
(2009)). Deference to the states is at its zenith when
devising “various solutions where the best solution
is far from clear.” San Antonio Independent School
Dist. v. Rodriguez, 411 U.S. 1, 49-50 (1973). This
Court recently made this point emphatically in
permitting states to regulate reproductive health
laws that are “novel” and disputed. Dobbs v. Jackson
Women’s Health, 142 S. Ct. 2228, 2239 (2022).
Purging the administration of justice from the
vestiges of racism is no different. Racial bias
implicates unique historical, constitutional, and
institutional concerns that, “if left unaddressed,
would risk systemic injury to the administration of
justice.” Pena-Rodriguez v. Colorado, 580 U.S. 206,
224 (2017). Racial bias “mars the integrity of the
judicial system and prevents the idea of democratic
16
government from becoming a reality.” Edmonson v.
Leesville Concrete Co., Inc., 500 U.S. 614, 628 (1991).
Permitting bias “in the jury system damages ‘both the
fact and perception’ of the jury’s role as a ‘vital check
against the wrongful exercise of power by the State.”
Powers v. Ohio, 499 U.S. 400, 411 (1991).
This Court has never held—and it would be
anathema to state sovereignty to hold—that states
are not permitted to adopt creative, if novel rules of
in this area. Instead, as Dobbs just held and other
authorities confirm, states are free to develop their
own procedures beyond what this Court has
required as a constitutional minimum. E.g. Miranda
v. Arizona, 384 U.S. 436, 490 (1966) (adopting a rule
but confirming “the States are free to develop their
own safeguards” concerning constitutional rights).
Washington has adopted a race neutral standard
that aims to remove race-based decision making
from the judicial system. Pet. App. 19a. Under this
standard, any party, regardless of their race, may
present a prima facie case that racial bias played a
role in the outcome of their trial. Id. The inquiry is
objective, rather than subjective. Id. Similar to this
Court’s decisions concerning race and in other areas,
the objective inquiry focuses on the “perception and
reality” of the proceedings not merely the subjective
intent of participants. Powers, 499 U.S. at 411; see
also Georgia v. McCollum, 505 U.S. 42, 53 (1992)
(pointing to the impact of perception caused by the
removal of a juror based on race); Liljeberg v. Health
Servs. Acquisition Corp., 486 U.S. 847, 865 (1988)
17
(noting that promoting confidence in the judiciary
requires avoiding the appearance of impropriety).
Washington has a post-trial method for inquiring
about whether a verdict has been impacted by racial
bias that focuses on perception rather than intent. If
Petitioner believes these rules are “overinclusive” or
imperfect as a policy matter, her relief is to
Washington’s democratic processes not this Court.
Pet. 32. These are the sorts of decisions where this
Court “is well advised to refrain from imposing on
the States inflexible constitutional restraints that
could circumscribe or handicap the continued
research and experimentation so vital to finding
even partial solutions to [complicated] problems and
to keeping abreast of ever-changing conditions.”
Rodriguez, 411 U.S. at 43.
3. The “parade of horribles” speculated about by
Petitioner and amici are an unfounded distraction.
Washington courts are entrusted with their own
administration and so in the obviously unlikely event
a simple rule allowing certain post-trial evidentiary
hearings in will upend civil courts, that is a matter
for Washington courts and not this one.
However, the sky is not falling. The Berhe
standard has existed for four years, and General Rule
37, which concerns peremptory challenges and from
which the objective test derived, has existed for five.
State v. Jefferson, 429 P.3d 467, 477 (2018). Trials
have not ground to a halt due to Berhe or the decision
below. Instead, Washington State has remained
18
productive in administering trials. At the height of
the Covid-19 pandemic, a year after Berhe was
decided, King County (the most populous county in
Washington State and where this case originated)
administered at least 29 felony criminal trials
between March and December 2020. King County
Data
Dashboard,
https://tinyurl.com/4ubynytx.
There were at least 116 felony criminal trials in 2021;
at least 124 in 2022; and have been at least 34 in the
first few months of 2023. Id. Particularly because
criminal trials are more frequent than civil trials,
there is no evidence whatsoever that Berhe or the
decision below have had, or will cause, any of the
grievous impacts imagined by Petitioner and amici.
III.
THE NEWLY-ASSERTED FEDERAL
ISSUES ARE MERITLESS
Though this Court should not reach them,
Petitioner’s constitutional claims fail.
1. The Due Process claim here is premature, as
the process complained of is ongoing. Zinermon, 494
U. S. at 126. Procedural due process requires parties
be given notice and the opportunity to be heard.
Mathews v. Eldridge, 424 U.S. 319, 348, (1976). An
entire evidentiary hearing is contemplated to
provide Petitioner the opportunity to present
evidence she believes rebuts the prima facie finding
that racial bias may have impacted the verdict.
Petitioner may very win the hearing (assuming it
happens and is not mooted by the order of a new trial
due to the discovery violations). This “fair
19
opportunity for rebuttal” is beyond sufficient.
Wilkinson v. Austin, 545 U.S. 209, 211 (2005).
Petitioner nonetheless argues “‘[d]ue process
requires that there be an opportunity to present
every available defense.’” Lindsey v. Normet 405
U.S. 56, 66 (1972) (quoting American Surety Co. v.
Baldwin, 287 U.S. 156, 168 (1932)). However, as
here, the due process claim in Lindsey failed because
there were “available procedures to litigate any
claims” in state court. Id. Respondent has not been
deprived of raising any defense at a forthcoming
hearing. In fact, given that Petitioner concedes the
decision below offered “no guidance” on how it will
be administered, Pet. 25, the suggestion Petitioner’s
counsel will be “stifled” from engaging in “zealous
advocacy” in a manner sufficient to implicate due
process despite the existence of an entire hearing
devoted giving Petitioner the opportunity to make
her case rings hollow. Id. 20-21. Contrary to the
implication of the Petition, the Washington Supreme
Court did not sub silentio overrule decades of
precedent or its own pattern jury instructions that
permit challenging credibility. Indeed, the
concurrence below emphasized that Washington did
not forbid cross-examination or evidence-based
arguments Petitioner now asserts are precluded.
Pet. 35a. Due Process is simply not implicated here.
The Petition also argues Heiner v. Donnan, 285
U.S. 312, 329 (1932), holds that “a presumption
which operates to deny a fair opportunity to rebut it
violates the due process clause of the Fourteenth
Amendment”. Pet. 25. While Petitioner does not
20
agree with that characterization, the presumption at
issue in Heiner was irrebuttable and thus afforded
no opportunity to be heard. Heiner, 285 U.S. at 320
n. 1, 325. That is quite unlike the explicitly
rebuttable presumption in this case where an
evidentiary hearing is required to afford Petitioner
an opportunity to present her evidence.
2. Petitioner’s Equal Protection claim likewise
fails. Nothing in the decision below classifies any
person by their race or advantages one person, based
on race, against another.3 The opinion below does
not require, in any measure, counsel to consider race
“at every turn” or view “[e]very aspect” of the trial
through a racial lens. Pet. 29. The decision below
permits, in some instances, a post-trial evidentiary
about whether racial bias impacted a verdict.
In addition, though strict scrutiny should not
apply because this is not a race-based classification,
Petitioner admits that “judicial, legislative, or
administrative findings must be made” in order for
assessment of an equal protection claim. Pet. 32
As a result, nothing in this Court’s prior or anticipated
decisions concerning whether universities can specifically
consider a person’s race in admissions in any way impact the
decision below or provide a basis for delaying denial of the
Petition. In the same vein, the Petition relies heavily on Texas
Department of Housing & Community Affairs v. Inclusive
Communities Project, Inc., 576 U.S. 519 (2015), which was a
Fair Housing Act case, and did not address equal protection.
Likewise, Ricci v. DeStefano, 557 U.S. 557, 582, (2009),
interpreted Title VII, not the Equal Protection Clause.
3
21
(citations omitted). But, again, no explicit equal
protection findings were made here because the
issue was not raised below and the record was “not
compiled with those questions in mind.” Cardinale,
394 U.S. at 438.
That said, the decision below did point to
evidence about racial discrimination in our courts.
Pet. App. 15a, 17a. And there is no reasonable
dispute that racial bias in the administration of
courts and trials is a compelling state interest. See,
e.g., Buck v. Davis, 580 U.S. 100, 124 (2017)
(“Discrimination on the basis of race, odious in all
aspects,
is
especially
pernicious
in
the
administration of justice.”) (citations omitted);
Edmonson, 500 U.S. at 630. That is the exact
purpose of the Fourteenth Amendment—“to
eliminate racial discrimination emanating from
official sources in the States.” McLaughlin v.
Florida, 379 U.S. 184, 192 (1964). The claim fails.
CONCLUSION
The writ of certiorari should be denied.
Respectfully submitted,
David B. Owens
Counsel of Record
P.O. Box 85110
Seattle, WA 98145
May 1, 2023
Vonda Sargent
Carol Farr
119 1st Ave S., Ste 500
Seattle, WA 98104
APPENDIX
TABLE OF CONTENTS
Page
APPENDIX: Brief of Respondent in Supreme
Court of the State of Washington, No. 97672-4
(November 10, 2020)............................................
1a
1a
APPENDIX
IN THE SUPREME COURT
OF THE STATE OF WASHINGTON
[Filed: November 10, 2020]
————
No. 97672-4
————
JANELLE HENDERSON,
Appellant,
v.
ALICIA M. THOMPSON,
Respondent.
————
BRIEF OF RESPONDENT
————
Heather M. Jensen, WSBA #29635
Gregory S. Worden, WSBA# 24262
Laura Hawes Young, WSBA #3934
Attorneys for Respondent
LEWIS BRISBOIS BISGAARD & SMITH LLP
1111 Third Avenue, Suite 2700
Seattle, WA 98101
(206) 436-2020
Heather.Jensen@lewisbrisbois.com
Gregory.Worden@lewisbrisbois.com
Laura.Young@lewisbrisbois.com
2a
TABLE OF CONTENTS
Page
I. INTRODUCTION ................................................. 1
II. COUNTERSTATEMENT OF THE ISSUES
RELATING TO APPELLANT’S ASSIGNMENTS OF ERROR ............................................. 3
III. COUNTERSTATEMENT OF THE CASE .......... 4
A. Substantial Evidence Showed that the
Case Implicated Significant Symptomatic Pre-Accident Conditions, an
Auto Accident, Temporary Aggravation of Symptoms, and a Jury Verdict
Consistent with the Evidence ....................... 4
1. Henderson’s Pre-Accident Medical
Condition ................................................ 4
2. The June 14, 2014 Accident ................... 5
3. Henderson’s Post-Accident Condition and Treatment ................................ 5
4. CR 35 Examination and Defense
Expert Opinions ..................................... 7
5. Henderson Declined to Answer
Questions and Complained of
Being “Put on Trial” ............................... 9
6. Henderson’s Long-Time Chiropractor Testified to a History of
Friendship and to Employing
Henderson ............................................ 11
7. Henderson’s Friends and Family
Offered Identical Testimony on
Her Pre-Accident Demeanor and
Tourette’s Symptoms ........................... 11
8. Henderson Called Thompson in
Rebuttal at the End of Trial ................ 12
3a
9. Despite Offering No Evidence of
Medical Bills or Wage Loss,
Henderson Asked the Jury for
$3,514,125.00........................................ 13
10. The Jury Awarded $9,200 in
Damages ............................................... 15
B. The Trial Court Exercised Its Discretion to Consider and Deny a
Spoliation Instruction. ................................ 16
C. Thompson’s Closing Tracked the Evidence and Was Without Racial Bias........... 19
D. The Jury Never Demanded Henderson
Be Removed from the Courtroom. .............. 23
E. The Trial Court Exercised Its Discretion in Denying the New Trial Motion
and Berhe Evidentiary Hearing. ............... 23
1. Motion for a New Trial......................... 23
2. Motion for Evidentiary Hearing .......... 26
IV. SUMMARY OF THE ARGUMENT ................... 26
V. ARGUMENT IN SUPPORT OF AFFIRMANCE ............................................................... 28
A. The Trial Court Did Not Abuse Its
Discretion in Declining to Grant a New
Trial Because the Jury’s Verdict Was
Supported by Substantial Evidence
and There Was No Evidence that
Counsel or the Jury Engaged in
Misconduct. .................................................. 28
1. The Correct Standard of Review is
Abuse of Discretion, Not Constitutional Harmless Error .......................... 28
a. CR 59(a)(2) New Trial Standards ................................................ 29
2.
3.
4a
Henderson Misapplies GR 37 as
GR 37 Does Not Apply to Alleged
Attorney Misconduct During Closing Argument in a Civil Trial and
Henderson Failed to Show Any
Violation Thereof.................................. 30
Defense Counsel’s Closing Was
Rooted in the Evidence, Not Racial
Bias ....................................................... 32
a. Thompson’s Attack on Henderson’s $3,500,000 Request
Was Consistent with the Evidence, Jury Instructions on
Credibility, and Henderson’s
Counsel’s Argument; It Was
Racially Neutral Effective
Advocacy ........................................ 32
b. Thompson’s Description of
Henderson as Combative and
Confrontational Was Consistent with the Evidence,
Jury Instruction One, and
Race Neutral ................................. 34
c. Characterizing Thompson as
Intimidated by the Legal
Process Was Consistent with
the Testimony, Jury Instruction on Credibility, and Race
Neutral .......................................... 36
d. Pointing Out Henderson Failed
to Provide Information Was
Consistent with the Testimony, Jury Instruction on
Credibility, and Race Neutral ...... 37
4.
5.
5a
e. Pointing
Out
Three
of
Henderson’s Lay Witnesses
Used Almost Identical Language on Her Pre-Accident
Personality and Tourette’s
Symptoms Was Consistent
with the Testimony, Jury
Instruction on Credibility,
and Race Neutral .......................... 39
f. A Passing Informal Reference
to Schontel Delaney Was Not
Misconduct or Evidence of
Racial Bias .................................... 41
g. Pointing Out the Friendly Relationship between Henderson
and Dr. Devine Was Supported
by Testimony, Consistent
with the Jury Instruction on
Witness Credibility, and Race
Neutral .......................................... 42
h. Pointing Out Henderson Had
Significant Pre-Existing Conditions and Disability Was
Consistent with the Testimony, Jury Instructions, and
Race Neutral ................................. 43
Substantial Evidence Supported
the Jury’s Verdict and Henderson
Failed to Meet Her Burden to
Show Entitlement to a New Trial
under CR 59(a)(1), (5), or (9) ................ 44
The Trial Court’s Decision to Deny
a New Trial Considered the Entire
Record and Totality of the Circumstances .................................................. 48
6a
6. The Order Denying New Trial Is
Not Racially Biased .............................. 51
B. The Trial Court Did Not Abuse Its
Discretion in Not Holding a Berhe
Evidentiary Hearing and Not Holding
a Hearing Does Not Provide a Basis for
a New Trial. ................................................. 54
C. The Trial Court Did Not Abuse Its
Discretion in Declining to Give a
Spoliation Instruction, There Was No
Evidence the Ruling Reflected Bias,
and the Decision to Decline a
Spoliation Instruction Provided No
Basis to Order a New Trial. ........................ 57
D. The Trial Court’s Practice of Removing
the Parties Post-Verdict Was Not
Evidence of Bias, Did Not Impact the
Verdict, and Provided No Basis to
Order a New Trial. ...................................... 59
VI. CONCLUSION ................................................... 60
7a
TABLE OF AUTHORITIES
CASES
Page
Alcoa v. Aetna Casualty & Surety,
140 Wn.2d 517, 998 P.2d 856 (2000) ........ 28, 30
Allied Daily Newspapers of Wash. v.
Eikenberry,
121 Wn.2d 205, 848 P.2d 1258 (1993) ............ 59
Andren v. Dake,
14 Wn. App. 2d 296 (2020) ............................. 30
Davis v. Cox,
183 Wn.2d 269, 351 P.3d 862 (2015) ................ 1
Dybdahl v. Genesco, Inc.,
42 Wn. App. 486, 713 P.2d 113 (1986) ........... 32
Faust v. Albertson,
167 Wn.2d 531, 222 P.2d 1208 (2009) ............ 44
Hamilton v. Alabama,
376 U.S. 650 (1964) ......................................... 41
Hopkins v. Copalis Lumber Co.,
97 Wn. 119, 165 P. 1062 (1917) ...................... 51
James v. Robeck,
79 Wn.2d 864, 490 P.2d 878 (1971) ................ 46
John Doe v. Puget Sound Blood Ctr.,
117 Wn.2d 772, 819 P.2d 370 (1991) .............. 43
M.R.B. v. Puyallup Sch. District,
169 Wn. App. 837, 282 P.3d 1124 (2012) ....... 44
McUne v. Fuqua,
45 Wn.2d 650, 277 P.2d 324 (1954) ................ 45
Millies v. LandAmerican Transnation,
185 Wn.2d 302, 372 P.3d 111 (2016) .............. 44
Nichols v. Lackie,
58 Wn. App. 904, 795 P.2d 722 (1990),
review denied, 116 Wn.2d 1024 (1991) ........... 31
8a
Palmer v. Jensen,
132 Wn.2d 193, 937 P.2d 597 (1997) .............. 45
Pier 67 v. King County,
89 Wn.2d 379, 573 P.2d 2 (1977) .................... 57
Pogrebnoy v. Russian Newspaper District,
289 F. Supp. 3d 1061 (C.D. Cal 2017) ............ 36
REP MCR Realty v. Lynch,
363 F. Supp. 2d 984 (N.D. Ill. 2005)............... 36
Salinas v. Starjem Restaurant Corp.,
123 F. Supp. 3d 442 (S.D.N.Y. 2015).............. 36
Spencer v. Badgley Mullins Turner, PLLC,
6 Wn. App. 2d 762, 432 P.3d 821 (2018),
review denied, 193 Wn.2d 1006 (2019) ..... 29, 30
State v. Berhe,
193 Wn.2d 647, 44 P.3d 1172 (2019) .......passim
State v. Jackson,
75 Wn. App. 537, 879 P.2d 307 (1994),
review denied, 126 Wn.2d 1003, 891 P.2d
37 (1995) .................................................... 54, 55
State v. Merrill,
183 Wn. App. 749, 335 P.3d 444 (2014) ......... 29
State v. Monday,
171 Wn.2d 667, 257 P.3d 551 (2011) .......passim
Teter v. Deck,
174 Wn.2d 207, 274 P.3d 336 (2012) ........ 28, 29
United States v. Lisyansky,
2014 U.S. Dist. LEXIS 36186 (S.D.N.Y.
Mar. 13, 2014) ................................................. 36
Warren v. Hart,
71 Wn.2d 512, 429 P.2d 873 (1967) ................ 51
Wooldridge v. Woolett,
96 Wn.2d 659, 638 P.2d 566 (1981) ................ 45
9a
STATUTORY AUTHORITIES
RCW 4.76.030. .................................................... 23
RULES AND REGULATIONS
CR 37(b)(2)(B) ..................................................... 57
CR 59(a) .............................................................. 44
CR 59(a)(1) .................................................... 23, 44
CR 59(a)(2) .............................................. 23, 29, 30
CR 59(a)(5) .............................................. 23, 45, 46
CR 59(a)(9) .................................................... 23, 44
CR 8(d) ................................................................ 47
GR 37 ................................................................. 30
GR 37(g) .............................................................. 31
GR 37(h) .............................................................. 31
GR 37(h)(ii) ......................................................... 31
RAP 14.2 ............................................................. 60
CONSTITUTIONAL PROVISIONS
Wash. Const. Art. I, § 21 ............................... 1, 28
ADDITIONAL AUTHORITIES
6 WASHINGTON PRACTICE, Washington
Pattern Jury Instructions Civil (7th ed.
2019) ................................................................ 35
Andrea Mathews, LPC, NCC, “I Didn’t
Mean It” or “It Didn’t Mean Anything,”
Disclaimers of wholeness, PSYCHOLOGY
TODAY, Feb. 1, 2015, https://www.psychol
ogytoday.com/us/blog/traversing-the-inn
er-terrain/201502/i-didnt-mean-it-or-itdidnt-mean-anything. ..................................... 42
Trina Jones & Kimberly Jane Norwood,
Aggressive Encounters & White Fragility:
Deconstructing the Trip of the Angry
Black Woman, 102 IOWA L. REV. 2017,
2048 (2017) ...................................................... 36
10a
I. INTRODUCTION
Janelle Henderson (“Henderson”) is not entitled to a
new trial. The “right of trial by jury shall remain
inviolate.” Wash. Const. Art. I, § 21. As discussed in
Davis v. Cox, “‘inviolate connotes deserving of the
highest protection’ and ‘indicates that the right must
remain the essential component of our legal system
that it has always been.’” 183 Wn.2d 269, 288, 351
P.3d 862 (2015) (quotation omitted). “At its core, the
right of trial by jury guarantees litigants the right to
have a jury resolve questions of disputed material
facts.” Id. at 289.
Henderson was injured in an uncontested liability
automobile collision with Alicia Thompson (“Thompson”)
on June 14, 2014. Henderson filed suit against Thompson
for personal injuries suffered in the collision and made
the tactical decision to seek only general damages
at trial. The crux of Henderson’s damages claim was
that the collision and resulting stress caused her preexisting Tourette’s Syndrome to worsen, increasing
the nature and frequency of her tics and increasing her
chronic neck pain. Thompson presented two medical
experts, who rejected Henderson’s injury claim and
concluded that at most, she had minimal to mild
exacerbation of preexisting musculoskeletal complaints.
Following seven days of trial, twelve witnesses, and
five hours of deliberation, the jury awarded Henderson
$9,200 in general damages.
Henderson appeals, arguing the trial court abused
its discretion in denying her motions for a new trial
and a Berhe evidentiary hearing. Henderson asserts
that arguments made by Thompson’s counsel in closing argument triggered the jury’s implicit racial bias
against Henderson, who is Black, and the jury
returned a verdict based solely on that implicit bias.
11a
No juror came forward to make any claim of explicit or
implicit bias during the trial or deliberations. The
jury’s verdict was supported by the evidence and
reflected the defense theory of the case that Henderson
had a mild exacerbation of pre-existing musculoskeletal issues for which she received limited chiropractic
care and physical therapy before a lengthy gap in care,
during which time she started a physically demanding
job. The trial court reviewed the parties’ briefing on
both motions, held oral argument on the motion for
new trial, and issued detailed orders denying both
motions.
Contrary to Henderson’s assertions, the jury’s
verdict cannot be said to reflect implicit racial bias
against her. It reflects the jury’s belief that Henderson
had a panoply of well-documented, pre-existing health
issues and the accident mildly and temporarily exacerbated those issues but made no permanent impact.
Henderson relies on blatant misstatements of the record
and unsupported, self-serving assertions to make her
arguments for implicit bias. Henderson was not the
victim of a biased jury verdict or implied racial
animus. She sought over three million dollars from the
jury who did not believe her claim for injuries. The
jury’s verdict was based on competent medical
testimony and the medical records.
Finally, the trial court did not abuse its discretion in
concluding a Berhe hearing was inappropriate as
Henderson did not make a prima facie showing the
jury’s verdict was the result of implicit bias. The
evidence in the record was insufficient to warrant any
further inquiry or pierce the veil of jury deliberations.
This Court should affirm the trial court in all respects.
12a
II. COUNTERSTATEMENT OF THE ISSUES
RELATING TO APPELLANT’S ASSIGNMENTS
OF ERROR
Henderson did not set forth a statement of the issues
separate from her assignments of error. Thompson
sets forth her statement of issues below and believes
the issues are more appropriately formulated as
follows:
1. Did the trial court properly exercise its
discretion in denying Henderson’s motion for
a new trial when there was no evidence of
jury misconduct or counsel misconduct during
closing arguments and the jury verdict
reflects an award consistent with the
defense’s theory of the case?
2. Did the trial court properly exercise its
discretion in not holding a Berhe evidentiary
hearing when Henderson failed to make a
prima facie showing of implicit racial bias in
the jury’s verdict?
3. Did the trial court properly exercise its
discretion in reconsidering the spoliation
instruction after the conclusion of the
evidence and testimony?
4. Did the trial court properly exercise its
discretion to run its courtroom by asking all
parties to leave the courtroom following the
conclusion of the trial and the jury’s verdict?
III. COUNTERSTATEMENT OF THE CASE
A. Substantial Evidence Showed that the Case
Implicated Significant Symptomatic PreAccident Conditions, an Auto Accident,
13a
Temporary Aggravation of Symptoms, and a
Jury Verdict Consistent with the Evidence.
1. Henderson’s Pre-Accident Medical Condition
As a child, Henderson was diagnosed with Tourette’s
Syndrome. RP 490. Henderson’s medical records evidenced worsening Tourette’s symptoms since age 25.
RP 568. In 2012, her neurologist described her
Tourette’s as severe to very severe. RP 244; RP 448.
Henderson’s medical records documented Tourette’s
symptoms including tics and vocalizations, motor
movements of her neck, arms and legs, and pain
associated with those movements. RP 982-83. As early
as 2009, she received Botox injections into her larynx
and facial muscles due to her tics, and her neurologist
recommended she consider additional Botox for
large muscles. RP 243, 458, 983-84. Her health was
described as “poor” and she failed to progress with
chiropractic care for chronic cervical, thoracic, and
lumbar complaints. RP 248-49. In the months preceding the accident, Henderson saw her chiropractor, Dr.
Devine, regularly, including eleven times in the month
prior to the collision and forty-seven visits in the five
months preceding the accident for neck and back
complaints. RP 569, 994. Prior to the collision, she had
physical therapy for severe neck pain, upper extremity
numbness, and tingling and was sent for an MRI that
showed significant degenerative changes in her spine.
RP 569; 990-91. She had been referred for facet joint
injections in April 2014 but did not pursue them. RP
782-83. Henderson had also gained 50 pounds as of
May 2014; she could not go shopping due to her weight
and could not exercise. RP 852. In large part, her preaccident and post-accident medical records document
that her condition remained relatively unchanged as a
result of the accident. See RP 238-41.
14a
2. The June 14, 2014 Accident
On June 14, 2014, Henderson was driving her 2004
Mercedes-Benz C240 east on the West Seattle Bridge.
CP 193-195, RP 355. Thompson was following her.
Thompson glanced away for a brief moment, then
looked ahead to discover that traffic had stopped. RP
388. She hit her brakes but was not able to avoid the
collision. RP 387. Henderson called the police, but
police did not respond. RP 364. Each party drove their
own vehicle from the scene. RP 347. Thompson
admitted liability for the accident. RP 355.
3. Henderson’s’ Post-Accident Condition and
Treatment
Henderson claimed the accident worsened her
Tourette’s symptoms, including more frequent and
intense leg kicks, foot drag, neck tics, head jerks/tics,
and a bunion. RP 495, 496, 502-03, 544-45. She
claimed an increase in her chronic neck pain and some
headaches. RP 782.
Following the accident, she received chiropractic
care, massage therapy, Botox injections in her neck,
and three physical therapy visits. RP 540-42, 780.
Henderson continued chiropractic care with Dr. Devine,
her pre-accident chiropractor. RP 224. In October
2014, Henderson switched chiropractic providers to
DeSautel Chiropractic and received chiropractic and
massage therapy treatments there from October 16,
2014 through February 2, 2015. RP 541, 571. Six
months later, on August 7, 2015, Henderson returned
to Devine Chiropractic to resume her regular chiropractic care. RP 237. From February 2 to August 7,
there were no treatment records for massage therapy,
physical therapy, or visits to her neurologist. RP 57172. At the time she resumed care in August, her
15a
chiropractic records reflected the same level and
nature of complaints as existed pre-accident. RP 23841, 573, 996-97. Her medical records were devoid of
references to foot drags, observed increased or new
tics, or bunions. RP 575, 861-62.
Henderson also met with her long-standing neurologist, Dr. Vlcek, three days after the accident but did
not discuss the accident with him at all. RP 477-78.
Dr. Vlcek also testified that Henderson had an element of disability both indirectly and directly from her
Tourette’s that preceded the accident. RP 474. Dr.
Vlcek’s records following the accident did not document exacerbated Tourette’s symptoms. RP 978. Her
last appointment with Dr. Vlcek was in December
2014. RP 410.
Henderson started a front-end assistant position at
Costco in March 2015. RP 884. Her job responsibilities
included moving shopping carts around, loading carts
with groceries, moving warehouse boxes, and interacting with customers. RP 887-88. The jury saw a 17minute video of Henderson working at Costco during
the 2015 gap in care showing her bagging items,
jogging to and from the checkout stand, and moving
large items on carts without any visible tics or
difficulty. RP 881; CP 132 (Ex. 101). After three
months at Costco, she moved onto a cashier position at
Walgreens, where she spent the day standing. RP 890.
4. CR 35 Examination and Defense Expert
Opinions
As part of the litigation, Thompson retained two
medical experts who reviewed records and examined
Henderson: Dr. Mark Sutton, a chiropractor, and Dr.
Harold Rappaport, a neurologist and psychologist. RP
564, 930. Henderson was accompanied to the CR 35
16a
examination. RP 576. It was recorded and excerpts
were played for the jury. See e.g., RP 596-647; CP 133
(Ex. 119). The CR 35 examination started with the
doctors posing questions regarding Henderson’s medical
history, accident, and current complaints. RP 576-77.
Henderson declined to provide information during the
history as to the accident or her medical history. RP
579, 597-601, 607, 617, 623-24, 1001, 1020-23. Instead,
Henderson told them to rely on her medical records for
her medical history and areas of her body that
bothered her following the accident. RP 580, 1021-22.
During the physical examination, Henderson was
defensive. She asked questions such as, “Why are you
doing all of this?” and accused the doctors of purposely
hurting her. RP 646:5, 15-16, 25; 647:1. Henderson
explained that she did not trust them and did not feel
safe. RP 922:8-13. Following the physical examination, Drs. Rappaport and Sutton concluded there were
no objective findings supportive of her pain complaints. RP 583, 1007. Dr. Rappaport noted her
physical exam demonstrated “unusual behaviors.” RP
1003:25-1004:15.
Based on his review of the medical records and
examination of Henderson, Dr. Sutton concluded
Henderson had longstanding musculoskeletal complaints
in her neck, back and upper extremity and the had
treated actively on a regular basis with chiropractic
care. RP 566:11-14. The accident minimally to mildly
exacerbated those conditions and did not cause any
new conditions. Id. at 17-18 A short term of chiropractic and physical therapy would have been reasonable.
RP 567:6-21.
Dr. Rappaport noted she had a minor cervical,
dorsal, and lumbar strain following the accident that
did not result in any ongoing issues. RP 971: 13-24. Dr.
17a
Rappaport did conclude that there were psychological
features to her complaints. Id. at 24. He also concluded
that her Tourette’s syndrome was unaffected by the
accident. Her medical records evidenced a long history
with Tourette’s that at times caused significant pain
problems, difficulties getting jobs, being in social
situations, inability to tolerate any medication management, and failing treatments with repeated
recommendations of more aggressive treatment with
Botox and-and deep brain stimulation prior to the
accident. RP 976:3-977:4. Henderson’s medical records
documented that her complaints were the same preaccident and post-accident, waxing and waning. RP
997:6-8. Dr. Rappaport concluded it was possible she
sustained a temporary exacerbation of her chronic
neck and back complaints and a short course of twelve
chiropractic and physical therapy visits would have
been appropriate. RP 1009:10-12.
5. Henderson Declined to Answer Questions
and Complained of Being “Put on Trial”
The case was scheduled to go to trial on April 15,
2019 but went forward on May 29, 2019. CP 101. The
jury heard testimony regarding Henderson’s preaccident medical condition, her post-accident condition,
and her employment. They heard from two defense
medical experts, the parties, four of Henderson’s
friends and family, one private investigator, and three
of her treating doctors.
Henderson could only testify in a “global sense” as
to her medical history on direct examination. RP
493:12-14. But on cross-examination, just as during
the CR 35 examination, Henderson declined to answer
questions about her prior medical records, even when
prompted to review the records to refresh her
18a
recollection on specific visits. RP 896-903. She did not
recall ever getting x-rays or an MRI. RP 901:16-902:8.
Toward the beginning of cross-examination when
asked questions regarding the accident,1 Henderson
was combative and evasive:
Q. Upon impact you were not pushed into
any car in front of you, correct?
A. No. But I feel like I’m on trial and I didn’t
do anything. I- I was driving and I got hit. So,
I feel like you’re, like, you’re putting me on
trial for somebody else’s — for somebody else
hitting me.
* * *
Q. And she was allowed to ask her questions
even though my client has admitted that she
caused the accident and that she’s responsible
for your injuries to the extent they were
caused by the accident did you hear that?
A. Uhm, well, you’re still putting me on trial,
so.
Q. Well, as A. I mean, you’re- I feel like that, I guess I
should say.
Q. Sure. But in our civil litigation system, my
client doesn’t simply have to roll over and
accept everything that you want to say about
what was caused by the accident; do you
[inaudible]
1
Henderson’s testimony on direct examination that Thompson
was traveling 40-45 mph. RP 537.
19a
A. That I was injured and my Tourette’s were
exacerbated? That that’s not — I don’t Q. Correct.
A. — I have to sit there and be — I have to
have my tics be exacerbated by somebody
else’s, uhm-uhm, uh, something that they
did? I — so, she doesn’t have to roll over, but
I do; is that what I’m understanding?
RP 892:8-893:14.
6. Henderson’s Long-Time Chiropractor Testified to a History of Friendship and to
Employing Henderson
Dr. Devine, Henderson’s longtime chiropractor,
testified as to his treatment and observations of
Henderson and his history with Henderson, including
volunteering the following:
Q. I want to make clear, you-you can-howhow do you consider your relationship with
Janelle?
A. Friendly, yeah. I mean, doctor/patient, but
also friendly. You know, I’ve known her a long
time, and she’s great. I mean, I-I remember
one time- you know, I’ve known her since she
was going to college. And she had some
financial difficulties. And, you know, she –
that’s sometimes making-tough time making
ends meet. And so, a couple times we just
hired her for, like, you know, contract labor,
doing stuff from, like – I mean, she’s mopped
floors. She’s done, you know, filing, whatever
it’s – I mean, and it’s just like, you know, stuff
that she could help around the office with.
RP 203:6-17.
20a
7. Henderson’s Friends and Family Offered
Identical Testimony on Her Pre-Accident
Demeanor and Tourette’s Symptoms
Henderson called four lay witnesses to testify on
her behalf. Schontel Delaney, PharmD testified via
deposition. Dr. Delaney is Henderson’s cousin. RP 344.
Dr. Delaney described Henderson as follows:
A. Before the collision, Janelle was very exuberant, very high energy, life of the party. You
know, walked through the door and wanted to
meet everyone, talk to everyone. Like to go
out, liked to dance. She just was the life of the
party.
RP 344:14-17.
Jolyn Gardner Campbell, a friend of Henderson’s for
twenty years, also described Henderson as the “life of
the party”:
A. Janelle used to be the life of the party. She
used to be the fun one.
RP 482:9-10.
Finally, Kanika Green, a friend of Henderson’s for
seventeen years, also described Henderson as the “life
of the party”:
A. We loved to go dancing together. Uh,
Janelle’s a dancer. And, uhm, Janelle, I would
describe her as the life of the party. She
always wanted to go out and have fun.
RP 516:6-8.
As to Henderson’s pre-accident Tourette’s symptoms,
Ms. Gardner Campbell described the symptoms as
“cold-like symptoms, so, a lot of coughing or clearing of
the throat” and occasional foot kicks. RP 481:14-18.
21a
Dr. Delaney described Henderson’s pre-accident tics
as intermittent “throat-clearing and slight shrug of
the shoulders.” RP 346:24-347:1. Ms. Green also noted
Henderson’s Tourette’s pre-accident symptoms were
“like a sneeze, cough-type sound.” RP 517:19-20.
8. Henderson Called Thompson in Rebuttal at
the End of Trial
After the defense rested, Henderson called Thompson
in rebuttal. Prior to Thompson getting on the stand,
the trial court inquired as follows:
THE COURT: Can you tell us just generally
what the subject [for rebuttal] is?
MS. SARGENT: It’s strictly in rebuttal, Your
Honor. It’s just two questions, and it’s strictly
in rebuttal. I didn’t realize I’d have to give
a – a preview of rebuttal questioning.
THE COURT: I just want to be sure that it is
for rebuttal. I’m not going to ask you to give
me a full thing, but it is a little unusual.
***
MS. SARGENT: -it’s – it- I-I don’t want to give
the Defendant an opportunity to go outside
and try to figure out some answer to some
question about that.
THE COURT: We’re going to call the jury in
right afterwards. I-I understand what you’re
saying with that –
MS. SARGENT: It’s in THE COURT: -butMS. SARGENT: -relation to what Dr.
Rappaport said about what he observed on
22a
Janelle – or what he didn’t observe on – as far
as damage.
THE COURT: On the car?
MS. SARGENT: Yeah, that’s it.
RP 1112:10-17; 1113:3-14.
Following a short discussion on bringing in the jury
and timing, Henderson’s counsel then went on to ask
three questions about the damage to Henderson’s
vehicle which she described as “Minor damage. I
mean, I scratched her bumper I believe.” RP 1116:7.
9. Despite Offering No Evidence of Medical
Bills or Wage Loss, Henderson Asked the
Jury for $3,514,125.00
In her closing argument, Henderson’s counsel
emphasized it was within the jury’s province to
ascertain witness credibility:
The first thing that I want to talk to you about
is the credibility of the witnesses. And that’s
something that you are the only ones who
determine who’s credible and who isn’t
credible.
RP 1169:24-1170:2.
Henderson went on to emphasize the credibility of
her witnesses as the people who knew Henderson the
longest and best and her long-time treating doctors.
RP 1171-72. In contrast, she argued the defense’s
highly paid witnesses lacked credibility and the
defense was spending $50,000 “to convince you that
Janelle wasn’t injured.” RP 1174-75, 1177-93.
They’re relentless. They’re relentless in their
efforts to try to say that Janelle wasn’t
injured. You wonder why. Why is that? Why
23a
are they so relentless? Because this type of
case is not a small case.
RP 1183:11-14.
Henderson then asked the jury to award her
$3,513,125.00, reflecting $250 a day for her pain and
suffering for the next 38.67 years. RP 1189:14-1190:8.
In starting her rebuttal closing, Henderson’s counsel
attempted to violate a motion in limine:
MS. SARGENT: . . . The reason why we’re
here is because the Defendant hit my client at
40 miles per hour and then told her to sue me;
offered her nothing to resolve this case.
MS. JENSEN: Objection, motions in limine.
MS. SARGENT: Your Honor, they opened the
door. They said the reasonTHE COURT: Sustained.
MS. SARGENT: – why we’re here is because
we were the –
THE COURT: Counsel, please don’t argue
with me in front of –
MS. SARGENT: I apologize –
THE COURT: – the jury.
MS. SARGENT: – Your Honor.
THE COURT: Thank you.
MS. SARGENT: I apologize.
THE COURT: That’s ok. Please just continue.
RP 1230:16-1231:7.
In rebuttal, Henderson again argued the jury was
tasked with deciding who was telling the truth. RP
24a
1236:10-12. Henderson asked the jury to award past
general damages for her pain and suffering in an
amount the jury was to determine. RP 1238:2-4.
10. The Jury Awarded $9,200 in Damages
The trial court’s instructions to the jury included
Jury Instruction No. 1:
You are the sole judges of credibility of each
witness and of the value or weight to be given
to the testimony of each witness. In assessing
credibility, you must avoid bias, conscious or
unconscious, including bias based on religion,
ethnicity, race, sexual orientation, gender or
disability.
In considering a witness’s testimony, you may
consider these things: the opportunity of the
witness to observe or know the things they
testified about; the ability of the witness to
observe accurately; the quality of a witness’s
memory while testifying; the manner of the
witness while testifying; any personal
interest that the witness might have in the
outcome or the issues; any bias or prejudice
the witness may have shown; the
reasonableness of the witness’s statements in
the context of all the other evidence; and any
other factors that affect your evaluation or
belief of a witness or your evaluation of his or
her testimony.
* * *
CP 366-67.
The jury received the case in the morning on June 7,
2019. RP 1242-1243. By 2:14 p.m., it had reached a
25a
verdict in favor of Henderson and awarding $9,200. RP
1243:10-12; CP 130.
B. The Trial Court Exercised Its Discretion to
Consider and Deny a Spoliation Instruction.
Prior to trial, Henderson’s motions in limine included
a request to exclude defense witness Tyler Slaeker
from testifying or “[i]n the alternative, plaintiff should
be granted a spoliation instruction.”2 CP 15-20.
Thompson opposed both the motion to exclude Mr.
Slaeker’s testimony and an instruction on spoliation.
CP 399-405. During a pre-trial motion hearing,
Henderson withdrew her request to exclude Mr.
Slaeker’s testimony and relied only on her request for
a spoliation instruction. RP 21. The trial court orally
granted the motion:
THE COURT: I am going to grant Plaintiff’s
request for a spoliation instruction. I am
going to allow Plaintiff to cross-examine
Mr. Slaeker regarding his possession of the
notes at one point and then not having the
notes shortly thereafter. I am going to allow
the Plaintiff to cross-examine Mr. Slaeker
regarding the fact that there was extensive
surveillance, but only 17 minutes of video
turned over. If Mr. Slaeker’s going to sat
that’s all the video that there is entirely, then2
In short, Mr. Slaeker is a private investigator who surveilled
Henderson. RP 29:3-4. During discovery, Slaeker was deposed
and his documents were subpoenaed. RP 294. He did not produce
any documents in response to the subpoena but alluded to “notes”
during his deposition. RP 294:18-19; CP 93. Ultimately, it was
determined the notes were only text messages sent to his employer
Probe Northwest, who used the texts to draft the “Probe Report.”
RP 287:22-288:9. No subpoena was ever sent to Probe Northwest
for its file or deposition of Probe Northwest noted. CP 95.
26a
then that’s his testimony. But I think
Plaintiff is entitled to challenge his credibility
on that.
RP 55:20-56:5.
Thompson moved for reconsideration of this order
(filing it the next day on April 16), arguing that a
spoliation instruction was not warranted under
prevailing case law and the facts of the case, which
included the relative insignificance of the purported
missing evidence, an absence of culpability or bad
faith, and absence of proof of destruction of evidence.
CP 92-99. Alternatively, Thompson requested that the
trial court reserve ruling on the spoliation instruction
until after the close of evidence. Id. On May 28, 2019,
following the parties’ briefing, the trial court heard
arguments on the motion for reconsideration and the
production of the Probe Report, which was provided to
Henderson on May 14th. RP 157. The trial court would
not permit Henderson to engage in a line of misleading
questions regarding the production of the report (i.e.,
that it was never produced) but would permit her to
inquire regarding Mr. Slaeker’s inconsistent testimony regarding any notes he took, the length of
surveillance, and the delay in producing the report:
precisely what the trial court indicated Henderson
could cross-examine him about at the April 15th
hearing. Compare RP 55, 176-78. The trial court also
ruled the report itself was not being admitted into
evidence nor could Mr. Slaeker rely on it. RP 175:2021; 178:3-4. The trial court then reserved ruling on
Thompson’s motion until after the testimony of Mr.
Slaeker. CP 102-03.
Prior to his testimony, Mr. Slaeker spoke to the
trial court and explained that the notes he generated
were sent via text to his boss, who then generated the
27a
report and he no longer had that phone. RP 284-88.
Henderson called Mr. Slaeker as part of her case in
chief and examined him about his note taking (RP 30506, 317-18), his failure to turn over an email from prior
defense counsel at his deposition (RP 301-02), and the
time of surveillance versus the time of the produced
videotape (RP 317-28, 336).3 Mr. Slaeker explained
that he was at Costco for an hour but Henderson was
only out in public to be videotaped for seventeen
minutes, hence the seventeen minutes of video. RP
340:13-21; see also RP 319:15-16 (“I videotaped her for
17 minutes over the course of one hour. I think that
might be where the confusion is.”).
At the close of evidence and following oral argument,
the trial court denied a spoliation instruction. RP
1143-47. There had been no evidence presented as to
other video recording of Henderson. RP 1145:3-4.
The trial court noted there was “conflicting evidence
at best” about whether there were notes separate
from the texts Mr. Slaeker no longer maintained. RP
1145:21-23. The trial court permitted a permissible
inference based on 78 billed hours of surveillance of
Henderson but only 17 minutes of video. RP 1146:513. While the trial court called the situation “deeply
suspicious,” there was not sufficient evidence to conclude any video or notes were intentionally destroyed.
RP 1147:1-11. Henderson spent a considerable amount
of time during closing argument discussing the testimony of Mr. Slaeker and the “missing” video. RP 1172,
1177-78, 1234-36.
3
Henderson conflates surveillance and videotaping. Simply
because one is being surveilled does not mean one is getting
videotaped.
28a
C. Thompson’s Closing Tracked the Evidence and
Was Without Racial Bias.
During closing, Thompson also referred to witness
credibility:
Now, you’ll recall that during my crossexamination of Ms. Henderson a couple of
days ago, she was confrontational with me,
asking to know why I was putting her on trial.
Her point was, I was hit; I was rear-ended; I
have injuries. And she wants the inquiry to
end there . . . why are we going through this
exercise? And it seems pretty evident that the
reason we’re going through this exercise is
because the ask is for three and a half million
dollars.
RP 1195:6-17.
* * *
In terms of bias, I thought it was interesting
that Dr. Devine kind of threw out there the
tidbit that suggests that nothing untoward, of
course, but he has more than just a
patient/physician relationship with- with Ms.
Henderson. You’ll recall that he talked about
how he actually hired her. He-he allows her
to come in and work or -when she was in
college, I think, and she was strapped for
cash, he gave- he gave her a job.
RP 1206:18-25.
This paragraph was a small part of many minutes
dedicated to questioning the credibility of Dr. Devine,
whose testimony was largely inconsistent with the
medical records. RP 1204-09.
29a
In furtherance of the arguments on credibility,
Thompson directed attention to Henderson’s lay
witnesses and their bias or prejudice:
So, of course, you know we heard from Ms.
Hinds. We heard from Kanika Green, Jolyn
Gardner-Carter [sic] I believe her name is
Campbell, excuse me, and Schontel Delaney
by videotape. And they were all pretty consistent in their description of Ms. Henderson’s
Tourette’s before the accident. You’ll recall
sniffs, maybe a cough like she had a cold or
allergies, but otherwise, they- that was kind
of the sum of their description. There were
a couple other additions. I think Schontel
talked about an occasional excuse me, Ms.
Delaney talked about an occasional shoulder
shrug. Ms. Gardner talked about an occasional leg tic. But, Ms. Green, the witness
with-with-who went to Trevor Noah and out
to dinner and various events with Ms.
Henderson, said very specifically there will —
there were no truncal tics, no leg tics, no
kicks. The friends and family who are trying
to-in this courtroom are trying to support
someone that they love and treasure, what
they had to say is not supported by the
medical records, by the doctors who are
[inaudible]-whose job it is to provide accurate
information.
RP 1211:13-1212:6.
Henderson’s medical records were wholly inconsistent with her friends’ testimony on her pre-accident
Tourette’s symptoms, which her own doctors described
as “severe.” RP 244, 448. Similarly, Henderson’s three
friends described her in precisely the same language
30a
and painted the same pre-accident picture of her,
which was also inconsistent with the medical records:
I thought it was interesting also that all four
of those witnesses used the exact same phrase
when describing Ms. Henderson before the
accident: life of the party. Almost-almost like
someone had told them to say that. It was —
It was like a tape on repeat. She was
described as a model with a slender body to
die for who gained significant weight after the
accident. Obviously, Ms. Henderson was
interested in fashion. They said she loved to
shop and dress in colorful outfits, but could no
longer shop for those outfits after the accident. But, again, information that’s directly
controverted by even Ms. Henderson’s own
medical — medical providers.
* * *
RP 1213:10-21.
Thompson went on to play deposition testimony
from Henderson’s primary care doctor, who confirmed
that in 2012, Henderson had gained fifty pounds, was
unable to exercise due to pain, and was not going
shopping due to her weight gain. RP 1215:18-1216:13.
In addressing Henderson’s damages request,
Thompson’s counsel did not recommend the jury
accept Henderson’s daily pain and suffering calculation of $250 a day. Rather, counsel commented
Henderson’s recommendation “was pretty interesting”
and seemed “exceptional.” RP 1221:3-4. Thompson’s
counsel went on, “if you believe she was injured, and if
you believe her condition has been aggravated, that
that – you would apply that $250 only to the period of
aggravation or exacerbation reflected by the compe-
31a
tent medical records. . .” Id. at 8-12. Thompson
suggested that period was no more than the eight
months of treatment Henderson had after the accident. Id. at 13-14. If the jury elected to do that, the
amount would be $60,000, which Thompson noted was
“a lot of money.” Id. at 17-18.
Thompson closed by discussing the credibility of
Henderson, contrasting her response to questioning by
her own counsel with cross-examination. Henderson
was forthcoming with information on direct examination. RP 1221:23-25. In contrast:
But when it’s my turn to cross-examine her,
she’s not interested in the search for truth;
she’s interested in being combative. Why are
you putting me on trial? I don’t know what I
told my doctors. I don’t know when I saw my
doctors. I don’t know what they have in my
reports. I didn’t read the medical records . . .
You know, it was – it was quite combative.
There’s – there’s definitely no search for the
truth there.
RP 1222:8-15.
Similarly, Henderson’s actions with defense experts
during her CR 35 exam, which was played in full for
the jury, was described as “combative.” RP 1223:16-17.
Thompson’s counsel also noted Henderson’s refusal to
answer questions about her medical history—testimony
that goes to the quality of her memory. RP 1223:8-13.
Thompson’s counsel characterized her client’s time
on the stand:
By comparison, my client took the stand,
obviously feeling, I think, intimidated and
emotional about the process and-and rightly
32a
so, and provided you with-with genuine and
authentic testimony.
RP 1222:16-19.
D. The Jury Never Demanded Henderson Be
Removed from the Courtroom.
Following the verdict, court adjourned and the jury
was released. CP 129. The trial court explained its
post-verdict procedure during a post-trial hearing and
in response to Henderson’s argument regarding the
alleged request by the jury to remove Henderson
following the verdict:
THE COURT: And Counsel, can I just
interject there? That-that was not the jury. It
is the Court’s practice and perhaps it’s
something the Court should not do anymore,
but in every case the Court has asked the
parties to wait in the hallway so the jury can
speak to the lawyers. That has happened
regardless of the race of the parties. It
happens regardless of the verdict of the
parties. So, that was not a request by the jury.
And it is much to my own personal dismay
that it was taken as an offense by Ms.
Henderson.
RP 1255:3-11.
E. The Trial Court Exercised Its Discretion in
Denying the New Trial Motion and Berhe
Evidentiary Hearing.
1. Motion for a New Trial
Following the jury’s verdict, Henderson filed a
motion for a new trial under CR 59(a)(1), (2), (5), or (9)
on damages alone or an additur under RCW 4.76.030.
CP 134-45. Henderson’s motion relied on mischarac-
33a
terization of closing argument, supposed error in
addressing the spoliation issue, and the alleged
insufficiency of the verdict. Id. Henderson’s motion
failed to discuss the hours of medical testimony
supporting the defense’s theory of the case or any
evidence that supported the jury’s verdict. Id. The
motion also misstated the procedural history on the
motion for reconsideration. Id. at CP 137.
The trial court held a hearing on the new trial
motion on July 10, 2019. RP 1249-67. At the hearing,
the trial court addressed Henderson’s claims regarding the post-verdict jury request and clarified its
procedures. RP 1255. The trial court reviewed some of
the supporting authority provided by Henderson
before issuing its order denying the new trial motion
and additur request on July 17, 2019. RP 1266:11-15;
CP 178-82.
As to the spoliation argument, the trial court noted
Henderson failed to show the existence of any evidence
that was destroyed or that any evidence was intentionally destroyed or withheld. CP 179. Mr. Slaeker’s
testimony was only that he used to have text messages
regarding his surveillance that he sent to Probe
Northwest and the content of which was incorporated
into the final report. CP 179; RP 317:21-22. He also
testified that he took 17 minutes of video during one
hour of surveillance. RP 319:15-16. The trial court
concluded “it cannot be shown that they [additional
videos or notes] probably existed, that they were
probably destroyed, and that they were probably
destroyed with a culpable state of mind.” CP 179. The
jury was permitted to make those inferences, however.
As to implicit bias, the trial court noted there was
no authority that the mere possibility of implicit bias
was grounds for a new trial. CP 180. The terms that
34a
Henderson complained of were (1) not objected to at
trial and (2) tied to the evidence:
Ms. Henderson was very uncomfortable being
cross examined and submitting to the CR 35
examination. There are a multitude of ways
to describe her demeanor and it was not
unfair to describe her as combative given her
unwillingness to answer questions. Ms.
Thompson was also uncomfortable testifying,
although she did not avoid plaintiff’s counsel’s
questions. It was not unfair to describe her as
intimidated, especially when the reference
was to the process and not intimidated by
plaintiff’s counsel. The court cannot require
attorneys to refrain from using language that
is tied to the evidence in this case, even if in
some contexts the language has racial overtones.
RP 180-81.
The trial court noted the relationship between Dr.
Devine and Henderson was not simply doctor-patient
and it was not improper to call Dr. Delaney by her first
name or Ms. Delaney as she was not testifying as an
expert but as a fact witness. RP 181. The trial court
distinguished this case from State v. Monday in which
the prosecutor injected race into the case and had no
evidentiary basis to make his arguments. RP 181.
Finally, the trial court noted the defense did not
concede Henderson’s claimed injuries or method for
calculating damages, and the jury was entitled to
disbelieve Henderson’s witnesses. RP 182. The verdict
reflects that disbelief.
2. Motion for Evidentiary Hearing
Henderson filed a motion for evidentiary hearing
pursuant to State v. Berhe, which was issued two days
35a
after the trial court’s order on the new trial motion. In
her Berhe motion, Henderson made the same allegations of misconduct by defense counsel as well as bias
by the trial court. CP 183-84. Following briefing by the
parties, the trial court denied the motion for evidentiary hearing in a detailed order. CP 187-90. The trial
court found Henderson failed to meet her burden of
establishing a prima facie basis of bias for an evidentiary hearing, noting the lower than desired jury
verdict was not a sufficient basis to pierce the veil of
jury deliberations. RP 188. The trial court reiterated
that the arguments were all tied to the evidence and
there was no allegation by any juror of bias.4 RP 189.
Finally, the trial court noted Henderson’s continuing
misstatement of the procedural history was “not well
taken.” RP 189. Henderson then filed her Notice of
Appeal seeking direct review with this Court. RP 296300.
IV. SUMMARY OF THE ARGUMENT
There is no question that Black people are
overrepresented as defendants in the criminal and
juvenile justice system. Black litigants are entitled
to equal justice and representation in all forms of
litigation. Neither explicit nor implicit bias should
be sanctioned by the court system to preclude justice
to Black litigants. While those truths should be
universal, they do not correlate to a new trial in this
case where there was no evidence of explicit or implicit
bias, argument was based on the evidence and drew
attention to issues of witness credibility, and the jury’s
verdict was wholly supportable by the evidence and
4
Following the trial, Henderson retained a private investigator
to contact the jurors. CP 421, 425. One juror reported the contact
to the trial court, who then advised the parties. Id.
36a
testimony presented by Thompson. Henderson would
have this Court overturn the jury’s verdict based on
unsupported assertions, misrepresentations of the
record, and grossly inaccurate characterizations of the
witnesses. The trial court was in the best position to
gauge whether justice had been served or whether
implicit bias tainted the proceeding. It conducted a
thorough review of the record and determined the
alleged use of “racist tropes” were in fact not racist
statements or imbued with implicit racist inferences,
but were statements reflecting the evidence as presented to the jury. Henderson asked for $3.5 million
dollars in general damages for a rear-end car accident.
She failed to convince the jury the accident did
anything more than temporarily aggravate what was
already a pre-existing and debilitating condition. She
was compensated accordingly. There is no evidence
that any implicit biases of the jurors were triggered in
coming to the verdict. It is a verdict supported by
evidence, not reflecting passion or prejudice.
V. ARGUMENT IN SUPPORT OF AFFIRMANCE
A. The Trial Court Did Not Abuse Its Discretion in
Declining to Grant a New Trial Because the
Jury’s Verdict Was Supported by Substantial
Evidence and There Was No Evidence that
Counsel or the Jury Engaged in Misconduct.
1. The Correct Standard of Review is Abuse of
Discretion, Not Constitutional Harmless Error
The standard for review on a motion for a new trial
based on attorney misconduct is abuse of discretion.
Teter v. Deck, 174 Wn.2d 207, 215, 274 P.3d 336 (2012).
Henderson mistakenly asserts that the trial court’s
order denying the new trial is reviewed for constitutional harmless error and relies on criminal cases
37a
discussing prosecutorial misconduct for such a conclusion. See State v. Monday, 171 Wn.2d 667, 675, 257
P.3d 551 (2011). There is no precedent to apply a
constitutional harmless error standard on a civil
motion for new trial nor should that be the standard.
As discussed in Monday, a criminal defendant’s
right to an impartial jury is constitutionally guaranteed, whereas the Washington Constitution simply
guarantees civil litigants a right to trial by a jury.
Wash. Const. Art. I, § 21. Similarly, a criminal
defendant’s rights related to trial impact constitutional rights to life and liberty, whereas a civil
litigant’s life and liberty are not at issue. Civil courts
apply a review standard that “more generally upholds
trial court decisions.” Alcoa v. Aetna Cas. & Sur., 140
Wn.2d 517, 539, 998 P.2d 856 (2000) (“Alcoa”). Finally,
a prosecutor has an obligation to all the people she
represents, including defendants, and part of that
obligation is to protect a criminal defendant’s right to
a constitutionally fair trial. Monday, 171 Wn.2d at
676. Thompson is not contending that civil cases
should be immune from new trials for misconduct
based on bias, but the constitutional error standard
used in criminal prosecutorial misconduct cases
imports considerations not applicable in civil cases.
The review standard for CR 59(a)(2) is abuse of
discretion.
a. CR 59(a)(2) New Trial Standards
The trial court is given great deference in addressing a motion for a new trial and whether any alleged
misconduct prejudiced a party’s right to a fair trial.
Spencer v. Badgley Mullins Turner, PLLC, 6 Wn. App.
2d 762, 790, 432 P.3d 821 (2018), review denied, 193
Wn.2d 1006 (2019). “A trial court abuses its discretion
if its decision is manifestly unreasonable or based on
38a
untenable grounds or untenable reasons.” Teter, 174
Wn.2d at 215. “A trial court’s decision is manifestly
unreasonable if it is outside the range of acceptable
choices.” Id. at 222. “There is a presumption in favor
of the trial court’s findings, and the party claiming
error has the burden of showing that a finding of fact
is not supported by substantial evidence.” State v.
Merrill, 183 Wn. App. 749, 755, 335 P.3d 444 (2014).
Substantial evidence is “defined as a quantum of
evidence sufficient to persuade a rational fair-minded
person the premise is true.” Andren v. Dake, 14 Wn.
App. 2d 296, 306 (2020) (quotation omitted).
A party seeking a new trial under CR 59(a)(2) must
establish (1) conduct was misconduct (as opposed to
aggressive advocacy); (2) the misconduct was prejudicial;
(3) the misconduct was objected to at trial; and (4) the
misconduct was not cured by the trial court’s instructions. Spencer, 6 Wn. App. at 790. As to the second
prong, the misconduct must be prejudicial in the
context of the entire record. Alcoa, 140 Wn.2d at 539.
Under CR 59(a)(2), the court considers whether “such
a feeling of prejudice [has] been engendered or located
in the minds of the jury as to prevent a litigant from
having a fair trial.” Spencer, 6 Wn. App. at 790.
Though Thompson disputes Henderson can establish
any one of the four elements, Henderson cannot
prevail on the two final prongs as the record is unambiguous as to her lack of objection during Thompson’s
closing, the trial court’s ruling on spoliation, or any
post-verdict conduct.
2. Henderson Misapplies GR 37 as GR 37 Does
Not Apply to Alleged Attorney Misconduct
During Closing Argument in a Civil Trial
and Henderson Failed to Show Any
Violation Thereof
39a
Henderson argues that Thompson’s counsel’s alleged
misconduct during closing argument violated GR 37
and was sufficient to warrant a new trial. Henderson
relies on the amount of the jury’s verdict as the only
evidence of implicit bias. There is no juror affidavit or
any statement from any juror that race had anything
to do with the verdict, unlike in State v. Berhe, 193
Wn.2d 647, 44 P.3d 1172 (2019).
GR 37 applies to jury selection and use of peremptory challenges, an issue of historic discrimination in
American jurisprudence. In Berhe, the Court extended
the principles of GR 37 to a criminal jury verdict:
whether an objective observer could view race as a
factor in a jury verdict. Id. at 665. No Washington
court has applied GR 37 to alleged attorney misconduct during closing argument in a civil trial or to a civil
jury verdict.
Henderson’s reliance on GR 37 is misplaced and
misused. As an example, Henderson relies on GR 37(h)
to support her “lack of trust in the system” when GR
37(h)(ii) is specific to a distrust of law enforcement or
a belief that law enforcement officers engage in racial
profiling. None of that occurred in this case. Similarly,
GR 37(g) on “comparing answers” is inapplicable
outside of the voir dire context and when the
comparison is between the parties’ trial testimony. It
is not improper to draw a contrast between the two
parties based on the substance of their testimony and
highlight the credibility factors set out in the jury
instructions. The jury was instructed by the trial court
that it was the sole judge of the witnesses’ credibility,
and was not to decide the case based on any prejudice
or bias. The jury is presumed to follow a trial court’s
instructions. Nichols v. Lackie, 58 Wn. App. 904, 907,
795 P.2d 722 (1990), review denied, 116 Wn.2d 1024
40a
(1991). The presumption that the jury follows the
instructions is maintained absent a contrary showing.
Dybdahl v. Genesco, Inc., 42 Wn. App. 486, 490, 713
P.2d 113 (1986).
Henderson fails to show that the trial court abused
its discretion in concluding that Thompson’s statements during closing argument were based on the
evidence presented during trial and the jury’s verdict
reflected adoption of the defense theory of the case.
Henderson repeatedly fails to address the evidence
presented at trial but instead relies on misstated or
incomplete testimony, unsupported assertions, and
unfounded accusations. Nothing in the record supports
that Thompson relied on falsehoods or any other
improper basis in closing argument, Thompson did not
disparage Henderson, Thompson did not state that
Henderson had a “problematic attitude,” and Thompson
was not critical of Henderson for allegedly lacking
trust in the CR 35 examination doctors. To the extent
GR 37 applies to attorney misconduct or a civil jury
verdict, Henderson failed to show any violation thereof
by Thompson.
3. Defense Counsel’s Closing Was Rooted in the
Evidence, Not Racial Bias
a. Thompson’s Attack on Henderson ‘s
$3,500,000 Request Was Consistent with
the Evidence, Jury Instructions on
Credibility, and Henderson’s Counsel’s
Argument; It Was Racially Neutral
Effective Advocacy
Henderson asked the jury to award her over
$3,500,000 in future general damages and an additional undetermined amount for past general damages.
Henderson also argued the defense knew this was not
41a
a “small case,” had spent in excess of $50,000 on
experts defending it, and was “relentless in their
efforts” to convince the jury Henderson was not
injured. RP 1183. Counsel argued:
We’re here for a simple car crash case. And
they’ve turned it into this incredible situation. Ask yourself why. And it’s because of
[inaudible] like this is a big dollar case. That’s
why. That’s why.
RP 1192:17-22.
During her closing, Thompson seized on this
characterization of a simple car crash turned
incredible situation:
Now, you’ll recall that during my crossexamination of Ms. Henderson a couple of
days ago, she was confrontational with me,
asking to know why I was putting her on trial.
Her point was, I was hit; I was rear-ended; I
have injuries. And she wants the inquiry to
end there . . . why are we going through this
exercise? And it seems pretty evident that the
reason we’re going through this exercise is
because the ask is for three and a half million
dollars.
RP 1195:6-17.
There was no racial stereotyping of Henderson’s
ask for $3.5M. Henderson argued the defense was
“relentless” and made the case an “incredible situation” for seemingly no reason, much like why Thompson
was putting “me on trial.” RP 893:1. Of course, the
reason for doing that was because she was asking for
42a
$3.5 million dollars. It was not a racialized statement
but one based on Henderson’s own closing arguments,
Henderson’s own testimony that she was unfairly
being put on trial, and her extraordinary request to
the jury for a “simple car crash.”
5
Further, Henderson was defensive on the stand,
expecting that Thompson should roll over and accept
Henderson’s version of events and her claims (including the value). It was proper to raise a witness’s
demeanor as a factor for the jury to consider on
credibility as well as remind the jury of Henderson’s
personal interest in the case. Thompson did not
insinuate that she was defrauding the system but
rather everyone was there to address Henderson’s
multi-million dollar request to the jury.
Henderson gravely understates the record to conclude that implicit bias is the only explanation for the
jury’s verdict. There was a multitude of facts in the
record supporting the jury’s verdict, including Drs.
Sutton and Rappaport’s testimony and Henderson’s
prior records. Henderson simply failed to convince the
jury of the injuries and damages she claimed.
b. Thompson’s Description of Henderson as
Combative and Confrontational Was
Consistent with the Evidence, Jury
Instruction One, and Race Neutral
One of the factors the jury could consider in
addressing credibility was “the manner of the witness
while testifying” as well as “any bias or prejudice the
witness may have shown.” CP 366-67; 6 WASHINGTON
5
Testimony on prior negotiations or settlement discussions
was addressed and excluded by the trial court in a motion in
limine. CP 291.
43a
PRACTICE, Washington Pattern Jury Instructions Civil
1.02 (7th ed. 2019). Understandably, Henderson may
not want to acknowledge that she was confrontational
with defense counsel and during the CR 35 examination,6 but a review of the record supports that it is
an accurate description of her demeanor. On cross
examination, Henderson was “eager to contend”
asking affirmative questions of counsel, questioning
why she was being “put on trial.” RP 893:1. During the
CR 35 examination, she did the same: questioning Drs.
Sutton and Rappaport as to why they were doing
certain tests and declining to answer questions during
the first minutes of the examination or answering “it’s
in my medical records.”7 RP 1021-22, 1023. That is
evasive. Henderson went so far as to accuse the
doctors of purposefully trying to hurt her (which was,
of course, untrue). RP 646-47.
Describing a person’s actual demeanor and comparing how she reacted to her own counsel versus defense
counsel does not equate to racial animus. There is no
support for the proposition that combative is a racially
changed word. It can be and is used to describe anyone.
Courts have commonly referenced witnesses’ combat6
In the nearly hour long closing argument, Thompson’s description of when Henderson was combative was with respect to
those two incidents alone. RP 1222-23.
7
Henderson had the opportunity to explain why she responded
that way to the CR 35 doctors: she felt uncomfortable during the
examination and that she did not trust the doctors. RP 922.
Henderson also took pains to elicit testimony about Dr. Rappaport’s
instructions to her on not having to answer questions. See RP
1015-20. The jury listened to the entirety of the examination,
including the series of questions at the outset that she would not
or could not answer regarding her medical history and injuries.
Whether the jury found Henderson or Rappaport’s explanations
credible was solely within the its province.
44a
iveness as a factor decreasing witness credibility. See,
e.g., Pogrebnoy v. Russian Newspaper Dist., 289 F.
Supp. 3d 1061 (C.D. Cal 2017); Salinas v. Starjem
Rest. Corp., 123 F. Supp. 3d 442 (S.D.N.Y. 2015); U.S.
v. Lisyansky, 2014 U.S. Dist. LEXIS 36186 (S.D.N.Y.
Mar. 13, 2014); and REP MCR Realty v. Lynch, 363 F.
Supp. 2d 984 (N.D. Ill. 2005).
In this case, Henderson was not characterized as an
“angry black woman” or described as out of control,
physically threatening, loud, or someone to be feared.8
Henderson was characterized as a poor medical
historian and confrontational with the defense; both of
those facts were supported by the evidence and are
appropriate to call out before the jury when it considers the credibility factors. At most, defense’s accurate
comments were aggressive advocacy, not misconduct.
c. Characterizing Thompson as Intimidated
by the Legal Process Was Consistent with
the Testimony, Jury Instruction on
Credibility, and Race Neutral
Henderson exaggerates and mischaracterizes closing
argument on Thompson feeling intimidated by the
legal process. There is no dispute that Thompson was
nervous on the stand, as Henderson concedes. Henderson
disingenuously analogizes a nervous first-time witness—
who is being called to testify by opposing counsel—on
the stand as “Central Park Karen.” As the trial court
noted, it was not improper or unfair to characterize
Thompson as uncomfortable and intimidated by the
process. CP 180-81. Characterizing her client as being
intimidated by the legal process and being up on the
8
See Trina Jones & Kimberly Jane Norwood, Aggressive
Encounters & White Fragility: Deconstructing the Trip of the
Angry Black Woman, 102 IOWA L. REV. 2017, 2048 (2017).
45a
stand was not race baiting. It is proper for the jury to
consider the manner of the witness during testimony.
CP 366-67. That is precisely what Thompson’s counsel
focused on. There was no argument that either Henderson or her counsel was intimidating and it is not a
reasonable inference from any part of Thompson’s actual
argument.9
Moreover, defense counsel only briefly mentioned
that Thompson was the only person who could testify
as to how fast she was going. RP 1222. There was no
police investigation and Henderson did not anticipate
the collision. Id. This argument was two sentences in
an hour long closing.
d. Pointing Out Henderson Failed to
Provide Information Was Consistent with
the Testimony, Jury Instruction on
Credibility, and Race Neutral
Credibility of the parties is a critical issue for the
jury’s determination. It was the focus of closing arguments and at the forefront of the jury instructions. CP
366-67. The evidence supported that Henderson declined
to answer questions about her medical history or
discuss her medical records in a case when her chronic
medical condition and the status of her health before
the accident was in dispute. She could not or would not
testify as to those issues and Thompson was permitted
to highlight that for the jury as it goes to Henderson’s
9
Henderson skirts her own culpability regarding the trial
court’s admonishment. Henderson’s counsel was asked not to
argue in front of the jury in response to her violation of a motion
in limine and the trial court attempting to minimize the damage
from that misconduct. RP 1230-31. Henderson’s counsel later
apologized to the court. RP 1240.
46a
credibility. There was no racial overtone, but it was
argument reflecting how the parties actually testified.
Henderson was not credible because she could not
talk about her medical history and declined to review
records to see if they would refresh her recollections.
RP 901-902. Her answers to questions regarding
her medical history were: “I don’t recall,” “I cannot
remember this visit or what I said in the visit or what
the visit was about or anything,” and “I do not
remember.” RP 901, 902, 899. Questioning a plaintiff
on her medical history in a case with well-documented
pre-existing conditions and disputed medical causation
has nothing to do with race but is simply good
lawyering.
Henderson also misstates the record on cross-examination questions. After questions regarding the nature and history of her tics (which she could not
answer), Henderson’s counsel objected and the trial
court sustained any further questions to Henderson
regarding her treatment with Dr. Vlcek. RP 899-900.
There were no more questions on that issue. The court
did not sustain objections (to the extent any were
made) on additional questions on her medical history,
which Henderson again could not answer. RP 900-03,
907.
Likewise, Dr. Rappaport’s testimony was clear and
the jury heard the tape of Henderson declining to
answer the first five questions posed to her regarding
what happened in the accident, what symptoms she
had following the accident, and what symptoms she
currently had. RP 1021-22. Dr. Rappaport was crossexamined and the jury was able to hear his answer
admitting Henderson did end up answering some of
the questions. RP 1030. All this testimony goes to the
47a
witnesses’ credibility, the quality of a witness’s memory,
and the ability of a witness to observe accurately.
e. Pointing Out Three of Henderson’s Lay
Witnesses Used Almost Identical Language
on Her Pre-Accident Personality and
Tourette’s Symptoms Was Consistent
with the Testimony, Jury Instruction on
Credibility, and Race Neutral
Henderson’s friends all testified using almost
identical language regarding her pre-accident personality and pre-accident Tourette’s symptoms. Schontel
Delaney, Jolyn Gardner Campbell and Kanika Green
all described Henderson as “the life of the party.” RP
344, 482, 517. Dr. Delaney, Ms. Gardner Campbell,
and Ms. Green also all described Henderson’s
Tourette’s pre-accident as “throat-clearing,” “clearing
of the throat,” and “a sneeze, cough-type sound.” RP
346, 479, 517. It is unusual to have three lay witnesses
provide almost the exact same testimony, and it is
proper to call that out as worthy of notation by the
jury, who is tasked to judge witness credibility. In
considering witness testimony, the jury was instructed
that it could consider any personal interest the
witness might have in the outcome as well as any bias
or prejudice. CP 366-67. The jury understood Dr.
Delaney, Ms. Gardner Campbell, and Ms. Green were
lifelong friends of Henderson and that family and
friends are there to advocate and provide helpful
testimony, regardless of race. Unlike in State v.
Monday, where the prosecutor argued about an
antisnitch “code” that the prosecutor translated into
“black folk don’t testify against black folk,” there was
no injection of race into their testimony. 171 Wn.2d
48a
667, 674, 257 P.3d 551 (2011).10 Here, the race of the
witnesses was immaterial; the point was that her
friends and family, as her advocates, all said substantively the same thing (using the exact language in the
case of “life of the party”), and their testimony
conflicted with other evidence in the case. It is proper
to call attention to the reasonableness of the witnesses’
statements in context of all the other evidence,
especially when substantively identical testimony is
inconsistent with medical records.
f. A Passing Informal Reference to Schontel
Delaney Was Not Misconduct or Evidence
of Racial Bias
Henderson imputes another unfounded and negative
motivation for defense counsel referring to Schontel
Delaney as “Schontel” and then “Ms. Delaney” during
closing argument. The trial court properly rejected
this argument. Dr. Delaney’s testimony was not related to her professional career and did not require her
degree as a PharmD. There is no racial undertone in
not highlighting a witness’s professional credentials
which were unrelated to her testimony.”
Hamilton v. Alabama, 376 U.S. 650 (1964) is inapposite. In that criminal case, the defendant refused to
answer any questions unless she was call Miss
Hamilton (as opposed to her first name, Mary). The
Supreme Court granted the writ of certiorari and
reversed the trial court’s judgment and finding of
contempt for her refusal to answer. Calling Dr.
Delaney, “Ms. Delaney” when discussing her lay
witness testimony is not equivalent to an Alabama
trial court jailing a Black defendant for wanting to be
10
The prosecutor in Monday committed various other acts of
misconduct sufficient to warrant a new trial. 171 Wn.2d at 681.
49a
addressed formally. There was no implicit racial
animus or import to the reference to Dr. Delaney.11
g. Pointing Out the Friendly Relationship
between Henderson and Dr. Devine Was
Supported by Testimony, Consistent with
the Jury Instruction on Witness Credibility,
and Race Neutral
The trial court properly rejected any argument for
misconduct based on defense counsel’s statement that
the relationship between Henderson and Dr. Devine
was more than a doctor-patient relationship. CP 181.
Dr. Devine testified he hired Henderson during college
to work around his office when he knew she was low
on money. RP 203:6-17. They had a relationship
outside of the doctor-patient, whether that be friends
or employer-employee. This was an appropriate area
of potential bias to call out for the jury during closing
and was but one of a litany of reasons to disregard Dr.
Devine’s testimony and question his credibility. RP
1205-09.
There was no implication that Henderson and Dr.
Devine had a sexual relationship when it was expressly
noted that it was nothing untoward. RP 1206:20.
Henderson cites to an article by Andrea Mathews, who
concludes: “Bottom line? We mean what we say and
do.”12 Using Ms. Mathews’ conclusion, defense counsel
11
If there was, Henderson committed the same error in
previous trial court filings in which she referred to this witness
exclusively as “Schontel Delaney” and “Ms. Delaney” and Schontel
Delaney herself signed a declaration void of any mention of her
PharmD credential or reference to her as a “Dr.” CP 426-36.
12
Andrea Mathews, LPC, NCC, “I Didn’t Mean It” or “It Didn’t
Mean Anything,” Disclaimers of wholeness, PSYCHOLOGY TODAY,
50a
meant what she said: there was nothing untoward
about the relationship.
h. Pointing Out Henderson Had Significant
Pre-Existing Conditions and Disability
Was Consistent with the Testimony, Jury
Instructions, and Race Neutral
Henderson failed to raise the issue of disability
discrimination at the trial court and has waived her
right to any appeal on that issue. John Doe v. Puget
Sound Blood Ctr., 117 Wn.2d 772, 780, 819 P.2d 370,
374 (1991). Even so, it has no merit. At no point did
Thompson argue that Henderson should not be compensated because she had a pre-existing condition or
disability. Henderson acknowledged she was compromised prior to the collision during her testimony and
in closing argument. RP 924:18-20; RP 1176:16-19.
The jury was tasked with determining the extent of
any aggravation of Henderson’s pre-existing condition.
CP 377.
Henderson consistently misrepresents that Thompson
argued $60,000 would be an appropriate award for any
aggravation. Thompson did not endorse Henderson’s
suggestion of $250 per day as the measure of damage,
but if the jury adopted it, used it to illustrate a possible
high-end award. Thompson suggested if the jury found
Henderson was injured and applied that $250 per day
award, they should do so only for the period of aggravation or exacerbation reflected by the competent
medical records, which would be no more than the
eight months Henderson received treatment immediately after the accident. Notably, Thompson described
Feb. 1, 2015, https://www.psychologytoday.com/us/blog/traversingthe-inner-terrain/201502/i-didntmean-it-or-it-didnt-mean-anything.
51a
that $60,000 figure as “exceptional” and “a lot of
money.” RP 1221.
It is unreasonable to conclude that Thompson’s
argument on aggravation damages was couched in
disability discrimination. $60,000 for a temporary
aggravation of her chronic muscle pain for which she
treated for approximately eight months would be an
exceptional financial recovery. There was never an
argument that the jury should not award “full
compensation” because Henderson was disabled nor
did Henderson cite any part of the record to support
such an assertion.
4. Substantial Evidence Supported the Jury’s
Verdict and Henderson Failed to Meet Her
Burden to Show Entitlement to a New Trial
under CR 59(a)(1), (5), or (9)
Both CR 59(a)(1) and 59(a)(9) are reviewed to
determine if “‘such a feeling of prejudice [has] been
engendered or located in the minds of the jury as to
prevent [the] litigant from having a fair trial.’” M.R.B.
v. Puyallup Sch. Dist., 169 Wn. App. 837, 848, 282 P.3d
1124, 1130 (2012). The new trial remedy under CR
59(a)(9) should be rarely granted given the other
available grounds for a new trial under CR 59(a).
Millies v. LandAmerican Transnation, 185 Wn.2d 302,
319, 372 P.3d 111 (2016). Furthermore, overturning a
jury’s verdict under CR 59(a)(9) should only occur
when the verdict is “clearly unsupported by substantial evidence.” Faust v. Albertson, 167 Wn.2d 531, 538,
222 P.2d 1208 (2009). All reasonable inferences from
the evidence are interpreted in a light favorable to the
original non-moving party (i.e., Thompson), and the
jury is given deference on issues of credibility, conflicting testimony, and persuasiveness of the evidence. Id.
52a
Under CR 59(a)(5), determining the amount of
damages falls to the jury, and courts are reluctant to
interfere with a jury’s fair damage award. Palmer v.
Jensen, 132 Wn.2d 193, 197-198, 937 P.2d 597, 599
(1997). Denial of a new trial sought under CR 59(a)(5)
is reviewed for abuse of discretion. Wooldridge v.
Woolett, 96 Wn.2d 659, 668, 638 P.2d 566 (1981). An
appellate court will look to the record to determine
whether there was sufficient evidence to support the
verdict. McUne v. Fuqua, 45 Wn.2d 650, 652, 277 P.2d
324 (1954). Where sufficient evidence exists to support
the verdict, it is an abuse of discretion to grant a new
trial. Id. at 653.
Giving all reasonable inferences to Thompson, the
jury’s verdict is well supported by the evidence and
any credibility determinations it made. Thompson’s
medical experts provided hours of testimony regarding
their review of the records, citation to records that
demonstrated Henderson’s Tourette’s was more severe
pre-accident than she admitted, and evidence of preexisting degeneration in her neck and complaints of
pain was sufficient to warrant an MRI and discussion
of injections. Further, the jury witnessed video of
Henderson engaged in her front-end position at Costco
in March 2015 and heard her testify that she worked
in that position for approximately three months before
assuming another physically demanding position at
Walgreen’s. The evidence supported that Henderson
had a temporary aggravation of her chronic neck
pain and no medically documented change in her
Tourette’s. Within eight months, she had ceased
treating and started her job at Costco. Awarding
$9,200 to her for general damages for the short-term
aggravation is well within reason. The trial court did
not abuse its discretion in denying a new trial under
CR 59(a)(1), (a)(5), or (a)(9).
53a
Henderson argues that the jury award was due to
implicit bias or the result of passion of prejudice
because it was only 15.33% of the amount “suggested
by Thompson.” Br. at 35. “Alleged passion or prejudice
on the part of the jury is grounds for granting a new
trial under CR 59(a)(5) only if the record indicates that
the verdict was not within the range of proven
damages.” James v. Robeck, 79 Wn.2d 864, 870-71, 490
P.2d 878 (1971).
As discussed above, Henderson misstates the record
as to what Thompson “suggested” to the jury as well
as ignores the mountain of evidence supporting the
jury’s verdict. Thompson did not endorse either the
proposed $250/day award or a $60,000 verdict, but
characterized such an award as “exceptional” and “a
lot of money.” RP 1221:4, 17-18. Thompson’s closing
argument focused on the minimal aggravation of
Henderson’s pre-existing conditions, which were well
documented in the records, and resumption of physical
activity as evidenced in the March 2015 video. The
jury considered the evidence and reached its own
determination on the value of Henderson’s damages.
The award, which only encompassed general damages,
reflects damages consistent with the Thompson’s
presentation of evidence.
Henderson also spins a narrative regarding postverdict trial court procedures that the trial court itself
has debunked.13 Court had adjourned. CP 129. The
trial court’s practice was to remove litigants post13
Henderson’s assertion that what she and her attorneys
allege is now a “fact of the case” finds no support in CR 8(d), which
pertains to denials in pleadings. The trial court expressly stated
on the record that Henderson’s allegation that the jury asked for
her removal was untrue during the new trial hearing and again
in its Order on the evidentiary hearing. See RP 1255, CP 188.
54a
verdict regardless of the race of the parties or outcome
of the trial. RP 1255, CP 188, n.1. Thompson was not
present for the jury verdict, otherwise she would have
been asked to leave as well. Nothing in the record
suggests the jurors believed Henderson was “violent,
dangerous, or otherwise would make a scene”- to so
conclude would be pure speculation, especially in light
of the trial court’s clarification of its procedures.
Further, Henderson takes issue with the trial court’s
bailiff “calling out to see if Henderson was gone,” and
the bailiff could have easily looked and “not made
further spectacle of Henderson’s removal.” Br. at 35.
Thompson does not dispute that Henderson took
offense by the bailiff’s words, but there is no nexus to
racial animus or bias by the jury, especially given
clearing the courtroom was the trial court’s procedure.
The jurors ultimately did not talk to either attorney
after a long trial. The trial court’s practice of removing
litigants following a verdict is not evidence of juror
bias or a basis for a new trial.
5. The Trial Court’s Decision to Deny a New
Trial Considered the Entire Record and
Totality of the Circumstances
Henderson contends the trial court failed to consider
the totality of circumstances in its order denying the
new trial. She could not be more wrong. The trial
court’s order reflects its detailed and considered
review of the record as well as the authorities cited by
Henderson. It is Henderson who fails to look at the
record as a whole or acknowledge the evidence presented by the defense. Henderson declined to order or
review the transcript from closing argument as was
evident in the briefing. Her motion for new trial was
rife with misstatements and inaccuracies about the trial.
55a
In contrast, the trial court considered the context,
circumstance, and most importantly, the record in
addressing the motion for a new trial. CP 178-82. As
the trial court noted, there was no evidence of implicit
bias in the jury’s verdict and the verdict was supported
by the evidence. CP 181-82. Thompson’s arguments
during closing were based on the evidence and
testimony presented14 and focused on the credibility
factors set out in Jury Instruction No. 1: potential bias
or prejudice of witnesses, the quality of a witness’s
memory, the manner of the witness when testifying,
the personal interest, and the reasonableness of witness
testimony in the context of all the other evidence. CP
366. There is nothing improper about such arguments
as they are the result of appropriate advocacy. The
trial court noted Thompson did not concede Henderson’s
claimed injuries or method of calculating damages. CP
181-82. The trial court also properly noted that the
jury was entitled to disbelieve Henderson’s witnesses
and its verdict was “not outside the evidence presented.”15 CP 182.
Finally, the trial court considered Henderson’s
authorities, including State v. Monday, 171 Wn.2d
667, 257 P.3d 551 (2011). In Monday, the prosecutor
repeatedly asked African American witnesses about
14
Yet again, Henderson alleges Thompson’s arguments were
based on “falsehoods” without any citation or reference to any
falsehood. As discussed above, Thompson’s arguments were based
on the witnesses’ testimony, documentary evidence, and the
credibility factors set out in the jury instruction.
15
The trial court did not need to consider that the jury asked
for Henderson’s removal because that did not happen as the trial
court addressed at oral argument. RP 1255:3-11.
56a
an antisnitch “code.” Id. at 678. In closing argument,
he then characterized the “code” as “black folk don’t
testify against black folk” and returned to that point
multiple times during closing. Id. at 674. As this Court
noted, there was no support in the record (nor is it
accurate) to attribute an antisnitch code to African
Americans. Id. at 678. The prosecutor’s pronunciation
of police as “po-leese” in the direct examination time
and time again served only to highlight race and
emphasize the “black folk don’t testify against black
folk” contention. Id. at 679. Combined with the prosecutor’s commentary on his office, the veracity of
criminal defendants, and the guilt of the defendant,
this Court concluded it could not say that the prosecutorial misconduct did not affect the jury’s verdict. Id.
at 681. Citing the dissimilarities between this case and
Monday, the trial court noted that “the facts of this
case, and the substance of the argument in this case,
are materially different with evidentiary based reasons
for defense counsel’s argument.” CP 181. Thompson’s
closing reflected the parties’ testimony and demeanor
that the jury witnessed, without any injection of race.
Thompson did not refuse to answer questions or
confront Henderson’s counsel on the stand. Henderson
dId. Henderson’s long-time friends all used the exact
same phrase to describe her personality and similar
characterizations of her pre-accident Tourette’s symptoms. It was within the bounds of appropriate
advocacy to suggest that they had a motivation to
support her and provide favorable testimony that was
16
16
Henderson misconstrues the Court’s discussion in Monday
regarding the “code.” The issue was not the testimony about an
antisnitch “code” but the prosecutor’s direct connection of it to
African-Americans only, for which there was no evidence in the
record to support (and is generally rejected by scholars). Id. at
678.
57a
unusually identical and did not match up with
Henderson’s own medical records. If witnesses are all
saying the exact same thing, such an argument would
be proper regardless of race.
6. The Order Denying New Trial Is Not
Racially Biased
There are two threshold issues to address regarding
the new trial order. First, Henderson seeks to apply a
Berhe standard to the new trial order when the Berhe
decision had not been issued.17 Henderson did not
request an evidentiary hearing at the time of her
motion for a new trial. Accordingly, the trial court
could not have abused its discretion in denying the
motion without an evidentiary hearing when none was
requested and before the ruling in Berhe.
Second, the language used by Thompson’s counsel
was not objected to at trial. CP 180; RP 1194-1230.
“Absent an objection to counsel’s remarks, the issue of
misconduct cannot be raised for the first time in a
motion for a new trial unless the misconduct is so
flagrant that no instruction could have cured the
prejudicial effect.” Warren v. Hart, 71 Wn.2d 512, 51819, 429 P.2d 873 (1967). In this case, Henderson failed
to object to Thompson’s closing arguments that she
now contends were racist. She cannot now rely on
purportedly objectionable statements for a new trial
after remaining silent and hoping for a favorable
verdict. Hopkins v. Copalis Lumber Co., 97 Wn. 119,
120, 165 P. 1062, 1062 (1917).
Moreover, the trial court’s order denying the new
trial is not biased on its face. Recognizing that implicit
17
Berhe was decided on July 18, 2019 and the trial court denied
Henderson’s motion for a new hearing on July 16.
58a
biases exist, the trial court held that the mere
possibility of implicit bias was not enough to order a
new trial or additur. CP 180. The trial court correctly
noted there were no overtly racist statements made or
any specific evidence of impermissible racial motivations by the jury, but the trial court did not require
either overt racism or specific evidence of bias. CP 182.
Instead, the trial court went through the record to
address each of the allegations by Henderson and
noted that the purportedly objectionable language
used in Thompson’s closing was not racist dog whistles
but reflected the evidence before the jury:
Ms. Henderson was very uncomfortable being
cross examined and submitting to the CR 35
examination. There are a multitude of ways
to describe her demeanor but it was not
unfair to describe her as combative given
her unwillingness to answer questions. Ms.
Thompson was also uncomfortable testifying,
although she did not avoid plaintiff’s counsel’s
questions. It was not unfair to describe her as
intimidated, especially when the reference
was to the process and not intimidated by
plaintiffs counsel. The court cannot require
attorneys to refrain from using language
that is tied to the evidence in the case, even if
in some contexts the language has racial
overtones.
CP 180-81.
Henderson contends that the trial court should have
precluded counsel from using accurate language to
describe the parties’ testimony. That is an untenable
request. As the trial court noted, the descriptions used
by defense counsel accurately described the parties’
testimony, even though in some contexts (not applica-
59a
ble here) the language may have racial overtones.18
Limiting counsel’s ability to describe witness’s testimony accurately would lead to a disparate application
and linguistic gymnastics: a combative or argumentative white witness could be described as such but a
combative or argumentative Black witness could not
be. Using an accurate descriptor of a witness’s demeanor
does not equate to misconduct or the existence of a
biased jury verdict as the trial court recognized.
Henderson also overstates the trial court’s inquiry
regarding her rebuttal questions to Thompson (who
Henderson had called as a witness). The trial court did
not ask her to disclose her specific questions but noted
it was unusual to call Thompson back on the stand and
she was calling the jury back to finish up the trial
testimony. RP 1112-13. Henderson expressed concern
that Thompson could go outside to figure out an
answer to the questions but that simply did not occur.
There was a short discussion on timing and then the
jury was brought in and Henderson asked the questions about property damage to the Henderson vehicle.
RP 1115-16. Henderson was able to accomplish exactly
what she wanted; this was all done outside the
presence of the jury; and the exchange reflects the trial
court’s desire to keep the trial moving. It is wholly
unclear how this signaled Thompson would be
“protected.”
Finally, the trial court failed to consider the jury’s
demand for the removal of Henderson as racially
motivated because the jury did not make such a
demand. There is no factual support that Henderson
18
As a hypothetical example: describing a Black female witness
or plaintiff as combative, angry, or out of control without any basis
in the testimony.
60a
was asked to leave post-verdict because of her race or
for the “comfort” of white people.
B. The Trial Court Did Not Abuse Its Discretion in
Not Holding a Berhe Evidentiary Hearing and
Not Holding a Hearing Does Not Provide a
Basis for a New Trial.
The trial court’s ruling on an evidentiary hearing is
reviewed for abuse of discretion: “A trial court has
significant discretion to determine what investigation
is necessary on a claim of juror misconduct.” State v.
Berhe, 193 Wn.2d 647, 661, 44 P.3d 1172 (2019). A
central tenant of our litigation system is the secrecy
and sanctity afforded to jury deliberations, which
cannot be pierced absent “cases of juror bias so
extreme that, almost by definition, the jury trial right
has been abridged.” Id. at 658.
Berhe reaffirmed the standard in State v. Jackson
that for a motion for a new trial based on allegations
of juror racial bias, the trial court should conduct an
evidentiary hearing before ruling on a new trial
motion. 193 Wn.2d at 666. In both Berhe and Jackson,
the trial court was presented with juror statements on
potential juror misconduct based on race. Id.; State v.
Jackson, 75 Wn. App. 537, 879 P.2d 307 (1994), review
denied, 126 Wn.2d 1003, 891 P.2d 37 (1995). Prior to
conducting an evidentiary hearing, the moving party
must make a prima facie showing of racial bias. Berhe
193 Wn.2d at 666. A possibility of implicit bias is everpresent in our society, but that fact alone is not enough
to trigger a Berhe evidentiary hearing. The moving
party must make a prima facie showing of racial bias.
In addressing a prima facie showing of racial bias,
the trial court must determine “whether an objective
observer. . . could view race as a factor in the verdict.
61a
If there is a prima facie showing that the answer is
yes, then the court must hold an evidentiary hearing.”
Id. At the prima facie stage, if the evidence is unclear,
a court must inquire further of a juror “to provide more
information or to clarify ambiguous statements.” Id.
Henderson fails to articulate how she met her
burden to show a prima facie case of racial bias in the
jury’s verdict. Simply stating that implicit bias was a
factor in the jury’s verdict does not make it so nor is
that evidence of juror misconduct. Henderson went so
far as to contact jurors but provided no declaration
from a juror stating that the jury or a juror engaged in
misconduct or expressed concern that the verdict or
the deliberation process was not fair. CP 421, 425. This
is in stark contrast to the facts in Berhe and Jackson,
both of which involved jurors stepping forward with
allegations of potential misconduct. Henderson has
only proffered a self-serving theory, based largely on
unsupported assertions and demonstrably false statements from the record. CP 183-84. The trial court
was not obligated to accept those assertions as true,
especially when they could be compared to the record
and disregarded as false, as they were not “evidence.”
The trial court reviewed the briefing and assertions
before it and concluded there was no permittable
inference that an objective observer aware of the
influence of implicit bias could view race as a factor in
the jury’s verdict. Henderson’s only argument was the
verdict was so low it could only be the result of bias,
which the trial court had already rejected and
explained that the verdict was supported by the
evidence. CP 182.
In the complete absence of evidence that a verdict
was based on racial bias, Berhe does not require an
evidentiary hearing. The procedure outlined in Berhe
62a
is reserved for exceptional circumstances: those in
which a juror comes forward asserting misconduct or
suspected misconduct occurred. Berhe does not suggest
that following each trial the court should investigate
the rationale behind a verdict when one party is
disappointed with the outcome and alleges without
evidence that it must be the result of bias. The trial
court did not abuse its discretion in denying the
motion.
C. The Trial Court Did Not Abuse Its Discretion in
Declining to Give a Spoliation Instruction,
There Was No Evidence the Ruling Reflected
Bias, and the Decision to Decline a Spoliation
Instruction Provided No Basis to Order a New
Trial.
Henderson fails to show the trial court abused its
discretion in denying a spoliation instruction at the
close of evidence and by permitting Henderson to
argue the inference that Mr. Slaeker was not credible
based on the limited video production and inconsistent
testimony. As a preliminary issue, Henderson again
misstates the record. The Probe Report was produced
prior to trial, there were no notes to produce, and the
trial court did issue a sanction in permitting an
unfavorable inference on the video and excluding the
Probe Report from evidence. RP 157, 284-88; CP 17980; CR 37(b)(2)(B). The trial court’s conclusion on not
issuing the spoliation instruction followed Henderson’s
failure to put forth evidence of missing videos or notes
that were destroyed by Thompson or her agents. CP
179. Under those circumstances, a spoliation instruction would have been inappropriate. See Pier 67 v.
King County, 89 Wn.2d 379, 573 P.2d 2 (1977).
The trial court addressed the evidentiary issues
based on the record before it. Initially, the trial court
63a
granted Henderson’s motion in limine on spoliation
based in part on the absence of the Probe Report and
excerpts of Mr. Slaeker’s deposition testimony. RP 5556. Following Thompson’s motion for reconsideration
and a hearing,19 the trial court permitted Henderson
to inquire as to the same videotaping and note taking
issues but would not permit Henderson to engage in a
line of misleading questions. RP 55, 176-78. The trial
court also excluded the report and any reliance on it.20
RP 178. The trial court reserved ruling on Thompson’s
motion for reconsideration noting that it was not clear
whether notes, independent of the text messages that
were not maintained by Mr. Slaeker, existed or were
destroyed. CP 102-03. Mr. Slaeker’s trial testimony
was that there were no additional notes and there was
no additional video. RP 306:1-5; 319:15-16.
The trial court did not abuse its discretion in
denying the request for a spoliation instruction, and
there was no irregularity or abuse of discretion by
which Henderson was prevented from having a fair
trial.21 Before Mr. Slaeker’s testimony, the trial court
was faced with conflicting evidence regarding the
existence of any notes or video surveillance. The
testimony at trial was that there were no notes aside
from the texts that formed the report and those were
19
Thompson’s motion speaks for itself, including the legal and
factual reasons for the trial court to reconsider its position,
including addressing culpability and the insignificance of the
alleged missing evidence. CP 97-98.
20
The trial court gave Henderson the opportunity to raise the
issue of the late production of the report. RP 312:7-9.
21
Henderson does not specifically cite any of the enumerated
bases for a new trial under CR 59 in her discussion of the
spoliation instruction. Thompson therefore assumes she moves
under the same subsections identified earlier in her motion.
64a
no longer accessible and there was no other video
surveillance. Mr. Slaeker explained why there was
only seventeen minutes of video; there was no trial
testimony that he videotaped for an hour, nor does
Henderson cite to any. Mr. Slaeker was subject to
vigorous cross-examination regarding his deposition
testimony; whether the jury found him credible was
within their province. The trial court’s sanction
excluding the Probe Report and permitting the
inference that there was missing video given the hours
of surveillance versus the produced video was reasonable and appropriate following all the evidence
regarding the surveillance. Finally, Henderson did not
object to the trial court’s ruling. RP 1147.
Henderson fails to show the trial court had no basis
for its rulings on spoliation—it did—or misapplied the
law—it did not. Henderson had every opportunity to
cross-examine Mr. Slaeker, argue the unfavorable
inference, and did not object the trial court’s
ultimately ruling on spoliation. There is no basis for a
new trial based on the denial of the spoliation
instruction.22
D. The Trial Court’s Practice of Removing the
Parties Post-Verdict Was Not Evidence of Bias,
Did Not Impact the Verdict, and Provided No
Basis to Order a New Trial.
Thompson disputes that Henderson was removed at
the jury’s request. There is no right to a person to
remain in a courtroom following a trial. The court
proceeding had concluded so article I, section 10 of the
22
Finally, Henderson includes a list of other reasons why the
trial court was biased, many of which rehash assertions made
earlier in her brief and have been addressed. See II.A.8, 9;
IV.A.3.c; IV.A.6.
65a
state constitution is inapplicable as is Allied Daily
Newspapers of Wash. v. Eikenberry, 121 Wn.2d 205,
211, 848 P.2d 1258 (1993), which addressed the
sealing of documents. Justice had been administered
and trial concluded: the jurors had been excused and
the court adjourned. CP 129. The trial court explained
that its practice was to ask all the parties and nonattorneys to leave following the trial adjournment,
regardless of race. CP 188; RP 1255:3-11. Taking
offense at being asked to leave the courtroom post-trial
does not equate to an unfair trial or jury bias and
Henderson cites no authority in support thereof. Even
if the jury made the request, it is pure speculation to
conclude it was due to racial animus.
VI. CONCLUSION
Henderson had a lot riding on this trial - $3.5
million. She was able to put on the witnesses she
wanted and tell her story to the jury. The jury simply
did not believe that this accident caused her $3.5
million in pain and suffering. This Court should affirm
the trial court on all issues and award costs on appeal
to Thompson. RAP 14.2.
DATED this 10th day of November, 2020.
Respectfully submitted,
/s/ Gregory S. Worden
Gregory S. Worden, WSBA #24262
/s/ Laura Hawes Young
Laura Hawes Young, WSBA #39346
Lewis Brisbois Bisgaard & Smith LLP
Attorneys for Respondent
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.