The Court of Appeals of the State of Washington (“Washington Appellate Court”) held in its unpublished opinion filed on February 20, 2018 in a Washington medical malpractice wrongful death case that testimony regarding the decedent’s prior drug use was properly admitted into evidence.
The plaintiff’s claims of medical negligence centered around the defendants’ failure to properly diagnose and treat the decedent’s squamous cell carcinoma located in a growing lesion in a former skin graft on his left forearm that resulted in the spread of the cancer and his death (the decedent’s left arm had to be amputated; despite the amputation, the cancer continued to spread, and he died on October 19, 2014).
Prior to the Washington medical malpractice wrongful death trial, one of the defendants filed a motion in limine requesting permission to offer evidence of the decedent’s prior drug use at trial, arguing that such evidence was relevant to the issues of the decedent’s life expectancy and truthfulness in reporting his symptoms. The trial court ruled that evidence of the decedent’s prior drug use was relevant to life expectancy and pain management.
During trial, the trial court gave the jury an oral limiting instruction sua sponte: “The Court has admitted evidence regarding [the decedent’s] drug usage, at least in this context, for one purpose only. And that is there’s going to be an issue that’s going to be raised with you regarding life expectancy. And I’m admitting this evidence so that you can consider that issue. But you should not consider the drug usage for any other purpose.” The Washington medical malpractice wrongful death jury determined that the defendant did not fail to comply with the standard of care, and the plaintiff appealed.
The Washington Appellate Court stated that all relevant evidence is admissible unless otherwise barred (ER 402), but relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence (ER 403). Evidence is probative if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence (ER 401).
The Washington Appellate Court stated that shortened life expectancy is probative on the issue of recoverable damages in a medical malpractice case. Similarly, the health, habits, and activity of the person whose life expectancy is in question is relevant to the issue of damages. Unfair prejudice is caused by evidence likely to arouse an emotional response rather than a rational decision among the jurors. The Washington Appellate Court stated that if the evidence at issue is probative to a central issue in the case, the likelihood of it being outweighed by the danger of unfair prejudice is “quite slim.”
The Washington Appellate Court further stated that if the possibly prejudicial evidence is admitted, an explanation should be made to the jury of the purpose for which it is admitted, and the trial court should give a cautionary instruction that it is to be considered for no other purpose or purposes. The jury is presumed to follow the court’s instructions. The burden of showing prejudice is on the party seeking to exclude the evidence.
The Washington Appellate Court held that the decedent’s recreational drug use was probative on the issue of the decedent’s life expectancy. One physician testified in his deposition testimony that drug abuse was correlated with shortened life expectancy. At trial, another physician testified that the decedent’s drug use habits considerably shortened his life expectancy. In addition, another physician testified about the aggressive nature of the decedent’s Marjolin’s ulcers, and how trauma from the decedent’s drug use and his subsequent skin graft led to the cancer spreading to the decedent’s bones prior to breaking through the skin. Thus, expert testimony from both parties established that the decedent’s prior drug use was probative to the issue of his life expectancy.
The Washington Appellate Court held that because the decedent’s prior drug use was probative on the issue of his life expectancy, the plaintiff bears the burden of demonstrating that the evidence’s probative value was outweighed by unfair prejudice, and the plaintiff failed to carry that burden. The Washington Appellate Court further held that the plaintiff had not demonstrated that a juror’s question demonstrates that the trial court’s limiting instruction was ineffective or that the jury was unfairly prejudiced.
Source Enebrad v. Multicare Health System, d/b/a Multicare Auburn Medical Center, No. 75369-0-1, Division One.
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