LOU OLIVEROS AND LYNETTE OLIVEROS v. DAVID ROMM JANE DOE ROMM ROMM CONSTRUCTION INC (2011)

— We review a trial court's denial of a motion for a new trial or additur for an abuse of discretion.   Here, a Franklin County jury awarded Lou Oliveros $61,000 in general damages stemming from a 2002 motor vehicle accident for which the other driver, David Romm, admitted fault but contested damages.   The jury awarded zero amounts to Mr. Oliveros for economic damages and to his wife Lynette for loss of consortium.   The trial court denied the motion for a new trial.   The Oliveroses appeal, contending (1) a juror declaration shows the verdict was the product of misconduct by the presiding juror, and (2) the inadequate damage award unmistakably shows jury bias and prejudice.   Because we conclude the trial court did not err, we affirm the verdict.

Family physician Dr. Jennifer Brindle first examined Mr. Oliveros seven days after the 2002 accident.   He reported headache, neck stiffness, dizziness, blurred vision, and extreme fatigue.   Cervical x-rays and a head MRI ¹ scan taken the following week were normal, but he complained of being anxious, feeling depressed, and having trouble sleeping.   Dr. Brindle diagnosed depression and post traumatic stress disorder (PTSD).  She prescribed multiple medications.   In November 2002, Mr. Oliveros complained of neck pain, headaches, and sexual dysfunction.   Dr. Brindle diagnosed depression, cervical strain, and post-concussive syndrome secondary to the motor vehicle accident.   The diagnoses were the same after several follow-up assessments in 2003 through 2004 and in February 2005.   Dr. Brindle said Mr. Oliveros's condition had not significantly improved at the time of the 2009 trial.   She opined that all of his conditions and inability to continue working were caused by the 2002 accident, and that none were caused by the 2005 accident.

Mr. Oliveros complained of like symptoms to neurologist Dr. Clarence Washington, who first examined him about five weeks after the 2002 accident.   Dr. Washington found his physical and mental status and an EEG ² test of physiological brain function all normal.   But he interpreted psychological test results to mean Mr. Oliveros suffered significant brain damage on a microscopic level that did show on his normal MRIs, thus accounting for his chronic complaints.   Dr. Washington diagnosed post-concussive syndrome, panic disorder/anxiety and work-related stress.   He later also diagnosed PTSD with depression and emotional issues that persisted at the time of trial in 2009.   Dr. Washington concluded that more probably than not Mr. Oliveros has post-concussive syndrome from traumatic brain injury that is responsible for his current conditions and side effects from necessary medications—all directly attributable to the 2002 accident.

Cardiologist Dr. Wendell Robinson first evaluated Mr. Oliveros one month after the 2002 accident for reported chest pressure.   Electrocardiograms were normal and Dr. Robinson saw nothing of significance from a cardiac standpoint.   Dr. Robinson evaluated him on numerous occasions until 2005 and diagnosed panic attacks and rapid heartbeats.   In March 2005, he recommended that Mr. Oliveros discontinue work and seek disability retirement.   He opined that the 2002 accident caused the heart problems, although he admitted litigation is also a stressor for Mr. Oliveros.   Mr. Oliveros also told Dr. Robinson that his employment position would be eliminated at the end of 2004.   Fluor did not fill that position after he retired in 2005.

Psychiatrist Dr. Thomas Dillon conducted an independent medical examination of Mr. Oliveros one year after the 2002 accident.   Dr. Dillon saw nothing significant in his history prior to the accident except for a stressful job environment.   Dr. Dillon initially diagnosed (1) cognitive disorder not otherwise specified, which he labeled post concussional disorder based upon evidence that he might have had some mild brain damage from head trauma, (2) PTSD because he was badly scared by the accident,

(3) pain disorder, (4) panic disorder, and (5) major depression.   Dr. Dillon subsequently received Mr. Oliveros as a private patient from May 2004 until March 2008.   The earlier diagnoses did not change.   Dr. Dillon opined that the 2002 vehicle accident was the predominant cause of Mr. Oliveros's conditions and more probably than not affected his job performance.   Dr. Dillon admitted, however, that he does not investigate the veracity of his patients' statements and gives them the benefit of the doubt.   He conceded that Mr. Oliveros's pain and discomfort was greater than could be accounted for by his physical symptoms.   He also said nothing changed in Mr. Oliveros's job responsibilities after the 2002 accident.   He conceded that Mr. Oliveros's panic disorder, depression, and the temporal relationship to the 2002 accident could be purely coincidental.

Economist Dr. Clarence H. Barnes testified that the Oliveroses' past and future economic damages post–2002 accident totaled $836,818.   The defense did not put on an expert to controvert Dr. Barnes's testimony.

Several members of Mr. Oliveros's church testified that he was an active and well-respected church leader prior to the 2002 accident, but discontinued his participation and was not the same engaging person after the accident.

Defense Evidence . Neurologist Dr. Linda Wray conducted an independent medical examination of Mr. Oliveros.   She reviewed his medical records and determined that all objective tests conducted after the 2002 accident, including neurological exams, EEGs, and MRIs were unremarkable.   His physical examination was objectively completely normal with no evidence of any neurologic or brain injury.   This indicated he had no significant brain injury and no physical basis for any of his continuing complaints.   His records did show previous neck injuries with a diagnosis of disk degenerative disease in 2000.

Dr. Wray also noted that psychologist Dr. Philip Barnard diagnosed Mr. Oliveros with somatoform pain disorder, meaning his pain is not due to any physical problem but has an emotional or psychological basis.   Dr. Wray opined that Mr. Oliveros did not sustain any significant injuries in the 2002 accident, and that any minor injuries had resolved.   She said there was no need for any treatment based upon physical residuals or a neurological problem and that his sorts of injuries from that accident are self-healing without need for treatment.

With regard to brain injury, Dr. Wray further testified that Mr. Oliveros's actions after the accident also belied that claim.   Specifically, he was cleared to go right back to work, got in his car that day and made several deliveries, and continued to work for another two and one-half years.   Dr. Wray found no evidence of physical or functional impairment that would prevent him from carrying out his daily activities or his occupation between the dates of the 2002 and 2005 accidents.   She also said panic disorder is not a common aftermath of a brain injury.

Psychologist Dr. Ronald Klein evaluated Mr. Oliveros to determine whether he sustained any psychological or neuropsychological injuries as a result of the 2002 accident.   Mr. Oliveros reported significant stress and conflict in his workplace that was unrelated to the accident.   He said his work environment became more difficult in 2001 when new management was less supportive.   Dr. Klein concluded the 2002 accident did cause Mr. Oliveros a temporary increase in anxiety and difficulties coping with stress and conflict, but that it did not render him physically or psychologically disabled.   Dr. Klein reasoned that he was able to work on the day of the accident and “all the days for the next three years” under “even more difficult conditions.”   CP at 147–48.   Dr. Klein also concluded that Mr. Oliveros did not meet the diagnostic criteria for PTSD, that he did not suffer a traumatic brain injury, and that he had no psychological diagnoses caused by the 2002 accident.   Dr. Klein concluded that all of Mr. Oliveros's psychological symptoms and the psychological factors affecting physical condition (particularly cardiac problems) were due to job stresses, and that the 2002 accident was a temporary disruption in an already stressful situation.

The jury returned a verdict awarding Mr. Oliveros $61,000 for past and future noneconomic damages, but zero sums for past economic damages, the present value of future economic damages, and for Lynette Oliveros's loss of consortium claim.   The jury was polled with no indication the verdict was less than unanimous.   The judgment was entered on June 26, 2009.

Postjudgment Motion.   The day after the verdict was returned (May 5, 2009), juror Doreen Kasselder contacted the Oliveroses' attorney Patrick Roach about concerns that they did not receive a fair deliberation by the jury.   On July 6, the Oliveroses filed a motion for new trial or in the alternative an additur based upon claims of juror misconduct, legal impossibility to award $61,000 in noneconomic damages without also awarding economic damages, inadequate damage award when the economist's figures and past medical bills were uncontroverted, the verdict did not properly reflect the evidence, and substantial justice has not been done.   The motion was based upon a declaration from Ms. Kasselder, who alleged several incidences of misconduct during deliberations by the presiding juror (Brian Parsons) that he was biased, he introduced extrinsic evidence into the deliberations, and he bullied the jurors by not allowing them to vote or consider all of the evidence before entering an improper quotient verdict on his own.   Ms. Kasselder said she did not know what polling a jury meant.   No other juror affidavits were submitted by either side.

The trial court heard argument and entered an order denying the Oliveroses' motion.   The court reasoned in its oral opinion that the allegations of juror misconduct were either legally or factually insufficient to show misconduct, or inhered in the verdict.   The court observed that the jury could have rationally put zero on the special damages line when the plaintiffs' case emphasized the emotional outcome from the alleged brain injury that the jury rejected, and the plaintiffs did not attempt to allocate any specific amount of medical expenses for orthopedic type injuries.   The Oliveroses appeal, contending the trial court abused its discretion in denying their motion for new trial or additur.

ANALYSIS

We review a trial court's decision to deny a motion for a new trial for an abuse of discretion.  Sommer v. Dep't of Soc. & Health Servs., 104 Wn.App. 160, 170, 15 P.3d 664 (2001).   A trial court abuses its discretion when ruling on a motion for new trial when its decision is “manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.”  State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).

A trial court may grant a motion for an additur if it finds that “the damages awarded by a jury [are] so excessive or inadequate as unmistakably to indicate that the amount thereof must have been the result of passion or prejudice.”   RCW 4.76.030.   If the jury verdict is within the range of credible evidence, the trial court has no discretion to find that passion or prejudice affected the verdict for the purpose of ordering additur.  Robinson v. Safeway Stores, Inc., 113 Wn.2d 154, 161–62, 776 P.2d 676 (1989).

Juror Misconduct.   Included among the CR 59(a) grounds for granting a new trial are:

(1) Irregularity in the proceedings of the ․ jury ․ by which such party was prevented from having a fair trial;

(2) Misconduct of ․ jury;  and whenever any one or more of the jurors shall have been induced to assent to any general or special verdict or to a finding on any question or questions submitted to the jury by the court, other and different from his own conclusions, and arrived at by a resort to the determination of chance or lot, such misconduct may be proved by the affidavits of one or more of the jurors.

The abuse of discretion standard applies to the trial court's determination whether juror misconduct occurred and whether it affected the verdict.   Breckenridge v. Valley Gen. Hosp., 150 Wn.2d 197, 203, 75 P.3d 944 (2003).   When determining whether misconduct occurred, the trial court must consider whether the alleged conduct inheres in the verdict.  Gardner v. Malone, 60 Wn.2d 836, 841, 376 P.2d 651 (1962).   Only conduct that does not inhere in the verdict may be considered by the court.  Id. “Whether conduct inheres in the verdict is a question of law, reviewed de novo.”  Turner v. Stime, 153 Wn.App. 581, 589, 222 P.3d 1243 (2009) (citing Ayers v. Johnson & Johnson Baby Prods.   Co., 117 Wn.2d 747, 768, 818 P.2d 1337 (1991)).   A party is entitled to a new trial due to juror misconduct if there was “ ‘sufficient misconduct to establish a “reasonable doubt” that plaintiff was denied a fair trial.’ ”  Turner, 153 Wn.App. at 588 (quoting Gardner, 60 Wn.2d at 847).

Gardner states the rule for determining whether conduct inheres in the verdict:

“In considering the affidavits filed, we entirely discard those portions which may tend to impeach the verdict of the jurors, and consider only those facts stated in relation to misconduct of the juror, and which in no way inhere in the verdict itself.   It is not for the juror to say what effect the remarks may have had upon his verdict, but he may state facts, and from them the court will determine what was the probable effect upon the verdict.   It is for the court to say whether the remarks made by the juror in this case probably had a prejudicial effect upon the minds of the other jurors.”

Gardner, 60 Wn.2d at 840 (quoting State v. Parker, 25 Wash. 405, 415, 65 P. 776 (1901)).  Gardner also states other tests for determining whether conduct inheres in the verdict:

One test is whether the facts alleged are linked to the juror's motive, intent, or belief, or describe their effect upon him;  if so, the statements cannot be considered for they inhere in the verdict and impeach it.   If they do not, it then becomes a matter of law for the trial court to decide the effect the proved misconduct could have had upon the jury.   Another test is whether that to which the juror testifies can be rebutted by other testimony without probing a juror's mental processes.

Gardner, 60 Wn.2d at 841.

“ ‘The individual or collective thought processes leading to a verdict “inhere in the verdict” and cannot be used to impeach a jury verdict.’ ”   Breckenridge, 150 Wn.2d at 204–05 (quoting State v. Ng, 110 Wn.2d 32, 43, 750 P.2d 632 (1988)).  “[A] juror's postverdict statements regarding the way in which the jury reached its verdict cannot be used to support a motion for a new trial.”  Id. (citing Ng, 110 Wn.2d at 44).

The Oliveroses' Juror Misconduct Claims.   The Oliveroses claim several incidences of juror misconduct, which they contend individually or collectively require a new trial.

1. Bias of Presiding Juror.   According to Ms. Kasselder's declaration, the presiding juror, Mr. Parsons, stated during deliberations:

I sure don't want this to be a mistrial and some other jury [to] come in here and take 2 million dollars from Mr. Romm and award it to Mr. Oliveros.   That would just ruin an innocent guy (Romm) who made a mistake.   He (Romm) doesn't deserve to have his whole life ruined․  Mr. Romm made a mistake and ran a stop sign.   Should his life be taken away because he made a mistake?

CP at 57 (internal quotation marks omitted).   Ms. Kasselder further states that Mr. Parsons said during deliberations, “ ‘why did they bring in all of [Mr. Oliveros's] church people?  ․ [I]f he (Oliveros) was any sort of a church person, he would have forgiven Romm,” also stating that he felt “brow beaten by the church people that came in to testify.”   CP at 57 (internal quotation marks omitted).

Actual bias is defined in RCW 4.44.170(2):

[T]he existence of a state of mind on the part of the juror in reference to the action, or to either party, which satisfies the court that the challenged person cannot try the issue impartially and without prejudice to the substantial rights of the party challenging.

“ ‘The right to trial by jury includes the right to an unbiased and unprejudiced jury, and a trial by a jury, one or more of whose members is biased or prejudiced, is not a constitutional trial.’ ”  Turner, 153 Wn.App. at 587 (quoting Alexson v. Pierce County, 186 Wash. 188, 193, 57 P.2d 318 (1936)).

Here, the statements attributed to Mr. Parsons do not rise to the level of bias.   In essence, Mr. Parsons refers to the stipulated fact that Mr. Romm was at fault for running a stop sign and then merely expresses opinion or belief that Mr. Romm should not incur undue financial liability for the 2002 accident—an opinion that also finds ample support from the defense's medical expert testimony that Mr. Oliveros suffered no compensable injury from that accident.   Mr. Parsons's statements are individual thought processes and beliefs that inhere in the verdict.

The same is true for Mr. Parsons's statements regarding testimony of the several church members that Mr. Oliveros's church activities sharply declined after the 2002 accident.   Mr. Parsons did not state any anti-religion bias but merely expressed his observations and opinions about the cumulative effect of testimony he apparently found unpersuasive.   Mr. Parsons's statement that Mr. Oliveros should forgive Mr. Romm is also merely an opinion that inheres in the verdict and does not show bias.

2. Introducing Extrinsic Evidence/Acting as Expert Witness.   According to Ms. Kasselder's declaration, Mr. Parsons told the jury during deliberations that he worked at Fluor Hanford, that “ ‘he knew how the Hanford area worked, and whenever an incident happened, it was well documented.’ ”   CP at 57.   In addition, “[Mr. Parsons] virtually testified that Mr. Oliveros should have more documentation to prove every fact dealing with his employment at [Fluor] Hanford and intimated that his injury did not occur at work.”   CP at 57.

Ms. Kasselder further states that Mr. Parsons told the jury he is “ ‘a statistics man’ at his job,” and that “the ‘Economic Loss' testimony of Dr. Barnes was not even accurate.”   CP at 57.   He said he knew “because that is what he does all day long.”   CP at 57.   Ms. Kasselder states that Mr. Parsons was making himself an expert in the jury room.

Extrinsic evidence is “information that is outside all the evidence admitted at trial, either orally or by document.”  Richards v. Overlake Hosp. Med. Ctr., 59 Wn.App. 266, 270, 796 P.2d 737 (1990).   Juror use of extraneous evidence is misconduct and entitles a defendant to a new trial, if the defendant has been prejudiced.  State v. Briggs, 55 Wn.App. 44, 55, 776 P.2d 1347 (1989).  “This is an objective inquiry into whether the extraneous evidence could have affected the jury's determinations.”  Id. It is not a subjective inquiry into the actual effect of the evidence on the jury because the actual effect of the evidence inheres in the verdict.  Id. “Jurors may, however, rely on their personal life experience to evaluate the evidence presented at trial during the deliberations.”  Breckenridge, 150 Wn.2d at 199 n.3. “In determining whether a juror's comments constitute extrinsic evidence rather than personal life experience, courts examine whether the comments impart the kind of specialized knowledge that is provided by experts at trial.”  Id.

First, Mr. Parsons's statements about his personal knowledge of documentation requirements at Fluor Hanford are not extraneous evidence that could have impacted the jury's deliberations.   There was no dispute that the 2002 accident happened while Mr. Oliveros was on the job and that Mr. Romm was at fault.   Nor was there any dispute that HEHF evaluated Mr. Oliveros on the date of the 2002 accident and apparently documented no concern of a head injury when it cleared him to work that same day.   Moreover, the issue was causation of damages and nothing in Mr. Parsons's statements implicated Mr. Oliveros's agreed-reasonable medical bills or his claims based upon medical evidence that the 2002 accident caused his physical and psychological injuries.

The Oliveroses' new reply argument also unravels.   Nothing in Ms. Kasselder's declaration suggests that jurors had the impression Mr. Parsons was telling them Mr. Oliveros may already be receiving workers' compensation benefits.   The comments attributed to Mr. Parsons are cryptic and do not objectively appear to have prejudiced the verdict.   Moreover, the jurors were indeed instructed that they must not discuss or speculate whether any party has insurance or other coverage available, including workers' compensation.   Ms. Kasselder's declaration does not overcome the presumption that the jury followed that instruction.

The Oliveroses' cited case Halverson v. Anderson, 82 Wn.2d 746, 513 P.2d 827 (1973), which they find directly on point, is not controlling.   In Halverson, a juror introduced extrinsic evidence about the income an airline pilot and a surveyor would earn.  Id. at 747.   The jurors used this information to estimate the plaintiff's future lost wages.   Because there was no evidence introduced at trial on this issue, the court held that the jury's consideration of it was misconduct.  Id. at 752.   Here, in contrast, the comments attributed to Mr. Parsons do not rise to the level of substantive evidence that could have influenced the verdict.

Next, Mr. Parsons calling himself a “statistics man” and disagreeing with the accuracy of Dr. Barnes's testimony reflects use of life experience, albeit apparently gained from work, to evaluate the evidence and express an opinion that he disagreed with some or all of Dr. Barnes's conclusions.   His statements can be seen as an appropriate determination that none of Dr. Barnes's conclusions accurately reflect economic loss without causative support as pertains to the 2002 accident.   Critically, Ms. Kasselder makes no allegation that Mr. Parsons introduced any specific outside fact to substantively rebut the evidence, or that he otherwise gave any particular expert explanation of the economic evidence.   Ms. Kasselder's statements are merely conclusory.   This is in contrast to cases cited by Mr. Romm where jurors did introduce new facts.   See Lockwood v. A C & S, Inc., 109 Wn.2d 235, 265, 744 P.2d 605 (1987) (juror investigated defendants on stock exchange and then told other jurors those defendants could afford to pay damages);  Loeffelholz v. Citizens for Leaders with Ethics and Accountability Now, 119 Wn.App. 665, 679, 82 P.3d 1199 (2004) (juror introduced evidence regarding salary that was not introduced at trial).

The fact that Dr. Barnes's testimony was uncontroverted is immaterial.   The defense elected not to use an expert to controvert the economic testimony, but instead attempted to render it irrelevant in the eyes of the jury by showing that the 2002 accident did not cause the Oliveroses any injury or economic loss.   Per the court's instruction, the jury could accept or reject the testimony of any expert.   Mr. Parsons injected nothing extraneous into that deliberation.

We agree that Mr. Parsons's statements that he disagreed with Dr. Barnes's testimony are also individual thought processes that inhere in the verdict.

3. Jury's Failure to Consider Trial Evidence.   Ms. Kasselder states in her declaration that the jurors were not allowed to discuss the expert witness testimony, and that they did not review all of the evidence.   She further states they were not allowed to go around the table and talk about the various pieces of evidence.

As earlier stated, juror affidavits may not be used to contest the thought processes involved in reaching a verdict.  Ayers, 117 Wn.2d at 768.  “The individual or collective thought processes leading to a verdict ‘inhere in the verdict’ and cannot be used to impeach a jury verdict.”  Richards, 59 Wn.App. at 272 (quoting Ng, 110 Wn.2d at 43).   These thought processes include juror motives, the effect the evidence had on the jurors, the weight given to the evidence by particular jurors, and the jurors' intentions and beliefs.  Ayers, 117 Wn.2d at 768–69 (quoting Cox v. Charles Wright Academy, Inc., 70 Wn.2d 173, 179–80, 422 P.2d 515 (1967)).   Any averments concerning these mental processes are inadmissible to impeach the verdict.   Ayers, 117 Wn.2d at 768–69 (quoting Cox, 70 Wn.2d at 180).   Thus, evidence that jurors failed to follow the court's instructions inheres in the verdict and may not be considered.  Ayers, 117 Wn.2d at 769;  see also Chiappetta v. Bahr, 111 Wn.App. 536, 541, 46 P.3d 797 (2002).

On the other hand, as stated in the Oliveroses' cited case Nichols, “[w]here a verdict indicates that a jury disregarded the court's instructions, a new trial is proper.”  Nichols v. Lackie, 58 Wn.App. 904, 907, 795 P.2d 722 (1990) (jury disregarded stipulation for undisputed past economic damages after finding defendant's negligence proximately caused the plaintiff's injuries).   The Oliveroses also cite to Cyrus v. Martin, 64 Wn.2d 810, 812, 394 P.2d 369 (1964) (court upheld trial court's decision to grant new trial when jury's general damage award for personal injury indicated it must have ignored uncontroverted evidence to support additional special damages award for lost earnings);  and Palmer v. Jensen, 132 Wn.2d 193, 937 P.2d 597 (1997) (award of special damages without an award of general damages is jury misconduct requiring new trial to redetermine plaintiff's damage award).

First, the Oliveroses' contention that Mr. Romm stipulated to an award of the $28,912 for medical expenses is without merit.   Unlike in Nichols, Mr. Romm only stipulated to that amount being reasonable and that a summary of those expenses could go to the jury as an exhibit.   Any award of those reasonable medical expenses still depended upon the jury determining that the 2002 accident was the cause of the expenses.   As the court observed when it denied the Oliveroses' motion for new trial, the evidence did indicate Mr. Oliveros sustained some physical injury in the 2002 accident, but at trial he made no attempt to distinguish between medical expenses for physical injuries versus alleged psychological injuries.   As a result, if the jury believed Mr. Oliveros sustained some minimal physical injury in the accident but disbelieved his claim of traumatic brain injury, the jury would not have had the tools to determine the amount of past medical expenses to award.   This was the trial strategy chosen by the Oliveroses.   Moreover, it was within the evidence for the jury to award zero amounts for past or future medical expenses based upon Dr. Wray's testimony that Mr. Oliveros's minimal physical injuries sustained in the 2002 accident would have resolved without any need for medical treatment.

With regard to claimed economic damages, the defense's evidence showed that Mr. Oliveros did not sustain any psychological injury or brain injury in the 2002 accident, and that he continued working in the same job from the date of that accident until he retired after the 2005 accident.   Unlike in Cyrus, the jury could then determine he did not sustain a brain injury in the 2002 accident, and that no income loss was tied to that accident.   Without proof of causation, the economic testimony of Dr. Barnes became irrelevant and the jury was entitled to reject it.

The Oliveroses' contention that the jury failed to properly fill out the verdict form is also without merit.   The jury awarded $61,000 in past and future noneconomic damages.   It inserted the number “0” on each of the other lines of the verdict form and thus awarded no special damages.   CP at 64.   Since this is the opposite of what occurred in Palmer, that case is not helpful to the Oliveroses.   As discussed, the jury was entitled to reject Dr. Barnes's economic loss testimony if it found no causation and apparently did so as shown by the zero number placed on the past and future economic damages lines.   Similarly, if the jury disbelieved Mr. Oliveros's brain injury claim and did not find that his psychological problems were caused by the 2002 accident, then the award of zero dollars for Ms. Oliveros's loss of consortium would follow.

In this situation, the evidence from Ms. Kasselder's declaration that the jury did not fully discuss the trial evidence and thereby violated the court's instructions inheres in the verdict and is not further considered.

4. Quotient Verdict.   According to Ms. Kasselder's declaration,

[Mr. Parsons stated,] “Let's just go around the table and give an amount and then I can arrange it”.

․

․ [Mr. Parsons] asked each juror to write down a number and then he used the calculator to add the numbers and divided by 12.   That is how the verdict of $61,000 was arrived at.

․ None of the jurors oversaw [Mr. Parsons's] calculations.

․ [Mr. Parsons] alone decided which line on the jury form to place the $61,000 number.   He alone decided that the $61,000 figure represented “For present value of future economic loss”, and for not [sic] any of the other categories of damages.

CP at 57.

A quotient verdict arrived at by lot or chance is juror misconduct that warrants a new trial.   But when jurors have not agreed in advance to abide by the result of the calculations, it is not subject to the objection that it was arrived at by lot or chance.  Sorenson v. Raymark Indus., Inc., 51 Wn.App. 954, 959, 756 P.2d 740 (1988) (quoting Sears v. Int'l Bhd. Of Teamsters, Local 524, 8 Wn.2d 447, 456–57, 112 P.2d 850 (1941)).   Such is the case here.   Ms. Kasselder's declaration does not state that the jurors agreed in advance to render a quotient verdict.   Thus, no misconduct is shown and the way the verdict was arrived at is then not impeachable.   The process by which the verdict was reached inheres in the verdict.³  Richards, 59 Wn.App. at 272.

The Oliveroses show no juror misconduct warranting a new trial.

Inadequate Verdict.  CR 59(a) allows the trial court to grant a new trial for the following reasons:

(5) Damages so excessive or inadequate as unmistakably to indicate that the verdict must have been the result of passion or prejudice;

․

(7) That there is no evidence or reasonable inference from the evidence to justify the verdict or the decision, or that it is contrary to law;

․

(9) That substantial justice has not been done.

The testimony of Dr. Wray and Dr. Klein, if accepted by the jury, established that Mr. Oliveros's claimed injuries and economic loss were not caused by the 2002 accident.   The jury heard testimony that there was no objective evidence of injury in the initial weeks and months after the 2002 accident, that all of the imaging studies were normal, that Mr. Oliveros continued to work not only on the day of the 2002 accident but in the same job until March 2005, that there were no physical findings to support or explain his continuing complaints, that his job was likely to end regardless of the accident, that he suffered from anxiety and other psychological problems unrelated to the 2002 accident, and that he did not sustain any injury in the 2002 accident that required medical treatment or caused him to be disabled.   Additionally, the evidence showed that he struck his head in the 2005 accident and did not quit working until after that accident.

Viewing the evidence in the light most favorable to the nonmoving party, Mr. Romm, as we must, the verdict is supported by substantial evidence.   The jury apparently believed the defense's medical testimony over that of Mr. Oliveros and his medical experts.   The jury apparently did not believe Mr. Oliveros required any medical treatment as a result of the 2002 accident, disbelieved his permanent disability claim, and thus awarded no past or future economic damages.   It was the jury's sole province to determine the weight and credibility of witnesses.  Morse v. Antonellis, 149 Wn.2d 572, 574, 70 P.3d 125 (2003);  Herriman v. May, 142 Wn.App. 226, 232, 174 P.3d 156 (2007) (inconsistencies in evidence are matters affecting weight and credibility and are within the exclusive province of the jury).

The trial court then had no discretion to disturb the $61,000 verdict for general damages, perhaps awarded as compensation for Mr. Oliveros's reaction to the 2002 accident characterized by Dr. Klein as causing a temporary increase in anxiety and difficulties coping with work stress and conflict.  Herriman, 142 Wn.App. at 232.

Since the damage award was not so “inadequate as unmistakably to indicate that the amount thereof must have been the result of passion or prejudice” and was within the range of credible evidence, the trial court did not abuse its discretion in denying the Oliveroses's alternative motion for additur.   Robinson, 113 Wn.2d at 161–62 (quoting RCW 4.76.030).

Finally, the trial court rejected the notion that the verdict did not do substantial justice.   The judge commented that the jury awarded about twice what he expected and that he did not expect the jury to agree with Mr. Oliveros's brain injury claim.   No injustice is evident in the record.

The trial court did not abuse its discretion in denying the motion for new trial or additur.   Therefore, we affirm the verdict.

A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.

_

Kulik, C.J.

WE CONCUR:

_ _

Sweeney, J. Korsmo, J.

FOOTNOTES

FN1. Magnetic resonance imaging..  FN1. Magnetic resonance imaging.

FN2. Electroencephalogram..  FN2. Electroencephalogram.

FN3. The $61,000 verdict perhaps appears as a compromise verdict that is not impeachable.   See Poston v. Mathers, 77 Wn.2d 329, 343, 462 P.2d 222 (1969) (“Juries are allowed to reach results which are not entirely in accord with the niceties of negligence theory.”)..  FN3. The $61,000 verdict perhaps appears as a compromise verdict that is not impeachable.   See Poston v. Mathers, 77 Wn.2d 329, 343, 462 P.2d 222 (1969) (“Juries are allowed to reach results which are not entirely in accord with the niceties of negligence theory.”).

Kulik, C.J. FACTS On August 12, 2002, David Romm ran a stop sign in his company truck and collided with Lou Oliveros's vehicle.   Mr. Oliveros worked for Fluor Hanford as a document expediter/delivery person and was on the job at the time of the accident.   He did not go to the hospital, but went from the accident scene to Fluor's on-site medical provider, the Hanford Environmental Health Foundation (HEHF).   He was examined, released back to work, and made additional deliveries that day.   He continued in his Fluor expediter position without missing any workdays prior to a second on-the-job vehicle accident on February 24, 2005.   In that accident, he crashed into a cement slab and bumped his head on the steering wheel.   He was transported to the hospital by ambulance, but did not seek further medical treatment.   During the time between the 2002 and 2005 accidents, he received medical treatment for depression, anxiety, rapid heartbeat, and side effects from several prescribed medications.   He took early retirement and disability from Fluor in March 2005, shortly after the second accident.   On March 8, 2005, the Oliveroses sued Mr. Romm and his business, Romm Construction, Inc., for alleged personal injury and damages sustained as a result of the 2002 accident.   They sought damages for physical disability and pain, emotional trauma, medical expenses, loss of earnings and earning capacity, and other damages.   Mr. Romm admitted fault for the accident but disputed that the claimed injuries and damages resulted from the accident.   Trial.  Mr. Romm stipulated that the amount of Mr. Oliveros's claimed medical expenses—$28,912—was reasonable, but still disputed whether those expenses were attributable to the 2002 accident.   Expert medical testimony at trial sharply conflicted as to whether Mr. Oliveros suffered a brain injury or any other significant injury or financial loss attributable to the 2002 accident.   Plaintiff's Evidence.   Mr. Oliveros testified that he suffered a closed head injury in the 2002 accident that caused him memory loss and negatively impacted his ability to do his job.   He also claimed severe depression, anxiety and panic attacks, and side effects from psychotropic medication, including sexual dysfunction.   He testified to a loss of interest in activities and enjoyment of life, including active church participation.   He said he had none of these symptoms or difficulties prior to the 2002 accident.   He and his wife each testified to significant loss of marital consortium that they attributed to the 2002 accident.   Mr. Oliveros denied that the 2005 accident caused or impacted any of his symptoms or alleged disability.