Bunch v. King County Department of Youth Services, 116 P.3d 381, 155 Wash.2d 165 (Wash. 07/21/2005)

[1] In the Supreme Court of the State of Washington


[2] No. 75103-0


[3] 116 P.3d 381, 155 Wash.2d 165, 2005.WA


[4] July 21, 2005


[5] RALPH DWIGHT BUNCH, RESPONDENT AND CROSS-PETITIONER, JEFFREY MORPHIS AND DWIGHT PRESTON, PLAINTIFFS,
v.
KING COUNTY DEPARTMENT OF YOUTH SERVICES, PETITIONER AND CROSS-RESPONDENT.


[6] Counsel for Petitioner(s) Regina Cahan King Co Admin Bldg 500 4th Ave Ste 900 Seattle, WA 98104-2316


[7] Howard Mark Goodfriend Edwards Sieh Smith & Goodfriend PS 1109 1st Ave Ste 500 Seattle, WA 98101-2988


[8] Susan Nathalie Slonecker King Co Admin Bldg 500 4th Ave Ste 900 Seattle, WA 98104-2316


[9] Catherine Wright Smith Edwards Sieh Smith & Goodfriend PS 1109 1st Ave Ste 500 Seattle, WA 98101-2988


[10] Counsel for Respondent(s) Mary Ruth Mann Mann & Kytle 615 2nd Ave Ste 760 Seattle, WA 98104-2200


[11] Kenneth Wendell Masters Attorney at Law 241 Madison Ave N Bainbridge Island, WA 98110-1811


[12] Jerry Robert McNaul Mcnaul Ebel Nawrot Et Al 600 University St Ste 2700 Seattle, WA 98101-3143


[13] Charles Kenneth Wiggins Attorney at Law 241 Madison Ave N Bainbridge Island, WA 98110-1811


[14] Amicus Curiae on behalf of Washington Defense Trial Lawyers Linda Blohm Clapham Lane Powell PC 1420 5th Ave Ste 4100 Seattle, WA 98101-2338


[15] Stewart Andrew Estes Keating Bucklin & McCormack 800 5th Ave Ste 4141 Seattle, WA 98104-3175


[16] Michael Barr King Lane Powell PC 1420 5th Ave Ste 4100 Seattle, WA 98101-2338


[17] John Benjamin Kerr Schochet Lane Powell PC 1420 5th Ave Ste 4100 Seattle, WA 98101-2375


[18] Amicus Curiae on behalf of Washington Employment Lawyers Association Richard D Reed Attorney at Law 1218 3rd Ave Ste 1500 Seattle, WA 98101-3021


[19] Patricia Sue Rose Attorney at Law 157 Yesler Way Ste 503 Seattle, WA 98104-3495


[20] Amicus Curiae on behalf of Washington State Trial Lawyers Assoc Foundation Bryan Patrick Harnetiaux Attorney at Law 517 E 17th Ave Spokane, WA 99203-2210


[21] Debra Leigh Williams Stephens Attorney at Law 6210 E Lincoln Ln Spokane, WA 99217-9332


[22] The opinion of the court was delivered by: Sanders, J.


[23] Concurring: James Johnson, Barbara A. Madsen, Bobbe J Bridge, Charles W. Johnson, Gerry L Alexander, Susan Owens, Tom Chambers, Mary Fairhurst


[24] En Banc


[25] Ralph Bunch sued King County Department of Youth Services for racial employment discrimination, obtaining over $600,000 in a jury award. The Court of Appeals affirmed but reduced the non-economic portion of the damages from $260,000 to $25,000, an award which Bunch could accept or opt for a new trial on the damages issue alone. The county petitioned this court for review of the limitation of a new trial to damages only, which we denied. However, Bunch cross-petitioned, challenging the Court of Appeals' remittitur. We granted review and now hold the Court of Appeals improperly granted the remittitur.


[26] FACTS AND PROCEDURAL HISTORY


[27] Ralph Bunch is an African-American, who served in the Navy before working as a prison guard at the Monroe reformatory from 1979-91. In 1991 he switched to the Department of Youth Services in juvenile detention. His supervisor, colleagues, and the director of the department all praised Bunch's performance with the inmates.


[28] Despite good reviews, one fellow detention officer testified that management viewed Bunch as a problem: 'Mr. Bunch was thought of as a problem because he spoke out against things that he felt were wrong.' Report of Proceedings (RP) at 1396. In 1995 and again in 1998 Bunch testified against the county in employment discrimination trials and later noticed increased disciplinary action by the management.


[29] Bunch was disciplined for a variety of minor offenses. In May 1995 he was suspended for five days for allegedly swearing at a youth during a heated exchange between several inmates. Another staff member heard the exchange and denied hearing Bunch swear. Bunch was also suspended for not reporting the sexual abuse of an inmate. Bunch believed the incident had already been reported. He was suspended for 10 days for driving away from the facility during his lunch break, an action that Bunch routinely observed others doing without punishment. Youth Services Director Bob Williams noted this punishment was the severest he had observed, and he was unaware of any white person being punished for leaving the facility. He reduced the total days of Bunch's suspensions based on the progress he saw in Bunch.


[30] Bunch was later reprimanded for using a wrist lock on an inmate, a move he had used before and had never been told was forbidden. He was suspended for five days for giving a letter of recommendation directly to an inmate. Another staff member testified to writing and delivering similar letters without any reprimand. Bunch was reprimanded for violating the 'level system,'*fn1 and for horseplay with an inmate, which was common. Bunch believes he was the only person to be disciplined for violating the level system, and other testimony confirms this suspicion. A number of other employees also testified of racial discrimination at the department, including disparate discipline for violations.


[31] Bunch sued the department for employment discrimination in 1999 under Washington's Law Against Discrimination, chapter 49.60 RCW.*fn2 In April 2001 management decided to terminate Bunch's employment based on the testimony of several inmates that Bunch showed them an R-rated video on January 1, 2001. The inmates took polygraph tests with varying results. Bunch denied showing that or any other video.


[32] Bunch now works elsewhere as a security guard, making less than he did at the county. He described the effect on his family as a 'phenomenal . . . crushing blow financially.' Report of Proceedings (RP) at 1182. He had to explain the termination to his wife and three children. Bunch also testified his time at the county was 'pretty horrendous. Uh, pretty, uh--that type of harassment, it's, uh--it's bad. Overwhelming.' RP at 1180. 'It definitely had an effect on my personal life at home. It, uhm, . . . depression, you know, on my part. And, uh--but I'm a survivor.' Id. He was concerned about getting another good job because of his record. RP at 1184. When asked if he was angry about the incident, he said: 'Sure, I get angry, but, you know, you have to be in control of yourself. I try to be in control all the time of myself. Of course I'm angry.' Id.


[33] A jury found the county discriminated and retaliated against Bunch, and awarded him $3,500 in lost past wages and fringe benefits, $340,000 in lost future wages, and $260,000 in non-economic damages. The county moved for a reduction in the non-economic damages or a new trial. The trial court denied the motion. The court also awarded Bunch attorney fees of $166,754.50 and costs of $10,126. The county appealed.


[34] The Court of Appeals affirmed in part and reversed in part. Bunch v. King County Dep't of Youth Servs., noted at 119 Wn. App. 1034 (2003). The court reversed the trial court's denial of remittitur and reduced the non-economic damages from $260,000 to $25,000. The court determined the evidence was insufficient to support the award, it was motivated by passion and prejudice, and it shocked the court's conscience. On Bunch's motion, the court amended its opinion to allow Bunch the option of choosing a new trial on damages alone.


[35] The county petitioned this court for review of the Court of Appeals' limitation of a new trial to damages alone, but we denied that petition. Bunch cross-petitioned to challenge the Court of Appeal's remittitur. We granted that petition by order dated January 4, 2005. We deferred Bunch's request for attorney fees under RAP 18.1(j) pending the outcome of the case.*fn3


[36] ISSUES


[37] I. What is the appropriate level of deference an appellate court should afford to the trial court when deciding remittitur issues?


[38] II. Whether the Court of Appeals properly reduced the jury's award of non-economic damages from $260,000 to $25,000 because it thought the award unsupported by evidence, the result of passion and prejudice, and shocking to its conscience?


[39] ANALYSIS


[40] Appellate courts unquestionably have the authority to reduce jury damages awards. Appellate remittitur was part of the common law in 1889 when the Washington Constitution was ratified. In 1889 the United States Supreme Court affirmed an appellate court's authority to grant remittiturs: '{The appellate court is} at liberty, in disposing of the motion for a new trial according to its view of the evidence, either to deny or to grant a new trial generally, or to order judgment for a less sum than the amount of the verdict, conditional upon a remittitur by the plaintiff.' Kennon v. Gilmer, 131 U.S. 22, 30, 9 S. Ct. 696, 33 L. Ed. 110 (1889); see also Ark. Valley Land & Cattle Co. v. Mann, 130 U.S. 69, 73-74, 9 S. Ct. 458, 32 L. Ed. 854 (1889). Since we interpret the right to a jury trial in our constitution 'as it existed at the time of the Constitution's adoption in 1889,' Nielson v. Spanaway General Medical Clinic, Inc., 135 Wn.2d 255, 266, 956 P.2d 312 (1998) (interpreting Const. art. I, sec. 21), it follows that an appellate court's common law authority to remit jury awards is consistent with the constitutional right to a jury trial. We have recently upheld this power. See Wash. State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122 Wn.2d 299, 330, 858 P.2d 1054 (1993). Since appellate courts unquestionably have the authority to remit a jury award, the question then becomes what level of deference they should grant to the trial court, who first decides whether to grant or deny a motion for remittitur.*fn4


[41] I. Appellate Courts Review Trial Court Decisions to Deny Remittiturs for Abuse of Discretion


[42] Bunch argues our remittitur jurisprudence has evolved through three stages. In the early pre-1933 stage, courts gave little deference to juries' awards. No statute granted courts the authority to grant a remittitur, but they exercised it as part of their inherent power. See Anderson v. Dalton, 40 Wn.2d 894, 898-99, 246 P.2d 853 (1952).*fn5 Bunch cites Kohler v. Fairhaven & New Whatcom Railway Co., 8 Wash. 452, 36 P. 253 (1894), to support his contention that early appellate courts reviewed trial courts' decisions on remittiturs for abuse of discretion. Kohler states the decision to grant a new trial because a jury's damages award is excessive is within the discretion of the trial judge. 8 Wash. at 453. Appellate courts then apply an abuse of discretion standard. Id. Chief Justice Dunbar dissented:


[43] I dissent. The plaintiff has a constitutional right to have the questions of fact involved in his case submitted to the discretion of a jury. The amount of damages which he sustained is as purely a question of fact as any question in the case. I do not deny the right of the court to set aside a verdict when it plainly appears that the verdict was the result of passion or prejudice ; but I do most earnestly protest against the court substituting its judgment for the judgment of the jury ; and basing its conclusion that the jury was controlled by passion or prejudice on the simple fact that the verdict rendered by the jury was a larger verdict than the court would have rendered if the question had been originally submitted to its discretion. Such an assumption by the courts virtually annuls the right of trial by jury. Practically the question of damages may as well be submitted to the court in the first instance.


[44] Id. at 455 (Dunbar, C.J., dissenting).


[45] Bunch then argues we turned away from the abuse of discretion standard and freely remitted juries' awards of damages. Cases from the early twentieth century show this court remitting damages awards without mentioning the trial court's discretion. See, e.g., O'Brien v. Griffiths & Sprague Stevedoring Co., 116 Wash. 302, 306, 199 P. 291 (1921); Guignon v. Campbell, 80 Wash. 543, 546, 141 P. 1031 (1914); Thoresen v. St. Paul & Tacoma Lumber Co., 73 Wash. 99, 108, 131 P. 645 (1913); Nelson v. Bromley, 55 Wash. 256, 258, 104 P. 251 (1909).


[46] Bunch says the second stage began in 1933 when the legislature enacted a statute allowing for remittiturs. Laws of 1933, ch. 138, sec. 2 (codified at RCW 4.76.030). This statute grants trial courts the authority to grant a new trial or a remittitur if the judge finds the award so excessive 'as unmistakably to indicate that the amount thereof must have been the result of passion or prejudice.' Id. On appeal, the appellate court reviews the trial court's action de novo and applies a strong presumption in favor of the jury's award. Id. The appellate court may uphold the remittitur if it finds 'the damages awarded in such verdict by the jury were so excessive . . . as unmistakably to indicate that the amount of the verdict must have been the result of passion or prejudice.' Id. The same standard applies to both trial and appellate courts, and the appellate court does not defer to the trial court.


[47] Bunch claims the statute curbed the number of remittiturs granted by appellate courts. While this may be true, Bunch's tidy categories are perhaps a little more fluid. In Zorich v. Billingsley, 55 Wn.2d 865, 869, 350 P.2d 1010 (1960), we remitted the jury's award of damages without mentioning the trial court's discretion. Likewise, in Malstrom v. Kalland, 62 Wn.2d 732, 738-39, 384 P.2d 613 (1963), we remitted a trial judge's award of damages because the facts did not support it.


[48] The third phase, Bunch argues, is based on an understanding of the jury's constitutional role in finding questions of fact. In 1967 we emphasized the jury's role in determining damages: 'Regardless of the court's assessment of the damages, it may not, after a fair trial, substitute its conclusions for that of the jury on the amount of damages. When the evidence concerning injuries is conflicting, the jury decides whether the injuries are insignificant, minor, moderate, or serious, and it determines the amount of damages.' Cox v. Charles Wright Academy, Inc., 70 Wn.2d 173, 176, 422 P.2d 515 (1967) (citation omitted). Later cases have affirmed this principle. See, e.g., James v. Robeck, 79 Wn.2d 864, 869, 490 P.2d 878 (1971) ('To the jury is consigned under the constitution the ultimate power to weigh the evidence and determine the facts--and the amount of damages in a particular case is an ultimate fact.').


[49] Based on this view of our jurisprudence, Bunch argues for a bifurcated standard of review. If the damages award is remitted under RCW 4.76.030, the appellate court reviews the remittitur de novo as the statute explicitly provides. But if the trial court exercises its inherent power to remit the damages, then an appellate court reviews for abuse of discretion. Recent case law supports this type of analysis:


[50] The appellate court does not engage in exactly the same review as the trial court because deference and weight are also given to the trial court's discretion in denying a new trial on a claim of excessive damages. The verdict is strengthened by denial of a new trial by the trial court. While either the trial court or an appellate court has the power to reduce an award or order a new trial based on excessive damages, 'appellate review is most narrow and restrained' and the appellate court 'rarely exercises this power.'


[51] Fisons Corp., 122 Wn.2d at 330 (footnotes omitted) (quoting Washburn v. Beatt Equip. Co., 120 Wn.2d 246, 269, 840 P.2d 860 (1992)); see also Bingaman v. Grays Harbor Cmty. Hosp., 103 Wn.2d 831, 835-36, 699 P.2d 1230 (1985).


[52] Bingaman clearly stated the rule for appellate remittiturs: 'An appellate court will not disturb an award of damages made by a jury unless it is outside the range of substantial evidence in the record, or shocks the conscience of the court, or appears to have been arrived at as the result of passion or prejudice.' 103 Wn.2d at 835. This rule has not changed. See, e.g., Stevens v. Gordon, 118 Wn. App. 43, 54, 74 P.3d 653 (2003). This specific language does not mention any deference to the trial court and may suggest de novo review. However, in Bingaman, Washburn, and Fisons Corp., we placed the rule within the broader discussion of the trial court's discretion and noted appellate courts should rarely exercise the power since the constitution gives to the jury the duty to find the facts. Thus, abuse of discretion is the appropriate standard of review.


[53] The above discussion demonstrates the need for further refinement. The statute mandates de novo review; our case law requires abuse of discretion review. Bunch reconciles these approaches historically and with a distinction between remittiturs granted under the statute and those granted under the court's inherent power. The historical approach of three distinct stages is not entirely convincing since this court has not hesitated to remit damages when it thought the award excessive. See Billingsley, 55 Wn.2d 865. Further, the 1933 statute recognized a strong presumption in favor of the jury's verdict, presumably based on the jury's constitutional role. Likewise, the distinction between statutory and court-based remittiturs is not satisfactory because the standards overlap and courts do not always indicate which standard they are applying. Further, there does not seem to be a solid reason for Bunch's suggested distinction. Under that rule trial courts would probably choose to exercise their inherent power with its greater deference to avoid reversals, rendering the statute superfluous. This makes little sense.


[54] A more satisfying approach is to draw the line between situations in which the trial court remits the award and situations in which the trial court does not. The statutory standard of review (de novo) applies only when the trial court actually remits an award. RCW 4.76.030; see also Ma v. Russell, 71 Wn.2d 657, 430 P.2d 518 (1967) (applying the statute's de novo standard). When the trial court remits an award it invades the constitutional province of the jury, making the less deferential standard of review appropriate. When the trial court refuses to remit the award, then our case law says the verdict is strengthened and the discretion of the trial court should be respected. An appellate court should review the verdict using the usual rule set forth in Bingaman, while respecting the trial court's discretion in denying a remittitur.


[55] Thus, we hold that a trial court order remitting a jury's award of damages is reviewed de novo since it substitutes the court's finding on a question of fact. Trial court orders denying a remittitur are reviewed for abuse of discretion using the substantial evidence, shocks the conscience, and passion and prejudice standard articulated in precedent. This rule harmonizes the statute, our case law, and the jury's constitutional role.*fn6 An older Court of Appeals opinion notes the confusion swirling around the standard of review analysis, but it persuasively concludes with the same rule outlined above. See Hendrickson v. Konopaski, 14 Wn. App. 390, 541 P.2d 1001 (1975). The case merits a lengthy quote:


[56] We find it impossible to reconcile all the decisions and statements of the Supreme Court pertaining to an abuse of discretion standard of review on the one hand and de novo review on the other. It appears to us, however, that where a trial court has proceeded under RCW 4.76.030, and has either reduced or increased a verdict, de novo review of the evidence becomes the standard of appellate review and the trial court has no discretion where the verdict is 'within the range' of the credible evidence. But, where the trial court has simply granted a new trial under the authority of CR 59(a)(5) on grounds of an excessive or inadequate verdict, an abuse of discretion standard of appellate review is used in recognition of some discretion in the trial court.


[57] This distinction is perhaps proper because both a remittitur and additur involve a greater invasion of the jury realm than does the simple grant of a new trial. We also suggest that RCW 4.76.030 creates a presumption favoring a jury verdict and mentions de novo review by the appellate court under certain circumstances. In contradistinction, CR 59 speaks more in language of discretion than does the statute. Whatever the real merit of this distinction, it is clear the function of the appellate court has been similar whether the statute or the court rule has been used as the basis of the trial court's decision. In both types of cases the appellate courts have reviewed the evidence to determine whether sufficient credible evidence existed, whether or not conflicting or disputed, which would factually support a verdict of the size rendered.


[58] Id. at 394-95 (citations omitted). The court is right to note that much of the haggling over the proper standard of review when the trial court grants a new trial or a remittitur is semantics. See supra note 5. The substance of the review for substantial evidence remains the same. This case does not require us to sort out the conflicting authority, however, since the trial court denied the remittitur and the standard for that situation is much clearer. An abuse of discretion standard is appropriate where, as here, the trial court refused remittitur.*fn7


[59] II. Under an Abuse of Discretion Standard, the Court of Appeals Improperly Remitted Bunch's Damages


[60] 'An appellate court will not disturb an award of damages made by a jury unless it is outside the range of substantial evidence in the record, or shocks the conscience of the court, or appears to have been arrived at as the result of passion or prejudice.' Bingaman, 103 Wn.2d at 835. 'The requirement of substantial evidence necessitates that the evidence be such that it would convince 'an unprejudiced, thinking mind.' Indus. Indem. Co. of N.W., Inc. v. Kallevig, 114 Wn.2d 907, 916, 792 P.2d 520 (1990) (quoting Hojem v. Kelly, 93 Wn.2d 143, 145, 606 P.2d 275 (1980)). The 'shocks the conscience' test asks if the award is 'flagrantly outrageous and extravagant.' Bingaman, 103 Wn.2d at 836-37. Passion and prejudice must be 'unmistakable' before they affect the jury's award. RCW 4.76.030; Bingaman, 103 Wn.2d at 836. We once stated the rule this way:


[61] 'The damages, therefore, must be so excessive as to strike mankind, at first blush, as being, beyond all measure, unreasonable and outrageous, and such as manifestly show the jury to have been actuated by passion, partiality, prejudice, or corruption. In short, the damages must be flagrantly outrageous and extravagant, or the court cannot undertake to draw the line; for they have no standard by which to ascertain the excess.'


[62] Kramer v. Portland-Seattle Auto Freight, Inc., 43 Wn.2d 386, 395, 261 P.2d 692 (1953) (quoting Coleman v. Southwick, 9 Johns. 45, 6 Am. Dec. 253 (N.Y. Sup. 1812) (Kent, Ch. J.)).


[63] The jury is given the constitutional role to determine questions of fact, and the amount of damages is a question of fact. Robeck, 79 Wn.2d at 869. We strongly presume the jury's verdict is correct. Sofie v. Fibreboard Corp., 112 Wn.2d 636, 654, 771 P.2d 711, 780 P.2d 260 (1989). 'The jury's role in determining non-economic damages is perhaps even more essential.' Id. at 646. A trial court's denial of a remittitur strengthens the verdict, Fisons Corp., 122 Wn.2d at 330, and, as determined above, we review for abuse of discretion.


[64] Bunch argues the 'range of substantial evidence' standard is meaningless in the context of non-economic damages. While non-economic damages especially are within a properly instructed jury's discretion, Bingaman, 103 Wn.2d at 835,*fn8 there must be evidence upon which the award is based: 'The plaintiff, once having proved discrimination, is only required to offer proof of actual anguish or emotional distress in order to have those damages included in recoverable costs pursuant to RCW 49.60.' Dean v. Municipality of Metro. Seattle-Metro, 104 Wn.2d 627, 641, 708 P.2d 393 (1985). The distress need not be severe. Nord v. Shoreline Sav. Ass'n, 116 Wn.2d 477, 485, 805 P.2d 800 (1991). The Court of Appeals has applied this standard in the context of employment discrimination. See Herring v. Dep't of Soc. & Health Servs., 81 Wn. App. 1, 25, 914 P.2d 67 (1996).


[65] The evidence of emotional distress is limited, but it is sufficient to support an award of non-economic damages. Bunch testified that he was overwhelmed by the discrimination, and that he was depressed and angry. The county discriminated against him over a six year period, which is substantial. The record contains the numerous instances in which he was disciplined for petty offenses that others committed with impunity. He now works for significantly less pay with minimal benefits. He had to explain to his family why he was fired. All of these facts provide a basis from which the jury could infer emotional distress.


[66] The county argues that Bunch never consulted a healthcare professional, and no one close to him testified about his anxiety. That is true, but such evidence is not strictly required; our cases require evidence of anguish and distress, and this can be provided by the plaintiff's own testimony. See Nord, 116 Wn.2d at 487 (each plaintiff testified about his anger and shock at the defendant's actions, and this testimony in conjunction with the other facts of the case supported an award for emotional distress). Corroborative evidence is certainly helpful, but it is for the jury to weigh the credibility of the witness and determine if he in fact suffered mental anguish. Bunch presented sufficient evidence to convince an 'unprejudiced, thinking mind' of his anguish, and that is enough to support an award for emotional distress.


[67] The Court of Appeals found the award of $260,000 in non-economic damages shocked its conscience. The court cited Hill v. GTE Directories Sales Corp., 71 Wn. App. 132, 856 P.2d 746 (1993). In Hill, the plaintiff sued for sex discrimination, testifying that she consulted a doctor, who prescribed Xanax to calm her, and a psychologist. The jury awarded her $198 in stipulated medical expenses, $40,000 in lost income, and $410,000 in non-economic damages for emotional distress. 71 Wn. App. at 134. The trial judge reduced the economic damages to $19,000 and the non-economic damages to $125,000. The Court of Appeals affirmed, noting the jury's economic award was not supported by the evidence, and the award for emotional distress was the result of passion and prejudice.


[68] As a Court of Appeals decision, Hill is not binding. Moreover, Hill is distinguishable from this case in several ways. First, the non-economic damages in Hill were 10 times the amount of the economic damages, which certainly indicates prejudice. Here the non-economic damages are roughly three quarters of the economic damages ($260,000 compared to $340,000). Second, the jury's excessive award of economic damages in Hill cast suspicion on the award of non-economic damages. Here the award of economic damages is uncontested. Third, the discrimination in Hill occurred over about 13 months, whereas the county discriminated against Bunch for six years. Finally, in Hill the trial court remitted the damages, and the Court of Appeals noted the lower court's 'better position to make that determination' and accorded it 'room for the exercise of its sound discretion.' Id. at 140. Here the trial judge denied the remittitur, strengthening the verdict, and the Court of Appeals did not mention the trial court's discretion at all. In short, comparisons of the present case to Hill are misguided.


[69] Additionally, the jury's award of non-economic damages is not so excessive as to be 'flagrantly outrageous and extravagant,' particularly in light of the strong presumption we accord to jury verdicts. The trial court's refusal to remit the damages likewise confirms the award. We cannot say it was an abuse of discretion to deny the remittitur. Our conscience is apparently more resilient than the Court of Appeals to shocks.


[70] Finally, the Court of Appeals concluded 'the award indicates passion or prejudice, and a reaction to the litany of negative testimony about discriminatory practices by the County.' Bunch v. King County Dep't of Youth Servs., No. 49655-7-I, slip op. at 10 (Wash. Ct. App. Dec. 1, 2003).


[71] The County argues all of the testimony from other witnesses, while necessary to prove discriminatory intent, tainted the jury's verdict. It notes that Washington's Law Against Discrimination allows recovery only for 'actual damages,' RCW 49.60.030(2), and that punitive damages are forbidden, see Dailey v. N. Coast Life Ins. Co., 129 Wn.2d 572, 575, 919 P.2d 589 (1996). It cites federal cases interpreting federal law, which require emotional distress damages to be based on harm to the plaintiff alone, not to so-called 'me-too' witnesses: '{C}ase law reveals that courts scrupulously analyze an award of compensatory damages for a claim of emotional distress predicated exclusively on the plaintiff's testimony.' Price v. City of Charlotte, 93 F.3d 1241, 1251 (4th Cir. 1996).*fn9 This statement is true, but it does not automatically lead to the conclusion that passion and prejudice influenced the jury's award.


[72] 'Before passion or prejudice can justify reduction of a jury verdict, it must be of such manifest clarity as to make it unmistakable.' Bingaman, 103 Wn.2d at 836. 'The verdict of a jury does not carry its own death warrant solely by reason of its size.' Id. at 838. 'As to the other factors from which the idea of passion and prejudice may be derived, sometimes there may occur during the trial untoward incidents of such extreme and inflammatory nature that the court's admonitions and instructions could not cure or neutralize them.' Robeck, 79 Wn.2d at 871. As explained above, the size of this verdict is within the bounds of the evidence presented, and there is no indication of anything untoward in the proceedings that justifies setting the verdict aside based on passion and prejudice.


[73] In sum, the Court of Appeals was not justified to reduce the non-economic damages from $260,000 to $25,000--less than a tenth of the original amount. The court failed even to mention the trial court's discretion, and misanalogized to Hill. The jury's award of non-economic damages is within the range of the evidence presented, is not 'flagrantly outrageous and extravagant,' nor was it motivated by passion and prejudice. The award of the jury should stand unmodified.


[74] CONCLUSION


[75] We reverse the Court of Appeals insofar as it remitted the jury's award, and we reinstate the jury's award of non-economic damages. We also award Bunch reasonable attorney fees and costs.*fn10


[76] It is so ordered.



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Opinion Footnotes

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[77] *fn1 The 'level system' is a points system that awards good behavior and punishes bad behavior. A higher points rating earned the youths perks like candy or the ability to stay out longer. The points also determined the level of discipline for bad behavior. The system was administered with a degree of discretion afforded to the detention officers.


[78] *fn2 The statute reads in relevant part: Any person deeming himself or herself injured by any act in violation of this chapter shall have a civil action in a court of competent jurisdiction to enjoin further violations, or to recover the actual damages sustained by the person, or both, together with the cost of suit including reasonable attorneys' fees or any other appropriate remedy authorized by this chapter or the United States Civil Rights Act of 1964 as amended, or the Federal Fair Housing Amendments Act of 1988 (42 U.S.C. Sec. 3601 et seq.). RCW 49.60.030(2).


[79] *fn3 The parties filed supplemental briefs on February 4, 2005. Bunch moved on February 9, 2005 to strike portions of King County's supplemental brief. The motion was passed to the merits. Bunch argues the county is improperly trying to raise an issue from its petition for review that has been denied, namely, whether a new trial should be limited to damages alone. The county argues it addressed the issue as defined by this court's webpage. The webpage states the issue as follows: Whether the Court of Appeals properly reversed the judgment in this employment discrimination action, either for remittitur of the plaintiff's non-economic damages from $260,000 to $25,000 or for retrial on the issue of general damages only, at the plaintiff's election, based on the conclusion that the jury award was unsupported by the evidence. http://www.courts.wa.gov/appellate trial courts/supreme/issues/?fa=atc supr eme issues.display&fileID=2005jan#P360 20121 (last visited July 20, 2005). The commissioner's office prepares these issue statements, but the website contains this disclaimer: 'Please note that the Justices have not reviewed or approved the issues or classifications, and there can be no guarantee that the court's opinions will address these precise questions' (http://www.courts.wa.gov/appellate trial courts/supreme/ issues/ (last visited July 20, 2005)). In light of the briefing filed with this court, the website's issue statement is accurate only if the new trial language is read descriptively as what the Court of Appeals ordered. It does not represent the issues we accepted for review. When this court narrows issues to be reviewed it does so in the order granting review. Here our order did not frame the issues with particularity. The county's petition for review raised the issue of a new trial's limitation to the question of general damages. We denied the petition. Bunch's cross-petition did not address that issue except insofar as it responded to the county's petition; the issue was not one raised by the cross-petition. It is improper for the county to argue an issue that is not before the court. The scope of our review is limited to issues raised in the cross-petition. RAP 13.7(b). While we have the authority to address the issue, we already chose not to do so. We therefore grant Bunch's motion to strike.


[80] *fn4 The county argues that Bunch invited error by asking the Court of Appeals to modify its opinion to include the remittitur language. Initially, the court simply reduced the damages. The motion for reconsideration asked the court to allow a new trial in the alternative. This was a clarifying move on Bunch's part and was not inviting any kind of error that bars further review.


[81] *fn5 Before 1933 a statute authorized courts to grant a new trial if the award was excessive by reason of passion or prejudice, but it did not authorize a remittitur. See Anderson, 40 Wn.2d at 898-99 (citing Laws of 1854, ch. XX, sec. 216).


[82] *fn6 Amicus Washington State Trial Lawyers Association (WSTLA) Foundation has a slightly different approach. WSTLA Foundation suggests substantial evidence review tests for legal sufficiency of the evidence, whereas the 'shocks the conscience and passion and prejudice' review looks at the weight of the evidence. As the former is a legal inquiry, it should be reviewed de novo; the latter rests largely in the discretion of the trial judge and hence is reviewed for abuse of discretion. WSTLA Foundation compares RCW 4.76.030 with CR 59(a) and CR 50(a), the rules governing motions for a new trial and for judgment as a matter of law, respectively. Under CR 59(a)(7) the trial court determines if 'there is no evidence or reasonable inference from the evidence to justify the verdict or the decision, or {if} it is contrary to law.' CR 50(a) employs a similar standard. CR 50(a) ('If, during a trial by jury, a party has been fully heard with respect to an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find or have found for that party with respect to that issue, the court may grant a motion for judgment as a matter of law . . . .'). It is important to note the civil rules do not say what standard of review an appellate court should employ, whereas the remittitur statute does. Professor Trautman, writing in 1967, showed the two civil rules employ the same standard. Philip A. Trautman, Motions Testing the Sufficiency of Evidence, 42 Wash. L. Rev. 787, 809-15 (1967); see also Haft v. N. Pac. Ry. Co., 64 Wn.2d 957, 960, 395 P.2d 482 (1964) ('In considering the question of whether the trial court correctly granted defendant's motion for judgment notwithstanding the verdict or in the alternative for a new trial, we are mindful of the oft stated rule that in passing upon such motions the evidence, and all reasonable inferences therefrom, must be viewed in a light most favorable to the nonmoving party, and if there is substantial evidence supporting the verdict of the jury, the verdict must stand.' (emphasis added)). Trial court decisions granting or denying motions for unconditional new trials are reviewed for abuse of discretion. Palmer v. Jensen, 132 Wn.2d 193, 197, 937 P.2d 597 (1997). 'Where sufficient evidence exists to support the verdict, it is an abuse of discretion to grant a new trial.' Id. at 198. 'Conversely, it is an abuse of discretion to deny a motion for a new trial where the verdict is contrary to the evidence.' Id. Since trial courts are required to specify why they are ordering a new trial, including reasons outside the record, CR 59(f), appellate courts are in as good a position to determine sufficiency of the evidence. This sounds a lot like de novo review, yet it is called abuse of discretion. In any event, an unconditional grant for a new trial differs from a remittitur, especially since a statute mandating de novo review governs the latter. See Robeck, 79 Wn.2d at 870 (discussing 'questions of excessive or inadequate verdict as distinguished from the question of granting or denying a new trial outright').


[83] *fn7 Bunch also cites Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 116 S. Ct. 2211, 135 L. Ed. 2d 659 (1996), which held that appellate courts review a trial court's denial of a remittitur for abuse of discretion. The opinion was based on the reexamination clause in the Seventh Amendment: 'no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.' Because appellate review of a trial court's denial of a remittitur was a more recent development, the Court reasoned that abuse of discretion was necessary to protect the jury's constitutional role. Id. at 434. However, the federal analogy is inappropriate because the Washington Constitution does not have a reexamination clause, see Const. art. I, sec. 21 ('The right of trial by jury shall remain inviolate . . . .'), but this conclusion does not change the above analysis.


[84] *fn8 The jury instruction on damages stated in relevant part: Your award must be based upon evidence and not upon speculation, guess, or conjecture. The law has not furnished us with any fixed standards by which to measure emotional distress, loss of enjoyment of life, humiliation, pain and suffering, personal indignity, embarrassment, fear, anxiety, and/or anguish. With reference to these matters, you must be governed by your own judgment, by the evidence in the case, and by these instructions. Clerk's Papers at 1096.


[85] *fn9 The county also cites federal law for the quantum of evidence required. See Xieng v. Peoples Nat'l Bank of Wash., 120 Wn.2d 512, 531, 844 P.2d 389 (1993) (this court considers federal law when interpreting RCW 49.60 in the absence of state precedent). However, it appears the circuits are split on that question. Compare Vadie v. Miss. State Univ., 218 F.3d 365, 377 (5th Cir. 2000) (requiring demonstrable emotional distress that is sufficiently articulated with more than conclusory statements) with Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020, 1040 (9th Cir. 2003) (rejecting that rule).


[86] *fn10 RCW 49.60.030(2) grants attorney fees and costs to the prevailing party in employment discrimination cases. See Wheeler v. Catholic Archdiocese of Seattle, 124 Wn.2d 634, 643, 880 P.2d 29 (1994); RAP 18.1. The trial court awarded attorney fees, the Court of Appeals awarded them for the appeal, and it is proper that we do so as well.

[U] Bunch v. King County Department of Youth Services, 119 Wash.App. 1034 (Wash.App.Div.1 12/01/2003)

[1] IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON DIVISION ONE


[2] No. 49655-7-I


[3] 119 Wash.App. 1034, 2003


[4] December 01, 2003


[5] RALPH DWIGHT BUNCH, RESPONDENT, AND JEFFREY MORPHIS AND DWIGHT PRESTON, PLAINTIFFS,
v.
KING COUNTY DEPARTMENT OF YOUTH SERVICES, APPELLANT.


[6] SOURCE OF APPEAL Appeal from Superior Court of King County Docket No: 99-2-11417-5 Judgment or order under review Date filed: 11/27/2001


[7] Counsel OF Record Counsel for Appellant(s) Regina Cahan, King Co Admin Bldg, 500 4th Ave Ste 900, Seattle, WA 98104-2316,


[8] Howard Mark Goodfriend, Edwards Sieh Smith & Goodfriend Ps, 1109 1st Ave Ste 500, Seattle, WA 98101-2988,


[9] Susan Nathalie Slonecker, King Co Admin Bldg, 500 4th Ave Ste 900, Seattle, WA 98104-2316,


[10] Catherine Wright Smith, Edwards Sieh Smith & Goodfriend Ps, 1109 1st Ave Ste 500, Seattle, WA 98101-2988.


[11] Counsel for Respondent(s) Mary Ruth Mann, Law Offices of Mary R. Mann & Associates, Historic Broderick Bldg, 615 2nd Ave Ste 760, Seattle, WA 98104,


[12] Kenneth Wendell Masters, Attorney at Law, 241 Madison Ave N, Bainbridge Island, WA 98110-1811,


[13] Charles Kenneth Wiggins, Attorney at Law, 241 Madison Ave N, Bainbridge Island, WA 98110-1811.


[14] The opinion of the court was delivered by: Baker, J.


[15] Concurring: C. Kenneth Grosse, Faye C. Kennedy


[16] UNPUBLISHED OPINION


[17] Ralph Bunch claimed that his employer, the King County Department of Youth Services (County) discriminated against him based on his race. A jury agreed and awarded him over $600,000 in damages. On appeal, the County argues that the trial court abused its discretion by admitting improper testimony at trial and by failing to exclude certain witnesses who were not timely disclosed in discovery. The County further argues that the damage award for non-economic damages was unsupported by the evidence. The trial court's rulings were within its discretion to manage the conduct of litigation. However, we reverse the judgment for non-economic damages because the jury award was unsupported by the evidence, and indicated an improper attempt to award punitive damages.


[18] I.


[19] Ralph Bunch, an African American, began working as a guard at the King County Youth Service Center in 1991. Bunch was terminated after he allegedly showed an R-rated movie to juveniles at the center on New Year's Eve. He then commenced this action, alleging racial discrimination. Bunch produced substantial testimony that racial discrimination was widespread at the detention facility. One of the management teams was headed by Bob Williams, an African American. He testified that black supervisors were grouped together on certain shifts, and white supervisors on other days. Williams also testified that he believed Craig Daly, the white detention manager, discriminated against blacks. Williams stated that the discrimination led to staff members sending a petition to Governor Locke complaining of discrimination.


[20] Other employees testified about the racial segregation of staff at the detention center. Karen Rispoli testified that when she first joined the staff she was told by a supervisor, Dave Winger, who is white, to 'pick the black side or the white side' and to 'work on the black days or the white days.' Several employees testified that African American staff were punished more severely, were forced to work in more difficult conditions, and had their grievances handled differently than white staff.


[21] The jury found by special verdict that the County racially discriminated and retaliated against Bunch. The jury found that Bunch's damages were $3,500 for lost past wages and benefits; $340,000 for future lost wages and fringe benefits; and $260,000 for non-economic damages. The trial court denied the County's posttrial motions, and awarded Bunch attorney fees of $166,754.50 and costs of $10,126. In a postjudgment order, the trial court assessed $5,000 in sanctions against Bunch's counsel for violating discovery orders.


[22] II.


[23] The County argues that the trial court abused its discretion in allowing Bunch to introduce evidence of the discipline imposed against comparators whose circumstances were not similar to those of Bunch. We disagree. Washington's Law Against Discrimination (WLAD) prohibits discrimination 'against any person in compensation or in other terms or conditions of employment because of . . . race.'*fn1 Because employers will rarely announce that they have acted in a discriminatory manner, employees are allowed to prove racial discrimination claims through circumstantial evidence using a modified burden-shifting framework established in McDonnell Douglas Corp. v. Green.*fn2 Under this framework, Bunch was required to prove that:


[24] (1) he belongs to a protected class, (2) he was treated less favorably in the terms or conditions of his employment (3) than a similarly situated, non-protected employee, and (4) he and the non-protected 'comparator' were doing substantially the same work; if {the employer} then proffers a legitimate, nondiscriminatory reason for its action (here, {Bunch's} alleged misconduct), then (5) {Bunch} must produce evidence indicating {the County's} reason is pretextual. One test for pretext is whether (1) an employee outside the protected class (2) committed acts of comparable seriousness (3) but was not demoted or similarly disciplined. *fn3


[25] The test for comparing Bunch to a white comparator is whether the comparator 'committed acts of comparable seriousness' and was not similarly disciplined.*fn4


[26] The County contends that many of Bunch's witnesses were not proper comparators. But the trial court carefully considered the admissibility of the challenged testimony. Over the course of several days the court painstakingly pared down the list of Bunch's witnesses, including comparators and those the County described as 'me-too' witnesses. In a detailed ruling on the County's motion in limine, the court ruled that comparator incidents were excluded if they predated February 1995, or if they did not involve treatment of a youth, leaving the premises, or retaliation for protected activity. A review of the record shows that the witnesses testifying as comparators met the requirements outlined in McDonnell Douglas Corp. The trial court did not abuse its discretion in setting the parameters for comparators and admitting testimony that fell within those parameters.


[27] The County next argues that the trial court abused its discretion when it failed to exclude witnesses after Bunch repeatedly failed to comply timely with discovery orders. Because the County knew the names of potential witnesses, and because of the deference we pay to the considerable discretion of trial courts on such matters, we conclude that the trial court did not abuse its discretion in refusing to exclude the witnesses. The abuse of discretion standard applies to our review of sanctions for noncompliance with discovery orders.*fn5 Imposition of sanctions by a trial court is a matter of judicial discretion to be exercised in light of the particular circumstances, but the sanction imposed should be based upon the nature of the discovery violation and the surrounding circumstances.*fn6 When imposing a sanction, the court must consider the least severe sanction that will accomplish the purpose to be served by the imposition of the sanction, but not be so minimal that it undermines the purpose of sanction.


[28] In Lampard v. Roth,*fn7 the plaintiff provided a list of 26 potential witnesses.*fn8 However, Lampard failed to answer additional interrogatories and failed to list expert witnesses.*fn9 The defendant moved to compel discovery and the trial was continued to accommodate Lampard's failure to provide adequate discovery. Lampard was ordered to provide answers to the interrogatories by July 17. On July 22, Lampard answered the interrogatories but did not list two witnesses who were ultimately called as experts.*fn10 We held that the trial court abused its discretion by failing to exclude the undisclosed witnesses because the defendant did not have reasonable time to prepare for effective cross-examination or presentation of rebuttal witnesses.*fn11


[29] Bunch's trial counsel failed to completely and timely answer nearly all of the County's discovery requests, resulting in a finding by the trial court that Bunch's failure to comply with discovery orders was 'willful and deliberate.' When pretrial motions were heard, Bunch's witness list still contained 143 witnesses. The trial court thus ordered Bunch to pare down the witness list to individuals actually subpoenaed to testify. By the eve of trial there was still confusion as to which witnesses Bunch was prepared to call. The trial court held that Bunch could offer as a comparator anyone identified in previous answers to interrogatories in response to the County's motion for summary judgment or in depositions, provided the comparator incidents occurred while Williams' was manager in 1995 or later. Bunch repeatedly failed to fully comply with the trial court's discovery orders. But it is within the trial court's discretion to determine what sanctions to impose in such circumstances. At trial Bunch called 22 witnesses, half of whom were comparators expressly allowed by the trial court. Unlike Lampard, the County does not point to any specific witness who had not been listed in the discovery.*fn12 Instead, the County contends that because so many witnesses were disclosed in discovery it amounted to complete nondisclosure. We do not doubt that Bunch's recalcitrance in failing to timely and forthrightly provide discovery caused the County to have difficulties preparing for trial. But the trial court recognized that in fashioning its orders.*fn13 The trial court also sanctioned Bunch in the amount of $5,000. The discovery abuses by Bunch's counsel were serious, and would have justified far more onerous sanctions. Nevertheless, we conclude that the trial court did not abuse its discretion in its choice of sanctions.


[30] The County next argues that the trial court abused its discretion in imposing time limits at trial that favored Bunch. Trial courts have broad discretionary powers in conducting a trial.*fn14 Here, the trial court apportioned the time at the beginning of trial and gave Bunch 35 hours and the County 15 hours. The County did not object. In fact, the County unequivocally stated that it could present its case in eight hours. Six days into trial the County sought clarification of the time allocation, and the trial court allowed the County three more hours. The County did not request more time, nor did it complain to the trial court that the time was unfairly allocated. Because the County did not object to the allocation of trial time, did not identify any evidence it was precluded from presenting, and was given more time when it asked for clarification, we conclude that the trial court did not abuse its discretion in managing the trial. Lastly, the County argues that the $260,000 jury award for non-economic damages was not supported by substantial evidence that Bunch suffered emotional distress. Because there was no evidence presented that Bunch ever received medical or psychological treatment for his emotional distress, and no witnesses testified how or to what extent Bunch was impacted by the County's discrimination, we reverse the award for non-economic damages.


[31] The determination of the amount of damages in actions involving pain and suffering is primarily and particularly within the province of the jury.*fn15 An appellate court will not disturb an award of damages made by a jury unless it is outside the range of substantial evidence in the record, or shocks the conscience of the court, or appears to have been arrived at as the result of passion or prejudice.*fn16


[32] Here, the entire testimony regarding Bunch's emotional distress consists of only a few conclusory comments by Bunch. Bunch argues that it was unnecessary to present additional witnesses to describe his depression. But a review of cases upholding jury awards shows that in those cases multiple witnesses were called to describe the injuries to the plaintiff, and the witnesses did so in far greater detail than Bunch.*fn17


[33] In Hill v. GTE Directories Sales Corp.,*fn18 a sex discrimination case, the plaintiff testified that as a result of the discrimination she 'felt inadequate and frustrated because she was insufficiently trained.'*fn19 She further testified she consulted her doctor, who thought her problem was stress related. He referred her to another doctor, who prescribed Xanax to settle her nerves and calm her. She also testified she saw a psychologist twice in early 1988 before she quit.*fn20 The jury awarded the plaintiff $410,000 in non-economic damages. The trial court found the size of the jury award shocking to its conscience because '{t}here was no credible evidence of emotional distress, mental anguish, pain and suffering, or humiliation so severe as to justify an award of $410,000 for non-economic damages' and reduced the award to $125,000.*fn21 Division Two of this court agreed, holding that, 'In light of the meager evidence and the jury's award of excessive economic damages . . . we agree the $410,000 award clearly indicates passion or prejudice, or an attempt to award punitive damages.'*fn22


[34] While a jury damage award should be overturned only in the most extraordinary circumstances,*fn23 the award here shocks the conscience of the court. The evidence on this issue was simply too meager to support the award. We agree with the County that the award indicates passion or prejudice, and a reaction to the litany of negative testimony about discriminatory practices by the County. The jury verdict for non-economic damages is excessive and must be set aside. We order that the judgment for non-economic damages be reduced to $25,000.


[35] Bunch argues that he is entitled to attorney fees under RCW 49.60.030(2). RCW 49.60.030(2) provides for recovery by a plaintiff in a discrimination action of 'the cost of suit including reasonable attorneys' fees.'*fn24 RCW 49.60.030(2) does not expressly provide for attorney fees on review, but Washington courts have interpreted the statute as authorizing such an award.*fn25


[36] Bunch prevails on his discrimination claim, even though we reduce his judgment for emotional distress. Therefore, we award attorney fees on review to Bunch in an amount to be calculated by the commissioner under RAP 18.1(f), taking into consideration that Bunch did not prevail on the damages issue.


[37] For the foregoing reasons, we reverse in part and affirm in part.



--------------------------------------------------------------------------------

Opinion Footnotes

--------------------------------------------------------------------------------

[38] *fn1 RCW 49.60.180(3).


[39] *fn2 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).


[40] *fn3 Johnson v. DSHS, 80 Wn. App. 212, 227, 907 P.2d 1223 (1996) (citations omitted); Subia v. Riveland, 104 Wn. App. 105, 111 n. 8, 15 P.3d 658 (2001).


[41] *fn4 Johnson, 80 Wn. App. at 227.


[42] *fn5 Rivers v. Wash. State Conf. of Mason Contractors, 145 Wn.2d 674, 684, 41 P.3d 1175 (2002) (citing Burnet v. Spokane Ambulance, 131 Wn.2d 484, 494, 933 P.2d 1036 (1997)).


[43] *fn6 Rivers, 145 Wn.2d at 699.


[44] *fn7 38 Wn. App. 198, 684 P.2d 1353 (1984).


[45] *fn8 Lampard, 38 Wn. App. at 200.


[46] *fn9 Lampard, 38 Wn. App. at 200.


[47] *fn10 Lampard, 38 Wn. App. at 200.


[48] *fn11 Lampard, 38 Wn. App. at 202.


[49] *fn12 The County alleges specifically that Newton and Parrish were never mentioned in discovery but the court nevertheless 'allowed them after Bunch argued they were 'disclosed as comparators.' But neither Newton nor Parrish was actually called as a witness, and their names were listed in exhibit 84 and 212 disclosed in the Answer to Interrogatory and Request for Production. The County also complains that employees York and Villesvik had not been disclosed in response to the County's interrogatory. But during a colloquy with the trial court, counsel for the County characterized York and Villesvik as 'fair' comparators, and acknowledged that the two were listed as comparators in an answer to interrogatory 'long ago.'


[50] *fn13 The County argues that the 'willful and deliberate' failure to answer interrogatories and requests for production prejudiced the County because it was difficult to prepare effective cross-examinations and rebuttal witnesses while conducting the trial itself. But the County does not specify what prejudice it suffered. It instead relies on Allied Fin. Serv., Inc. v. Magnum, 72 Wn. App. 164, 864 P.2d 1, 871 P.2d 1075 (1994) for the proposition that it need not show prejudice. In Allied, we affirmed the exclusion of evidence when the witnesses were not listed in the witness list. Allied, 72 Wn. App. at 167. In contrast, the County did have the names of the witnesses.


[51] *fn14 Kimball v. Otis Elevator Co., 89 Wn. App. 169, 178, 947 P.2d 1275 (1997).


[52] *fn15 Bingaman v. Grays Harbor Cmty.Hosp., 103 Wn.2d 831, 835, 699 P.2d 1230 (1985).


[53] *fn16 Bingaman,103 Wn.2d at 835.


[54] *fn17 See Bingaman, 103 Wn.2d at 833-84 (multiple witnesses described victim's physical agony); see also Washburn v. Beatt Equip. Co., 120 Wn.2d 246, 271-278, 840 P.2d 860 (1992) (upholding jury award where several witnesses testified as to victim's injuries); Henderson v. Tyrrell, 80 Wn. App. 592, 600-602, 910 P.2d 522 (1996) (upholding award where witnesses testified to drastic changes in social and emotional functioning).


[55] *fn18 71 Wn. App. 132, 856 P.2d 746 (1993).


[56] *fn19 Hill, 71 Wn. App. at 139.


[57] *fn20 Hill, 71 Wn. App. at 139.


[58] *fn21 Hill, 71 Wn. App. at 139.


[59] *fn22 Hill, 71 Wn. App. at 139.


[60] *fn23 Miller v. Yates, 67 Wn. App. 120, 124, 834 P.2d 36 (1992).


[61] *fn24 Wheeler v. Catholic Archdiocese of Seattle, 124 Wn.2d 634, 642-43, 880 P.2d 29 (1994).


[62] *fn25 Xieng v. Peoples Nat'l Bank, 120 Wn.2d 512, 533, 844 P.2d 389 (1993) (citing Allison v. Hous. Auth. of Seattle, 118 Wn.2d 79, 98, 821 P.2d 34 (1991)).