SCHINDLER, J.
Tim and Marian Morris sued the Washington Department of Social and Health Services (DSHS) for wrongful adoption. They allege DSHS breached its statutory obligation to disclose the health and social history of Phillip, the child they adopted. The Morrises contend that had DSHS complied with the disclosure requirements, they would have learned, prior to the adoption, that Phillip would develop serious behavioral problems. Had they known this, they allege, they would not have adopted Phillip.
The jury found DSHS was negligent in failing to disclose information required by law, but concluded that had DSHS made the required disclosures, the Morrises would not have changed their decision to adopt the child. The Morrises appeal the jury's verdict and raise issues relating to the jury instructions. Finding no error, we affirm.
FACTS
Phillip was born on July 18, 1985 and lived with his mother until March 1986, when he was removed and placed in foster care. In October 1986, Phillip was returned to his mother. Phillip was in daycare at Childhaven from October 1986 until December 1986. In December 1986, Phillip was removed again and placed in foster care with the same family.
Childhaven is `a private non-profit, human service agency that specializes in early childhood intervention, prevention programs, early intervention or treatment programs for very young children.' RP 2800.
The foster parents wanted to adopt Phillip. But, because DSHS was still seeking to reunite Phillip with his birth mother, the agency rejected their request to adopt him. The foster parents' biological son had died prior to this, and the foster father felt it would be too emotionally difficult to lose another boy that he loved, so the foster parents asked that Phillip be placed in another foster home. In preparation for Phillip's move to another foster home, the foster mother compiled information about the words he knew, his vaccination history, and his likes and dislikes and gave it to the DSHS worker handling Phillip's placement.
The Legislature has directed DSHS `to focus child welfare services on protected the child, strengthening families and, to the extent possible, providing necessary services in the family setting, while drawing upon the strengths of the family.' RCW 74.14C.005(1).
The foster mother included her telephone number with the information she provided and stated that if the new foster parents had any questions, they should not hesitate to contact her.
The Morrises, who became the new foster parents, received this information but never called Phillip's first foster mother.
Phillip was placed with the Morrises in May 1987, when he was 22 months old. In June 1987, Marian Morris met with Phillip's birth mother and a Childhaven case worker. Marion Morris and the birth mother completed the paperwork required for Phillip's re-enrollment in daycare at Childhaven. During this meeting, the case worker obtained information from Marion Morris and the birth mother to prepare a child health report and a personal history report on Phillip. While Phillip attended Childhaven, the Morrises had several other meetings with its staff members. Because Marion Morris learned that Phillip's birth mother had worked as a prostitute during her pregnancy, the Morrises had Phillip tested for AIDS. The test was negative. Marion Morris also learned that Phillip might have developmental delays. The Morrises asked their physician to evaluate Phillip. Their physician told them that, in his opinion, Phillip might be delayed in hand coordination and vocabulary.
About six months after Phillip moved into the Morrises' home, they began considering the idea of moving to London to open a business. The Morrises wanted to take Phillip with them to London if they moved, and they started exploring the possibility of adopting Phillip. Although the Morrises never moved to London, they decided they wanted to adopt Phillip and proceeded with the adoption process. As part of the adoption process, the Morrises received a family background report and Phillip's medical records from DSHS. The report stated that Phillip's birth mother abused drugs and alcohol. The Morrises also learned from this information that Phillip's mother may have used marijuana and alcohol during her pregnancy and that during his early years, Phillip suffered from abuse and extreme neglect. They also learned that, at age two, Phillip's developmental skills were those of an 11-month old. The Morrises decided to continue with the adoption proceedings. On December 7, 1988, the Morrises adopted Phillip.
After they adopted Phillip, the Morrises had three biological children: Alixandria, Tori-Anne, and Gabrielle.
In 1991, when Phillip was six years old, his kindergarten teacher recommended the Morrises take him to Dr. Grant Martin, a psychiatrist, for evaluation because, in the teacher's opinion, Phillip was `not behaving in a typical normal way for a kindergarten[er]' and because some of his behaviors `just didn't register right with her.' Dr. Martin recommended that the Morrises "keep on hugging [Phillip] a lot."
RP vol. V at 870.
RP vol. X at 874.
When Phillip was nine years old, the Morrises again took him to Dr. Martin, who diagnosed him as having attention deficit disorder. Dr. Martin recommended an intensive intervention for Phillip by a team of doctors, educators, and counselors. The Morrises refused to follow Dr. Martin's recommendation.
In December 1997, when Phillip was in sixth grade, the Morrises discovered he had accessed pornography on the Internet and took him to Debra Gray, a self-described "clinical social worker." In January 1998 Gray began unconventional treatment of Phillip. For example, she isolated Phillip and confronted him with negative information about his biological mother. This is how Phillip learned for the first time that his birth mother was a drug and alcohol abuser and a prostitute. When school was not in session, Phillip was required to spend from 9:30 a.m. until 4:30 p.m. at Gray's office. Among the things Gray had Phillip do was work on "clean slates." Gray described a clean slate as follows:
RP vol. IX at 18.
It is part of a total writing assignment. They are talking about how they could feel closer to people.
When you are actively doing little hurtful things to people, it is difficult to feel close. So sometimes when they talk about the ways in which they controlled their family, rather than gotten close to them and agreed to give those things up, they write something like this. The family forgives it, but then also they are less inclined to do the same thing again.
RP Nov. 20 at 111-12.
According to the testimony of Kevin McGovern, a psychologist and sex therapist, a clean slate is "where you are asked to do a listing of behaviors that you have engaged in that will be offensive to other people and to resolve them to take steps not to engage in these behaviors again, in [Philllip's] case, so that he would have a better relationship with his family."
RP 3602-03. McGovern later treated Phillip's sisters.
If Phillip did not cooperate in providing information in a clean slate, he was required to do jobs around Gray's home office. The jobs included picking weeds, washing windows, and vacuuming the office.
In his clean slates, Phillip wrote about spraying the outside and inside of the family car to attract bees, taking $20, giving the family van a flat tire, taking the brake line off his father's bicycle, killing his sister's fish by overfeeding it, and eating his sister's candy.
Gray also made Phillip participate in "holding therapy," the goal of which, as described by Tim Morris, was to "get the rage out." The `rage' Tim Morris was referring to was Phillip's hatred of his biological mother, whom he learned from Gray was a drug and alcohol abuser and a prostitute. As described in testimony during trial, during one of these holding therapy sessions, two of Gray's colleagues restrained Phillip while another pretended to be Phillip's drug-and alcohol-addicted prostitute mother. While being forcibly held and while the role-playing female confronted him, Phillip yelled and screamed obscenities at her.
RP 2111.
After Phillip began treatment with Gray in January 1998, his negative behavior escalated dramatically. By March or April of that year, Gray suggested additional strategies to address his behavior. At Gray's suggestion, the Morrises locked Phillip in his bedroom and twice made him spend the night in the home of strangers. Gray also recommended that the furniture from Phillip's bedroom be removed so only a bed and a dresser remained. In May 1998, again at Gray's suggestion, as punishment for what the Morrises felt was Phillip's disrespectful behavior, they locked him outside of the house for half an hour at night.
According to Gray, on July 6, 1998, Phillip wrote, on one of his clean slates, that he had placed a plastic bag over his sister's head in an attempt to suffocate her while she was sleeping. Gray said that Phillip also told her that he had mutilated a crow and skinned the family cat. Gray recommended the Morrises place Phillip in a secure facility. Based on her recommendation, the Morrises placed Phillip in Fairfax Psychiatric Hospital from July 7 to 21, 1998, where he was treated by Dr. Robert Galack. Dr. Galack diagnosed Phillip with post-traumatic stress disorder. Tim Morris demanded that Dr. Galack diagnose Phillip with reactive attachment disorder in addition to post-traumatic stress disorder in order to facilitate the Morrises' sending Phillip to a facility near Albuquerque, New Mexico, that specializes in the treatment of reactive attachment disorder. Dr. Galack did not believe Phillip suffered from reactive attachment disorder and refused to make this diagnosis.
Tim Morris was concerned about problems with insurance companies because providers other than Dr. Galack had diagnosed Phillip as having both disorders.
After treating Phillip for two weeks, Dr. Galack recommended that Phillip be placed in a supervised environment near his home so the family could be integrated and involved in his treatment. The Morrises refused to follow Dr. Galack's recommendation. They removed Phillip from Fairfax Hospital and, in July 2000, sent him to the facility in New Mexico.
In July 1998, the Morrises took their daughters to see Gray. After meeting with the daughters for a period of time, Gray reported that one daughter said that, before Phillip was placed in Fairfax Hospital, he would take her downstairs at night and put a knife to her genitals. Gray also said that the sister told her that Phillip put his penis in her mouth, put a plastic bag over her head and told her he would kill her, showed her the mutilated cat and said he would do the same to her, showed her the crow he killed, and crawled up the outside of the house and entered her bedroom through the window. Gray testified that another sister told her that Phillip cut her genitals with a knife and made her bleed, put his penis in her mouth, and put a plastic bag over her head. At the Morrises' request, a physician examined this sister and found no tears, bruising, or cuts on her vagina. Another physician performed an examination while the girl was under anesthesia and found no evidence of trauma.
This physician concluded that blood found in the girl's vagina was caused by malarian papilloma, a type of benign tumor.
Tim Morris contacted the staff at the New Mexico facility and urged them to "push [Phillip's] buttons" on the allegations that he sexually abused his sisters. Marian Morris and Gray also urged the staff to engage in a strategy to force Phillip to confess to the sexual abuse. Ultimately, after repeated confrontations, Phillip said that he had sexually abused two of his sisters. In January 2000, he was moved to a secure juvenile sex offender treatment facility in Oklahoma City. He has been in secure facilities ever since. He has not, however, been adjudicated a sex offender.
RP 2358.
On June 22, 1999, the Morrises filed a complaint against DSHS alleging causes of action for negligence/wrongful adoption, violation of the Consumer Protection Act, breach of fiduciary duty, fraud, and breach of contract. The complaint identifies the following as the conduct on which their lawsuit was based:
RCW ch. 19.86.
DSHS, either intentionally or negligently, breached duties owed to Plaintiffs in placing Phillip James Morris (7/18/85) for adoption with the Plaintiffs. This breach includes, but is not limited to, failure to properly disclose material facts relating to the history of the child and his biological parents, failure to properly investigate the history, failure to properly prepare the adoptive parents for adoption, withholding documentation and information from the claimants after the adoption and such other acts as shall be demonstrated at trial.
On October 19, 2000, the trial court, on DSHS's motion for summary judgment, dismissed all of the Morrises' claims except for negligence/wrongful adoption.
Before trial began, the court heard argument on the admissibility of Phillip's adoption file. The file contained information the Morrises wanted to use in support of their claim that Phillip's condition was caused by asphyxia, in utero exposure to drugs and alcohol, hepatitis, and a scalp injury at birth. DSHS opposed the admission of the adoption file on the ground that the documents in the file contained inadmissible hearsay. The trial court agreed with DSHS, but admitted the file, including the documents containing information on the asserted causes of Phillip's condition, as evidence the jury could consider to determine whether the information in the file should have been disclosed to the Morrises prior to the adoption and to determine the Morrises' damages, if any. The court did not admit the information in the file for the truth of the matters asserted. Rather, to establish that any of these matters caused Phillip's condition, the Morrises were required to submit expert testimony. For example, the file contained a statement of a case worker that Phillip's birth mother had been addicted to alcohol. The court permitted the jury to consider this statement as part of the information that was not disclosed. But, because at trial there was no expert or other non-hearsay testimony presented on the issue, the jury was not permitted to use that hearsay evidence as proof that Phillip's birth mother had in fact been addicted to alcohol and that Phillip's behavior was caused by her addiction or resulted in damages to the Morrises.
At the conclusion of the evidence, the parties addressed their proposed jury instructions. The conference on the instructions to be given to the jury lasted approximately five hours.
After deliberations, the jury found that DSHS was negligent in failing to disclose the information required by law. It concluded, however, that had DSHS disclosed the required information, the Morrises would not have changed their decision to adopt Phillip. The Morrises appeal and argue that several of the instructions are erroneous and require the verdict to be vacated.
In their assignments of error, the Morrises assign error to four instructions: Instructions 11, 16, 23, and 29. They only provide argument with respect to Instruction 11, 16, and 23. Instruction 29, regarding mitigation of damages, is not mentioned anywhere in their brief except for the assignments of error and is not included in the appendix to the brief, where the Morrises reproduce the instructions they argue are erroneous. We presume they have abandoned their argument with respect to the mitigation of damages instruction. Cf. Valley View Indus. Park v. Redmond, 107 Wn.2d 621, 630, 733 P.2d 182 (1987) (A party abandons assignments of error to findings of fact by failing to argue them in his or her brief.). We see no reason why the same rule should not apply to assignments of error to jury instructions.
DISCUSSION
'On appeal, jury instructions are reviewed de novo, and an instruction that contains an erroneous statement of the applicable law is reversible error where it prejudices a party.' A party is prejudiced by an erroneous instruction if the outcome of the trial would have been different had the error not occurred.
Cox v. Spangler, 141 Wn.2d 431, 442, 5 P.3d 1265 (2000).
Hawkins v. Marshall, 92 Wn. App. 38, 46-47, 962 P.2d 834 (1998).
The Morrises challenge Instruction 11 that sets forth the plaintiff's burden of proof. The instruction provides:
Plaintiffs have the burden of proving each of the following propositions by a preponderance of the evidence:
1. DSHS negligently failed to provide the information required by law;
2. Plaintiffs would not have adopted Phillip if they had known the information that DSHS failed to provided [sic] as required;
3. The information not provided was reasonably related to a proximate cause of Phillip's condition; and
4. Phillip's condition proximately caused damages to the plaintiffs.
If you find from your consideration of all the evidence that each of these propositions has been proved, your verdict should be for the plaintiff. On the other hand, if any of these propositions has not been proved, your verdict should be for the defendant.
CP 124.
The special verdict form is essentially identical to Instruction 11. It provides in part:
QUESTION NO. 1: Was the defendant negligent in failing to disclose information required by law?
ANSWER: v Yes No
If you answered `no' to Question No. 1, then sign and return this verdict. If you answered `yes' to Question No. 1, then answer Question No. 2.
QUESTION NO. 2: If DSHS made the disclosures required by law would the Morrises have changed their decision to adopt Phillip?
ANSWER: Yes v No
If you answered `no' to Question No. 2, then sign and return this verdict. If you answered `yes' to both Questions Nos. 1 and 2, then answer Question Nos. [sic] 3.
Because the jury answered `no' to Question 2 in the special verdict form, the jury did not answer the remaining special verdict Questions 3 through 8.
Question 3 is essentially identical to the third proposition of Instruction 11. Question 3 asks: "Were the matters not disclosed reasonably related to a proximate cause of Phillip's condition?"
CP 160. Question 4 relates to the statute of limitations. Question 5 relates to the amount of the plaintiffs' damages, if any. Questions 6 and 7 relate to the plaintiffs' negligence, if any. Question 8 relates to the percentage of fault attributable to the plaintiffs and to the defendant.
Although the conference on the proposed jury instructions was not transcribed, the record shows that, with respect to Instruction 11, the Morrises objected to the requirement that they prove the third proposition in Instruction 11 — that the information not provided was reasonably related to a proximate cause of Phillip's condition — on the ground that this is not an element a plaintiff must prove in a wrongful adoption case.
On appeal, the Morrises argue that proximate cause in a wrongful adoption case requires only proof that had DSHS fulfilled its duty to disclose statutorily-mandated information, the adoptive parents would not have chosen to adopt. They argue that Instruction 11 improperly required them to prove an additional `version' of proximate cause, namely that a causal connection exists between the withheld information and Phillip's condition. Although Instruction 11 could be improved upon, we find no error in the instruction.
See RCW 26.33.350, .380.
For example, if the order of 3 and 4 in the instruction were reversed, the instruction would more clearly indicate that 3 relates to damages, not the Morrises' decision to adopt.
Proximate cause consists of two elements: cause in fact and legal causation. Cause in fact is the `but for' cause of the injury; that is, but for the defendant's actions the plaintiff would not have been injured. The issues regarding this element of proximate cause are fact-responsive. `The focus in the legal causation analysis is whether, as a matter of policy, the connection between the ultimate result and the act of the defendant is too remote or insubstantial to impose liability.' Legal causation involves considerations of logic, common sense, justice, policy, and precedent.
Schooley v. Pinch's Deli Market, Inc., 134 Wn.2d 468, 478, 951 P.2d 749 (1998).
Id.
McKinney v. State, 134 Wn.2d 388, 406, 950 P.2d 461 (1998).
Id., 134 Wn.2d at 478-79.
Id. at 479.
The second proposition of Instruction 11 is the `but for' factual element of proximate cause. It required the Morrises to prove that they would not have adopted Phillip had DSHS disclosed the information it was required by law to disclose. The Morrises do not dispute that this part of Instruction 11 was proper. In fact, their argument is that their burden of proof on proximate cause pertains solely to this question: `had the adoption agency fulfilled its duty to disclose, would the adoptive parents still have chosen to adopt?' This is precisely what the second part of Instruction 11 requires the Morrises to prove and precisely what Question 2 of the special verdict form asked.
Br. of Appellant at 23.
Because the jury found that the Morrises failed to prove the second part of Instruction 11, it answered `no' to Question 2 on the special verdict form and did not reach the issue addressed by the third part of Instruction 11 and asked in Question 3 of the special verdict form:
whether the information DSHS did not provide was reasonably related to a proximate cause of Phillip's condition. The third proposition of Instruction 11 is the part of the instruction the Morrises argue is improper. But, the jury's response to Question 2 on the special verdict form is dispositive. Any error in the third part of Instruction 11 is therefore harmless error and not grounds for reversal.
Moreover, given the evidence in this case, the trial court properly exercised its discretion in including the third proposition of Instruction 11. The trial court correctly determined as a matter of law that, in order for DSHS to be liable for any damages the Morrises incurred, the information DSHS failed to disclose must have been reasonably related to a proximate cause of Phillip's condition. Part three of Instruction 11 addresses proximate cause with respect to the damages the Morrises incurred because of Phillip's condition. It required the Morrises to prove that the information not provided was reasonably related to a proximate cause of Phillip's condition. Because the evidence at trial on the proximate cause of Phillip's condition, and therefore on the Morrises' claimed damages, supported a finding that causes other than those contained in the information DSHS negligently failed to disclose was a proximate cause of Phillip's problems, the court did not err when it included the third element of Instruction 11. Specifically, the jury heard evidence about events in Phillip's life prior to his adoption, such as the abuse and neglect he suffered, that caused his subsequent behavioral problems. DSHS was required to disclose this information to the Morrises. If pre-adoption events were reasonably related to a proximate cause of Phillip's condition, then the jury could have found that DSHS's negligence was reasonably related to and a proximate cause of the Morrises' damages. But, the jury also heard evidence that would support the conclusion that events subsequent to Phillip's placement with the Morrises were causes of his condition and the Morrises' damages, such as the removal, separation, and alienation from the Morrises, the unconventional and harmful therapy and treatment with Gray, and treatment at the New Mexico facility. If these events were the cause of his condition, then DSHS's negligence was not reasonably related to Phillip's condition and the Morrises' damages. That is why it was necessary for the trial court to give the jury instructions defining not only proximate cause, but also contributory negligence, intervening causes, and damages. And that is why it was appropriate for the court to instruct the jury that the Morrises had to prove, among other things, that the statutory information DSHS failed to disclose was reasonably related to a proximate cause of Phillip's condition and the Morrises damages.
See id., 119 Wn.2d at 268 (`The trial court has considerable discretion in deciding how jury instructions will be worded.').
See Schooley, 134 Wn.2d at 478 (`where the facts are not in dispute, legal causation is for the court to decide as a matter of law').
Instruction 8: `The term `proximate cause' means a cause which in a direct sequence unbroken by any new independent cause, produces the injury complained of and without which such injury would not have happened.
"There may be one or more proximate causes of an injury." CP 121.
Instruction 18: `Contributory negligence is negligence on the part of a person claiming injury or damage which is a proximate cause of the injury or damage complained of.
'If you find contributory negligence, you must determine the degree of negligence, expressed as a percentage, attributable to the person claiming [the] injury or damage. The court will furnish you a special verdict form for this purpose. Your answers to the questions in the special verdict form will furnish the basis by which the court will reduce the amount of any damages you find to have been sustained by a party who was contributorily negligent, by the percentage of such contributory negligence.' CP 131.
Instruction 20: `If you find that the defendant was negligent but that the sole proximate cause of the alleged harm was a later independent intervening cause that the defendant, in the exercise of ordinary care, could not reasonably have anticipated, the defendant's original negligence is superseded by the intervening act and is not a proximate cause of the alleged harm. If however, in the exercise of ordinary care, the defendant should reasonably have anticipated the intervening act it does not supersede defendant's original negligence and defendant's negligence is a proximate cause.
'It is not necessary that the sequence of events or the particular resultant harm be foreseeable. It is only necessary that the resultant harm fall within the general field of danger which the defendant should reasonably have anticipated.' CP 133.
Instruction 27: `It is the duty of the court to instruct you as to the measure of damages. By instructing you on damages, the court does not mean to suggest for which party your verdict should be rendered.
'If you find for the Morrises, then you must determine the amount of money which will reasonably and fairly compensate them for such damages you find were proximately caused by the negligence, if any, of DSHS. `You should consider the following:
A. The amount of damages to fairly compensate Mr. Mrs. Morris for the emotional distress and loss of enjoyment of life proximately caused by DHS.
B. Past economic damages consisting of the cost of Phillip's treatment from January 1998 to the present.
C. Future economic damages consisting of the reasonable costs of treatment necessary to provide for Phillip's treatment until age 18, and treatment of Gabrielle, Tori-Anne and Alixandria until age 18.
'It is for you to determine, based upon the evidence, whether any particular element has been proved by a preponderance of the evidence.
'Your award should not be based upon speculation, guess, or sympathy.' CP 140.
The Morrises' reliance on Jackson v. Department of Family Services, 287 Mont. 473, 956 P.2d 35 (1998), is misplaced. Montana's law on proximate cause differs from Washington's.
The Morrises also argue that Instruction 16 was improper because it is an impermissible comment on the evidence and that the court's determination that there was insufficient evidence presented to consider the allegations listed in the instruction was error. Instruction 16 reads:
You may not speculate as to the proximate cause(s) of Phillip's behavior unless there has been expert testimony to support a causal link on a more probably than not basis. The court has determined as a matter of law that such evidence has not been presented regarding the following matters and for this reason you may not consider the following allegations as being a proximate cause of Phillip's conditions:
Asphyxia;
Marijuana exposure in utero;
Alcohol exposure in utero;
Hepatitis;
Scalp injury at birth.
CP 129.
The Morrises do not challenge the first sentence of Instruction 16 that instructs the jury that it may not speculate as to the proximate cause of Phillip's behavior unless expert testimony was presented to support a causal link on a more probable than not basis. The Morrises challenge the part of Instruction 16 stating that the jury was not to consider allegations of asphyxia, marijuana and alcohol exposure in utero, hepatitis, and a scalp injury at birth as proximate causes of Phillip's condition because they failed to present adequate expert evidence about these allegations. We find that the trial court did not abuse its discretion in concluding that there was not a sufficient evidentiary foundation with respect to the five alleged causes of Phillip's behavior listed in Instruction 16 and the court correctly instructed the jury that it could not consider these as proximate causes of Phillip's condition and the Morrises damages.
This is a correct statement of the law. See Riggins v. Bechtel Power Corp., 44 Wn. App. 244, 254, 722 P.2d 819 (1986) (`Where the injury involves obscure medical factors which are beyond an ordinary lay person's knowledge, necessitating speculation in making a finding, there must be expert testimony that the negligent act probably caused the injury.').
With respect to hepatitis and the scalp injury, although medical personnel suspected at one point that Phillip had had hepatitis, they changed their opinion because his symptoms were temporary and concluded the symptoms were related to chicken pox, not hepatitis. Also, counsel for the Morrises informed the court that they were not alleging a scalp injury as a cause of Phillip's problems.
With respect to alcohol exposure in utero and fetal alcohol effect, Dr. Galack, who treated Phillip for two weeks while he was at Fairfax Hospital, expressed the opinion that a cause of Phillip's behavior was fetal alcohol exposure. Dr. Galack testified that, in order to diagnose a child with fetal alcohol effect, there must be evidence that the mother drank alcohol during the pregnancy. But, he testified several times that he had no evidence that Phillip's birth mother drank during pregnancy.
Because Phillip's birth mother drank alcohol both before and after her pregnancy, he assumed she must have consumed alcohol during the pregnancy as well. Without evidence that Phillip's birth mother drank alcohol while pregnant with Phillip, Dr. Galack's opinion that Phillip has fetal alcohol effect and that this was a cause of his behavior problems was speculative and without foundation. An expert's opinion may not be conclusory or speculative and must have an adequate foundation. It is error to admit speculative expert testimony. The trial court did not abuse its discretion in determining that this speculative testimony was not admissible.
See RP 1267-68 (`You have alcohol before. You have substance abuse before and you have substance abuse after. In a young female, it is highly unlikely that, given the history of her lack of emotional support, her behavior during the time of her drug abuse, that during this nine-month period she would be totally abstinent from drugs.').
See Queen City Farms v. Central National Ins. Co., 126 Wn.2d 50, 102, 882 P.2d 703 (1994) (`there is no value in an [expert] opinion that is wholly lacking in some factual basis'); Miller v. Likins, 109 Wn. App. 140, 148, 34 P.3d 835 (2001) (stating that it "is well established that conclusory or speculative expert opinions lacking an adequate foundation will not be admitted.") (quoting Safeco Ins. Co. v. McGrath, 63 Wn. App. 170, 177, 817 P.2d 861 (1991)); Griswold v. Kilpatrick, 107 Wn. App. 757, 762, 27 P.3d 246 (2001) (`Our courts have excluded expert opinions that are based on unsubstantiated assumptions.').
Weyerhaeuser Co. v. Commercial Union Ins. Co., 142 Wn.2d at 654, 683-84, 15 P.3d 115 (2000).
We review the trial court's admission or rejection of expert testimony for abuse of discretion. State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997), Whether evidence is admissible is a decision within the sound discretion of the trial court and will not be reversed absent abuse of that discretion. State v. Hamlet, 133 Wn.2d 314, 324, 944 P.2d 1026 (1997). `An abuse of discretion occurs only when no reasonable person would take the view adopted by the trial court.' State v. Castellanos, 132 Wn.2d 94, 97, 935 P.2d 1353 (1997).
With respect to asphyxia, Dr. Galack's expressed the opinion that asphyxia was, more probably than not, a cause of Phillip's behavioral problems. However, he testified that asphyxia and associated psychiatric problems are not areas of his expertise, that he did not know the degree of asphyxia necessary to cause behavioral problems, and that asphyxia `can' cause the behavioral problems Phillip exhibited. Dr. Galack also testified that he reviewed '[a] lot of literature in connection with the case upon counsel's request,' but he did not identify any specific resources he consulted with regard to asphyxia and behavioral problems. Nor did he identify the facts upon which he based his opinion that there existed a link between asphyxia and Phillip's behavioral problems. The trial court correctly concluded that Dr. Galack's opinion lacked an adequate foundation.
RP 1285.
RP 1290.
With respect to marijuana exposure in utero, the Morrises argue that the videotaped deposition of Dr. Thomas Donica supports their argument that the trial court erred by concluding that there was insufficient evidence to show that it was a proximate cause of Phillip's behavior. But, Dr. Donica's testimony does not explain the relationship between any marijuana use by the birth mother during pregnancy and Phillip's behavioral problems.
In fact, Dr. Donica was of the opinion that Phillip's problems were the result of abuse, neglect, abandonment, and lack of nurturing. Again, the trial court properly instructed the jury not to consider marijuana exposure in utero as a proximate cause of Phillip's behavior.
Instruction 16 was a proper limiting instruction based on the trial court's legal determination under ER 401 and 702 that the expert opinions lacked an adequate foundation and were speculative. The trial court did not abuse its discretion in excluding this evidence and giving this limiting instruction. Instruction 16 accurately stated the law; accordingly, it is not, as the Morrises argue, an improper comment on the evidence. Given the record, it would have been an abuse of discretion for the court to have allowed the jury to consider these five factors as proximate causes of Phillip's condition and the Morrises' damages.
See In re Detention of Campbell, 139 Wn.2d 341, 358, 986 P.2d 771 (1999), cert. denied, 531 U.S. 1125 (2001).
CONCLUSION
We find no error in the jury instructions the Morrises challenge. Accordingly, we affirm the trial court's judgment.
Because we affirm, we do not address the Morrises' argument that if we remand for a new trial, we should instruct the trial court not to give an instruction similar to Instruction 23, concerning the involuntary commitment of a minor age 13 or over.
BAKER and AGID, JJ., concur.