Rebecca Lamonte, App. V. The Estate Of Sherman Lloyd Cook, Jr., Res.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
No. 69115-5-1
DIVISION ONE
REBECCA LAMONTE, a single
individual,
Appellant,
SHERMAN COOK and JANE DOE
COOK, husband and wife and the
marital community composed thereof,
Defendants,
RICHARD WESTERFIELD and JANE
DOE WESTERFIELD, husband and
wife and the marital community
composed thereof,
Respondents.
UNPUBLISHED OPINION
FILED: 	March 3, 2014
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Schindler, J. — Rebecca LaMonte, Sherman Cook, and Richard Westerfield
were involved in a three-car rear end collision. Following a three-week trial, the jury
found Westerfield and nonparty Cook were negligent but only Cook was the proximate
cause of LaMonte's injuries. The courtentered judgment on the verdict dismissing the
claims against Westerfield with prejudice. 	LaMonte argues the trial court erred by (1)
granting Westerfield's motion to withdraw admissions by default under CR 36(b), (2)
ruling the admissions of nonparty Cook were hearsay, and (3) allowing Westerfield to

No. 69115-5-1/2
introduce testimony from the perpetuation deposition of Cook. 	We affirm.
FACTS
1997 Car Accident
At approximately 12:30 p.m. on May 30, 1997, Rebecca LaMonte was driving
westbound on Interstate 405 (I-405) in a Chrysler Concorde. 	It was raining heavily and
the road was wet. 	Sherman Cook was behind LaMonte's car in his Volvo station
wagon. A van was behind Cook's car. 	Richard Westerfield was driving behind the van
in a Geo Metro. 	As LaMonte was approaching the Interstate 5 (I-5) overpass, she was
in the right-hand lane and saw traffic was stopped ahead. 	LaMonte stepped on her
brakes to stop. 	Cook's car hit the rear end of LaMonte's car. 	The van immediately
swerved and moved into the left lane to avoid the collision. Westerfield was unable to
stop and hit the rear end of Cook's Volvo. 	The Volvo came to a stop on the left-hand
shoulder of the highway.
In her witness statement to the Washington State Patrol (WSP), LaMonte states
that she stopped quickly. 	LaMonte said that after she stopped, she was hit from behind,
pushing her car forward into the vehicle in front of her and deploying the airbag.
In his witness statement to the WSP, Cook states that "the car in front of me
made a[n] emergency stop for another accident. 	I was making a[n] emergency stop as
well. 	The car behind me hit my car. 	I hit the car in front of me. 	My car is totaled. 	Hit
from back and front." 	In his witness statement to the WSP, Westerfield states, "Driving
behind Volvo - rain &wet pavement. Volvo swerved when braking; I could not stop in
time - impacted Volvo from rear. No other cars hit me (I was last in line)."

No. 69115-5-1/3
2000 Lawsuit
On March 3, 2000, LaMonte filed a personal injury lawsuit against Cook and
Westerfield. 	LaMonte alleged Cook and Westerfield "operated their vehicles in a
negligent and careless manner so as to cause their vehicles to collide with the plaintiffs
vehicle." The lawsuit claimed LaMonte "sustained serious and permanent injuries,
including, but not limited to, Fibromyalgia."
On April 3, LaMonte filed an amended complaint. The amended complaint
alleged, in pertinent part:
The plaintiff's vehicle was stopped for traffic ahead of her, which was
stopped due to a[n] earlier vehicle collision which blocked her lane of
travel, when Defendant COOK's vehicle collided with the rear of plaintiff's
vehicle, and/or then Defendant WESTERFIELD failed to stop the vehicle
he was operating and collided into Defendant COOK's vehicle, which then
collided into plaintiffs vehicle.
On April 4, LaMonte served Cook with requests for admission. 	On April 8,
LaMonte served Westerfield at his residence in Puyallup with a copy of the summons
and the first amended complaint, the order setting civil case schedule, interrogatories,
requests for production of documents, and requests for admission.
On May 4, Westerfield filed an answer and affirmative defenses. Westerfield
denied the collision with Cook caused Cook's car to hit LaMonte's car. Westerfield
asserted as an affirmative defense that LaMonte was negligent and any injuries or
damages were caused by "some other person."
On May 15, Cook sent LaMonte's attorney responses to the requests for
admission. In response to the request to admit that "because Richard Westerfield's
vehicle collided with your vehicle, your vehicle collided with the rear end of Rebecca
LaMonte's vehicle on southbound I-405 at or near the I-5 southbound exit ramp in King

No. 69115-5-1/4
County, Washington," Cook answered, "Admit."
On May 31, LaMonte's attorney sent a letter to Westerfield's attorney concerning
the outstanding response to interrogatories. The letter states that "this office forwarded
interrogatories to your offices, on behalf of the Defendants Westerfield, on or about April
4, 2000," and asks for "an approximate date of when we can expect to receive the
answers." The letter makes no mention of the requests for admission.
Westerfield responded to the interrogatories three days later. In response to the
interrogatory asking Westerfield to describe the collision, Westerfield states that after
Cook rear-ended LaMonte, his car "ran into the rear of the Cook vehicle."
INTERROGATORY NO. 4:
Describe in detail the collision at issue in this case:
a. 	When and where the collision occurred;
b. 	What happened, and how;
c. 	Who was involved in the accident;
d. 	Why the accident happened;
e. 	Who, if anyone, appeared hurt in any way:
ANSWER:
a. 	May 30, 1997, at approximately 12:30 p.m. 	I-405 south, 100
feet before the I-5 onramp in Tukwila, King County,
Washington.
b. 	It had been sunny, and at the time of the accident it was
raining heavily. 	There were four and possibly five vehicles
directly involved. While crossing over southbound I-5, all
vehicles were in lane 1. There was an unknown driver, who
I believe was in a red van, who was first in line, and who I
later learned had been in a prior accident, and who was
stopped. The plaintiff stopped abruptly behind the red van,
and Mr. Cook apparently struck the rear of the plaintiffs
vehicle, the vehicle in front of me swerved, and at that point,
I saw what had developed, was unable to stop my vehicle,
and ran into the rear of the Cook vehicle. 	I believe the Cook
vehicle was a Volvo station wagon.
c. 	The parties hereto, and the unidentified driver of the red van
described above.
d. 	Because of the accident involving the red van, and the
drivers behind it coming to an abrupt stop.
e. 	No one.

No. 69115-5-1/5
In March 2001, Cook and LaMonte entered into a covenant judgment settlement
agreement. 	Cook agreed to pay policy limits of $25,000 and LaMonte agreed to not
execute on any judgment against Cook beyond policy limits. 	On May 4, the court
entered an order determining the $25,000 settlement was reasonable and "that any
potential claims for contribution against Mr. Cook are hereby discharged pursuant to
RCW 4.22.060(2)."1 	On May 7, the court entered an amended order scheduling the trial
to begin on February 25, 2002.
February 2002 Trial Date
Cook was hospitalized in 2001 for a heart condition and was on dialysis for
kidney failure. 	The parties took a perpetuation deposition of Cook on May 3, 2001 and
December 26, 2001.
Westerfield retained accident reconstruction expert Richard Chapman to testify at
trial. 	Chapman issued his report on December 11, 2001. Chapman's report states,
"There is no obvious physical evidence to support a conclusion that the Cook Volvo
struck the rear of the LaMonte Chrysler two separate times." According to Chapman,
when Cook's vehicle hit LaMonte's car, Cook was steering to his left and "the right half
of the front of the Cook vehicle ... made contact with the left half of the rear of the
LaMonte vehicle." Chapman concludes Westerfield was travelling at about 10 miles per
hour in his Geo Metro when he struck Cook's car, and that the damage to the rear of
LaMonte's car reflects an impact at a much greater speed. 	Chapman states that
1The terms of the settlement state, in pertinent part:
• 	Upon court approval of the proposed settlement, my client's carrier will pay $25,000
(USAA policy limits) to you and your clients' trust account.
• 	Your client will execute a satisfaction of the judgment promptly upon entry of a final
judgment in the action (e.g., following the jury trial).

No. 69115-5-1/6
Westerfield's front bumper hit the rear bumper of Cook's Volvo and the impact between
Cook's car and LaMonte's car caused "far more severe" damage to the front of Cook's
vehicle than the damage from the rear impact with Westerfield.
Chapman's report states, in pertinent part:
5. The damage on the front of the Westerfield Geo is consistent
with an impact speed of approximately 10 miles per hour when that Geo
struck the rear of the Cook Volvo (see Photo 5 & 6). A 1989 Geo Metro
striking the rear of a stopped 1984 Volvo station[ jwagon at a speed of
approximately 10 miles per hour would result in the Volvo being
accelerated to a speed of approximately 5 miles per hour or less. 	The
Volvo would then have moved forward and struck the rear of Ms.
LaMonte's stopped Chrysler at a speed of 5 miles per hour o[r] less. The
damage actually sustained by the rear of Ms. LaMonte's vehicle and the
front of Mr. Cook's vehicle certainly reflects an impact speed much greater
than 5 miles per hour for the Volvo when it struck the rear of the stopped
Chrysler.
On "a more likely than not basis," Chapman states that Cook's Volvo rear-ended
LaMonte's Chrysler "only once" and Westerfield's car rear-ended Cook after Cook's car
came to a stop at an angle. 	The report states, in pertinent part:
1. The Volvo driven by Mr. Cook struck the rear of the Chrysler
driven by Ms. LaMonte only once after Mr. Cook was not able to stop his
Volvo once Mr. Cook was able to first see Ms. LaMonte's vehicle stopped
in his traffic lane.
2. 	Mr. Westerfield's Geo struck the rear of Mr. Cook's Volvo after
the Volvo had come to a stop, angled to the left within the right traffic lane.
Damage to the three involved vehicles does not indicate that this impact
was sufficient to accelerate the Volvo into the Chrysler with sufficient
speed to cause the damage on the front ofthe Cook Volvo and the rearof
the LaMonte Chrysler.
In December 2001, Westerfield filed a disclosure of possible primary witnesses
and identified Chapman as an accident reconstruction expert. 	In February 2002,
Westerfield and LaMonte filed a "Joint Statement of Evidence." 	LaMonte identified
accident reconstruction expert Bryan Jorgensen and approximately 10 medical experts.

No. 69115-5-1/7
Westerfield identified Chapman and four medical experts.
Pretrial, Westerfield filed a motion to exclude expert testimony on fibromyalgia.
The court granted the motion. The parties agreed to stay the trial pending the decision
in an appeal in another case concerning expert testimony on fibromyalgia.
The court entered a number of orders continuing the trial date. Approximately 10
years later, the court scheduled the trial to begin on May 14, 2012.
May 14. 2012 Trial Date
On March 9, 2012, LaMonte's attorney contacted Westerfield's attorney about
the requests for admission served on April 8, 2000. Westerfield's attorney said that the
firm did not have "proof of service of Defendant Westerfield's admissions/denials to the
requested [requests for admission]." 	LaMonte refused to give Westerfield the
opportunity to respond to the requests for admission.
The requests for admission ask Westerfield to admit or deny that nothing
obstructed his "view of the stopped southbound traffic" on I-405; that "there were no
emergent or unusual circumstances at the time ofthe collision;" that LaMonte was "in no
way responsible, nor negligent in any manner;" that the collision with Cook's vehicle
caused Cook's car to collide with LaMonte's vehicle; and that Westerfield was "liable for
the injuries sustained by Rebecca LaMonte," including neck and back injuries as well as
fibromyalgia.2
2The requests for admission state, in pertinent part:
REQUEST FOR ADMISSION NO. 8: 	Please admit or deny that there was nothing
obstructing your view ofthe stopped southbound traffic on southbound I-405 at or
near the I-5 southbound exit ramp in King County, Washington on May 30, 1997
at approximately 12:30 p.m.
REQUEST FOR ADMISSION NO[.] 9: 	Please admit or deny that there was nothing
obstructing your view of Sherman Cook's stopped vehicle on southbound I-405 at

No. 69115-5-1/8
or near the 1-5 southbound exit ramp in King County, Washington, on May 30,
1997, at approximately 12:30p.m.[ ]
REQUEST FOR ADMISSION NO[.] 10: 	Please admit or deny that there was nothing
obstructing your view of Rebecca LaMonte's stopped vehicle on southbound I-
405 at or near the I-5 southbound exit ramp in King County, Washington, on May
30, 1997, at approximately 12:30p.m.[ ]
REQUEST FOR ADMISSION NO[.] 11: 	Please admit or deny that on May 30, 1997, at
approximately 12:30[ ]p.m., you failed to stop for stopped traffic on southbound I-
405 at or near the I-5 southbound exit ramp in King County, Washington.
REQUEST FOR ADMISSION NO. 12: 	Please admit or deny that on May 30,1997, at
approximately 12:30 p.m., your vehicle struck Sherman Cook's vehicle priorto
his impact with Rebecca LaMonte's vehicle on southbound I-405 at or near the I-
5 southbound exit ramp in King County, Washington.
REQUEST FOR ADMISSION NO. 14: 	Please admit or deny that on May 30, 1997, at
approximately 12:30[ ]p.m., because your vehicle collided with Sherman Cook's
vehicle, Sherman Cook's vehicle collided with the rear end of Rebecca
LaMonte's vehicle on southbound I-405 at or near the I-5 southbound exit ramp
in King County, Washington.
REQUEST FOR ADMISSION NO. 15: 	Please admit or deny that on May 30, 1997, at
approximately 12:30 p.m., prior to Sherman Cook's vehicle striking Rebecca
LaMonte's vehicle, your vehicle struckSherman Cook's vehicle on southbound I-
405 at or near the I-5 southbound exit ramp in King County, Washington
REQUEST FOR ADMISSION [NO.] 16: 	Please admit or deny that there were no
emergent or unusual circumstances at the time of the collision between your
vehicle and Sherman Cook's vehicle on May 30,1997, at approximately 12:30
p.m.
REQUEST FOR ADMISSION NO. 18: 	Please admit or deny that on May 30, 1997, at
approximately 12:30 p.m., Rebecca LaMonte sustained injuries as a result of the
subject collision on southbound I-405 at or nearthe I-5 southbound exit ramp in
King County, Washington.
REQUEST FOR ADMISSION NO. 19: 	Please admit or deny that you are liablefor the
injuries sustained by Rebecca LaMonte as a result ofthe rear end collision
between Sherman Cook's vehicle and your vehicle on May 30, 1997, at
approximately 12:30 p.m.
REQUEST FOR ADMISSION NO. 20: 	Please admit or deny that as a result of the rear
end collision between Sherman Cook's vehicle and Rebecca LaMonte's vehicle
on May 30, 1997, at approximately 12:30 p.m., she sustained injuries to her neck
and/or back.
REQUEST FOR ADMISSION NO. 21: 	Please admit or deny that as a result of the rear
end collision between Sherman Cook's vehicle and Rebecca LaMonte's vehicle
on May 30, 1997, at approximately 12:30 p.m., she developed Fibromyalgia.
REQUEST FOR ADMISSION NO. 22: 	Please admit or deny that Rebecca LaMonte
was in no way responsible, nor negligent in any manner, for the rear end collision
in which you were involved on May 30, 1997, at approximately 12:30 p.m.
8

No. 69115-5-1/9
On March 14, LaMonte filed "Plaintiffs Motion to Deem Requests for Admission
Propounded to Defendants Westerfield Admitted." In support, LaMonte's attorney
submitted a copy of the proof of service and requests for admission. 	The declaration of
service states that on April 8, 2000, Westerfield was served at his residence with a copy
of the summons and amended complaint, order setting civil case schedule,
interrogatories, requests for production of documents, and requests for admission.
Westerfield opposed the motion to deem the requests for admission admitted.
Westerfield submitted a declaration from his attorney stating that the first time he
received any notice "that Requests for Admissions directed to Mr. Westerfield existed"
was on March 9, 2012 when LaMonte's attorney called him to ask "whether or not we
could show proof ofservice ofanswers to plaintiffs Requests for Admission, which I
was informed were served on April 8, 2000." The attorney states that after conducting
"an extensive and diligent search ofthe files and records in the undersigned's office," he
"found no evidence or indication that [the insurance company or] our office ever
received a copy of the Requests for Admission Propounded to Defendant Westerfield."
Westerfield argued LaMonte waived her right to rely on the admissions.
Westerfield argued that the court should permit withdrawal of the admissions under CR
36(b):
Throughout the entirety of these proceedings, the attorneys for plaintiff
have conducted themselves as ifthe April 4, 2000 request for admissions
never existed but now seek to impose a technical default on the
defendants some 12 years later.
Westerfield pointed out that he unequivocally denied liability in his answer to the
amended complaint. Westerfield also argued that LaMonte's decision to retain accident
reconstruction expert Bryan Jorgensen and his 2002 report demonstrated liability was

No. 69115-5-1/10
disputed:
Clearly, by January of 2002, both plaintiff and defendant Westerfield had
established that there were significant conflicts with regard as to how the
accident occurred, and both parties had retained expert witnesses to
advocate for both party's positions.
In addition, Westerfield submitted a copy of the May 31, 2000 letter from
LaMonte's attorney addressing the outstanding answers to interrogatories but making
no reference to requests for admission. 	The May 31 letter from LaMonte's attorney
states:
As you may recall, this office forwarded interrogatories to your
offices, on behalf of the Defendants Westerfield, on or about April 4, 2000.
To date, we have not received the Defendants' answers to those
interrogatories. Would you please provide me with a status of the
answers to the interrogatories and an approximate date of when we can
expect to receive the answers.
Westerfield also notes that while "Request for Admission No. 21" asked
Westerfield to admit that LaMonte developed fibromyalgia as a result of the collision,
during the 2009 Frye3 hearing on the causation of fibromyalgia, "plaintiff was completely
silent as to Request for Admission No. 21."
With the exception ofthe request that Westerfield admit he was liable for
LaMonte's injuries and that as a result of the collision she developed fibromyalgia,4 the
court granted LaMonte's motion to deem the requests for admission admitted.
On May 7, LaMonte and Westerfield filed an "Amended Joint Statement of
Evidence." LaMonte identified accident reconstruction experts Jorgensen and Ward
3Frve v. United States. 293 F. 1013,1014 (D.C. Cir. 1923) (evidence derived from a scientific
theory or principle is admissible only if the theory or principle has achieved general acceptance in the
relevant scientific community).
4 REQUEST FOR ADMISSION NO. 19 states that "you are liable forthe injuries sustained by
Rebecca LaMonte as a result ofthe rear end collision between Sherman Cook's vehicle and your vehicle
on May 30, 1997." REQUEST FOR ADMISSION NO. 21 states that "as a result of the rear end collision
..., [LaMonte] developed Fibromyalgia."
10

No. 69115-5-1/11
Bruington. Westerfield identified accident reconstruction expert Charles Lewis.5 On
May 7, Westerfield also filed a "Motion to Withdraw or Amend Plaintiff's Requests for
Admissions to Defendants Westerfield Deemed Admitted." Westerfield argued the
failure to allow withdrawal of the admissions would deny Westerfield the opportunity to
present a defense on the merits and LaMonte had not established prejudice.
Westerfield's attorney argued, in pertinent part:
From the inception of this case, the subject matter of these
Requests has been denied or challenged, as the claims against Mr.
Westerfield have been defended. The so-called two impact theory was
alleged in plaintiff's Complaint and was denied in defendants' Answer. 	Mr.
Westerfield answered interrogatories that described the sequence of
events involved in the accident, to include the swerving of the van in front
of him which blocked his view of Cook's and plaintiff's vehicles.
Westerfield retained and disclosed accident reconstructionist Richard
Chapman in 2001, who opined that the physical evidence did not". . .
support a conclusion that the Cook Volvo struck the rear of the LaMonte
Chrysler two separate times." Understanding that how this accident
occurred was hotly contested and very much at issue, plaintiff, through her
attorneys, retained and disclosed accident reconstruction expert Bryan
Jorgensen to challenge the opinions offered by Mr. Chapman.
In late 2011, plaintiff disclosed accident reconstruction expert Ward
Bruington. 	In the disclosure for Mr. Bruington, it was his opinion that Mr.
Cook's vehicle originally impacted Ms. LaMonte's vehicle, and that "[i]t is
then likely that Mr. Westerfield rear ended Mr. Cook's vehicle driving the
Cook vehicle back into the LaMonte vehicle... ." It is further worth noting
that even in plaintiff[s] Second Amended Plaintiffs Witness and Exhibit
List, plaintiff still includes Mr. Bruington and Mr. Jorgensen as witnesses to
be called at trial. For the 12 some years that this case has been pending,
the details as to how this accident occurred, and whether the actions of
Mr. Westerfield has been hotly contested, and plaintiff has proceeded
throughout the entirety of this case as if her April 4, 2000 Requests for
Admissions never existed.161
While Westerfield's motion to withdraw or amend the requests for admission was
pending, the case was reassigned to another judge for trial. 	On May 15, the judge
heard argument on the pending motion. The court granted Westerfield's motion to
5Westerfield's previous accident reconstruction expert Chapman died in November 2011.
6 (Footnotes omitted) (alterations in original).
11

No. 69115-5-1/12
withdraw the admissions by default. The court expressly found that LaMonte had not
established prejudice.7 The court also entered an order dismissing Cook as a party to
the lawsuit.
At the beginning of the trial, LaMonte argued she was entitled to use the Cook
admissions during opening statement and to rebut the testimony of the defense
accident reconstruction expert. Westerfield argued the admissions were inadmissible
because Cook was no longer a party to the action. The court ruled that the Cook
admissions were hearsay and LaMonte could not refer to the admissions during
opening statement or in her case in chief.
During the three-week jury trial, more than 20 witnesses testified including
LaMonte, Westerfield, and accident reconstruction experts Jorgensen, Bruington, and
Lewis.
LaMonte testified that as she was approaching the I-5 overpass, she put on the
brakes and stopped after she suddenly saw "brake lights, all the brake lights were
stopping in front of me." 	LaMonte said that she "was hit from behind, the air bag
deployed, I was hit again, and the last thing I remember is my head falling into the
deflated air bag." On cross-examination, LaMonte admitted that in a 1997 recorded
interview, she said that she could not be sure whether there were two impacts.
Before calling accident reconstruction expert Jorgensen, LaMonte argued she
was entitled to introduce the Cook admissions because Jorgensen relied on the
7The court stated, in pertinent part:
I have significant concerns about the appellate issues at play here, and I have a
significant concern whether Judge McCullough's decision will be reversed for abuse of
discretion in failing to have an adequate record of prejudice to the plaintiff 	I think at
this point it would be an abuse of discretion for me not to consider the prejudice issue
and what I think is an evidentiary deficiency in terms ofthe lack of prejudice.
12

No. 69115-5-1/13
admissions in forming his opinion.
The court ruled that LaMonte's expert could testify about the Cook admissions.
The court instructed the jury that the admissions were Cook's and not Westerfield's.
Jorgensen testified that in his opinion, "Westerfield strikes Cook and Cook strikes
LaMonte again, but on the corner this time." 	LaMonte's attorney displayed the Cook
admissions and asked Jorgensen to read the admissions and to explain the significance
of the admissions. Jorgensen testified that he relied on Cook's written statement to the
police and Cook's response to the requests for admission. 	Jorgensen testified, in
pertinent part:
[B]ecause Richard Westerfield's vehicle collided with [Cook's] vehicle,
[Cook's] vehicle collided with the rear ofthe LaMonte vehicle. And that
was admitted. And that - that was important as a cause and effect
relationship to the accident event.
On cross-examination, Jorgensen admitted he did not review Cook's response to the
requests for admission until two weeks before trial.
LaMonte's other accident reconstruction expert Bruington also testified that after
Westerfield's car hit Cook, Cook's car hit LaMonte's car "a second time." Bruington
testified, in pertinent part:
[Mr. Cook] can't stop in time and crashes into the back of Ms. LaMonte's
Chrysler.
And then behind Mr. Cook there's a mention of a van. This van
isn't involved in the crash. 	It - it turns off and gets to the shoulder of the
road. And behind that van is Mr. Westerfield driving a Geo. 	And then he
crashes into Mr. Cook's Volvo. 	And that causes Mr. Cook's Volvo to crash
into Ms. LaMonte's Chrysler a second time.
Westerfield testified that on the day of the accident, there was heavy traffic and
the "road spray was really bad." Westerfield said that when his car hit Cook's, "it
shoved [Cook] about three feet, maybe, into the I'll call it the left lane, and at the same
13

No. 69115-5-1/14
time [Cook] accelerated, continuing on in the left lane."
Defense accident reconstruction expert Lewis testified that the impact of
Westerfield's car did not cause Cook's car to hit LaMonte's car a second time. 	Lewis
testified, in pertinent part:
The 1,600 pound Geo Metro that Mr. Westerfield was operating
then collided with the rear of [Cook's] Volvo and shoved it into the
oncoming lane partially....
The Geo Metro did not drive the Volvo into the rear of the LaMonte
vehicle and did not cause a second impact between the Volvo and
[LaMonte's] Chrysler.
During cross-examination, Lewis testified that in reaching his conclusion, he relied in
part on the testimony Cook gave in the perpetuation deposition that his car ended up on
the side of the road.
Before redirect, Westerfield asked for permission to play excerpts from the
videotaped perpetration deposition of Cook. After reviewing the videotape ofthe
deposition, the court ruled Westerfield could play excerpts of the perpetration
deposition. The court ruled the videotaped deposition was "clearly" a perpetuation
deposition and Cook's deposition testimony was not contrary to his admissions—Cook
"just says he can't remember, which is different than it being contrary" to the admission.
The court also ruled that during the cross-examination of Lewis, LaMonte had opened
the door to the deposition testimony.
Westerfield played excerpts ofthe videotaped perpetration deposition during the
redirect of Lewis. 	In the first deposition, Cook states he is not sure whether Westerfield
hit his car before or after he hit LaMonte.
QUESTION: 	Do you know whether or not Mr. Westerfield struck
the rear of your car before or after you initially made impact with the
LaMonte vehicle?
14

No. 69115-5-1/15
ANSWER: 	I have no idea. 	It was too quick, too fast to - 	I - 	I
have no idea.
In the second deposition, Cook stated he did not know whether Westerfield's car
knocked him into LaMonte's car. 	Cook testified, "I don't remember the sequence."
The written jury instructions reiterate that the answers to the requests for
admission of nonparty Cook do not bind Westerfield. 	Jury "Instruction No. 20" states:
Non-party entity Sherman Cook's Answers to Requests for Admission
served by plaintiff have been admitted for a limited purpose. These
answers may be considered by you for the limited purpose of forming the
basis of the experts' opinions, and for no other purpose. These answers
are binding on Sherman Cook, but defendant Westerfield is not bound by
Cook's answers.
Jury "Instruction No. 18" states that if the juryfinds more than one entity
negligent, it should determine what percentage of negligence was attributable to each
entity. The instruction states that entities may include Westerfield and nonparty Cook.
Jury Instruction No. 18 states:
If you find that more than one entity was negligent, you must
determine what percentage of the total negligence is attributable to each
entity that proximately caused the injury to the plaintiff. The Court will
provide you with 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 apportion damages, if any.
Entities may include the defendant Richard Westerfield and non
party Sherman Cook.
15

No. 69115-5-1/16
The jury found Westerfield and Cook were negligent but that only nonparty
Cook's negligence was a proximate cause of the injury to LaMonte.8 The court entered
a judgment on the verdict dismissing the claims against Westerfield with prejudice.
ANALYSIS
LaMonte argues the trial court erred by (1) granting Westerfield's motion to
withdraw the admissions by default under CR 36(b), (2) ruling Cook's admissions were
hearsay, and (3) allowing Westerfield to introduce into evidence testimony from the
perpetuation deposition of Cook.
1. 	Withdrawal of Admissions
LaMonte asserts the court abused its discretion in allowing Westerfield to
withdraw the admissions under CR 36(b).9 We review the trial court's decision on a
motion to withdraw or amend admissions under CR 36 for an abuse of discretion.
Santos v. Dean, 96 Wn. App. 849, 857-58, 982 P.2d 632 (1999). A trial court abuses its
8The special verdict form states, in pertinent part:
We, the jury, answerthe questions submitted by the court as follows:
QUESTION NO. 1: Were any of the following negligent?
(Answer "yes" or "no" after the name ofthe defendant and each entity not party to
this action.)
Answer: 	Yes 	No
Defendant, Richard Westerfield 	_X_
Non-Party, Sherman Cook 	X
(If you answer Question No. 1 "no" as to the defendant, sign and return this
verdict. If you answer Question No. 1 "yes" as to the defendant, then answer Question
No. 2.) QUESTION NO. 2: Was such negligence a proximate cause of injury to the
plaintiff?
(Answer "yes" or "no" after the name ofthe defendant and the name ofeach
entity, ifany, found negligent by you in Question No. 1.)
Answer: 	Yes 	No
Defendant, Richard Westerfield 	_X_
Non-Party, Sherman Cook 	_X_
9 Preliminarily, LaMonte contends the trial judge did not have the authority to reconsider the
decision granting her motion to deem admitted the requests for admission propounded to Westerfield.
We disagree. Atrial judge has the authority to reconsider a ruling made by another judge. In re Estate of
Jones 170 Wn. App. 594, 605-06, 287 P.3d 610 (9m?y rpp also Adcox v. Children's Orthopedic Hosp. &
Med. Ctr.. 123 Wn.2d 15, 37, 864 P.2d 921 (1993). The record establishes that Westerfield's motion to
withdraw or amend the requests for admission was pending when the case was transferred for trial.
16

No. 69115-5-1/17
discretion when its decision is manifestly unreasonable or is based on untenable
grounds. 	State ex rel. Carroll v. Junker. 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
Requests for admission are deemed conclusively established under CR 36(b)
unless the court permits amendment or withdrawal of the admission. 	CR 36(b) states:
Effect of Admission. Any matter admitted under this rule is conclusively
established unless the court on motion permits withdrawal or amendment
of the admission. 	Subject to the provisions of rule 16 governing
amendment of a pretrial order, the court may permit withdrawal or
amendment when the presentation of the merits of the action will be
subserved thereby and the party who obtained the admission fails to
satisfy the court that withdrawal or amendment will prejudice him in
maintaining his action or defense on the merits. Any admission made by a
party under this rule is for the purpose of the pending action only and is
not an admission by him for any other purpose nor may it be used against
him in any other proceeding.
The purpose of CR 36 is to" 'obtain admission of facts as to which there is no
real dispute and which the adverse party can admit cleanly, without qualifications.'"
Reid Sand & Gravel. Inc. v. Bellevue Props.. 7 Wn. App. 701, 704, 502 P.2d 480 (1972)
(quoting Weyerhaeuser Sales Co. v. Holden. 32 Wn.2d 714, 726, 203 P.2d 685 (1949)).
" 'Accordingly, requests for admissions as to central facts in dispute are beyond the
proper scope of the rule.'" 	Reid, 7 Wn. App. at 704 (quoting Pickens v. Equitable Life
Assurance Soc'v of the U.S.. 413 F.2d 1390, 1393 (5th Cir. 1969)).
CR 36(b) permits the court to exercise its discretion to grant a motion to withdraw
admissions only if"presentation of the merits of the action will be subserved," and the
party who obtained the admission fails to show withdrawal will result in prejudice "in
maintaining his action or defense on the merits." Hadlev v. United States, 45 F.3d 345,
1348 (9th Cir. 1995); Santos, 96 Wn. App. at 858-59; see also Asea. Inc. v. S. Pac.
17

No. 69115-5-1/18
Transp. Co., 669 F.2d 1242, 1248 (9th Cir. 1981).10
The first prong of the test is met when upholding the admissions would
"practically eliminate any presentation of the merits of the case." 	Hadlev. 45 F.3d at
1348. 	LaMonte concedes the first prong is met. 	We accept the concession as well
taken. The admissions are contrary to the position Westerfield steadfastly maintained
since 2000.
LaMonte has the burden to establish the prejudice prong of the test. 	Hadlev, 45
F.3d at 1348. 	"The prejudice contemplated by Rule 36(b) is 'not simply that the party
who obtained the admission will now have to convince the factfinder of its truth.'"
Hadlev, 45 F.3d at 1348 (quoting Brook Vill. N. Assocs. v. Gen. Elec. Co., 686 F.2d 66,
70 (1st Cir. 1982)).11 	"The prejudice contemplated by Rule 36(b) 'relatesto the difficulty
a party may face in proving its case'[,] 'e.g., caused by the unavailability of key
witnesses, because of the sudden need to obtain evidence' with respect to the
questions previously deemed admitted.'" Santos. 96 Wn. App. at 859, 860 (quoting
Fed. Deposit Ins. Corp. v. Prusia, 18 F.3d 637, 640 (8th Cir. 1994); Hadlev, 45 F.3d at
1348).
" 'The necessity of having to convince the trier of fact of the truth of a matter
erroneously admitted is not sufficient.'" Santos, 96 Wn. App. at 859 (quoting Prusia, 18
F.3d at 640). 	Under CR 36(b), the trial court must "focus on the prejudice that the
nonmoving party would suffer at trial." Conlon v. United States, 474 F.3d 616, 623 (9th
10 In construing CR 36, the court ofappeals has looked to federal case law as persuasive
authority. Santos, 96 Wn. App. at 859.
11 We note Hadlev misquotes Brook Village: however, the error does not change the meaning of
the quote. The correct Brook Village language states, "The prejudice contemplated by the Rule is not
simply that the party who initially obtained the admission will now have to convince the factfinder of its
truth." Brook Vill.. 686 F.2d at 70 (emphasis added).
18

No. 69115-5-1/19
Cir. 2007).12
Here, the court ruled that LaMonte did not establish prejudice under CR 36(b).
The court ruled, in pertinent part:
[T]he plaintiff has been on notice for years about the defense theory of the
case and the plaintiff is represented by two able counsel, who are
obviously prepared to rebut the defense case.
So it's really hard to say that the plaintiff is prejudiced by having to
present their case . . . because they're fully prepared to do that.
... I am a little concerned about the kind of the clear policy in the
appellate case law favoring resolution on the merits as opposed to - and it
would be a completely different matter if somebody had affirmatively
answered X .. . and then they were stuck with the admission.
But what we have here is a request for admission which apparently
wasn't forwarded to counsel, then went unanswered. 	So it was deemed
admitted, a significant period of time went by. . ..
Clearly there was originally a denial on several bases in the original
answer and actually motion practice and multiple instances in which the
plaintiff was put on notice that liability was contested on various grounds.
The record supports the determination that LaMonte did not meet her burden of
showing that withdrawal of the default admissions resulted in " 'the unavailability of key
witnesses'" or the " 'sudden need to obtain evidence with respect to the questions
previously deemed admitted.'" Santos, 96 Wn. App. at 859 (quoting Hadlev, 45 F.3d at
1348). When the case was initially scheduled for trial on February 25, 2002, LaMonte
identified an accident reconstruction expert witness to testify at trial. 	In the Amended
Joint Statement of Evidence filed one week before the scheduled trial date in May 2012,
LaMonte identified accident reconstruction experts Bruington and Jorgensen.
Nonetheless, LaMonte argues that because the motion to withdraw the
admissions was made at the beginning of trial, the court erred in granting Westerfield's
motion to withdraw the default admissions under CR 36(b). 	LaMonte relies on Brook
12 (Emphasis added.)
19

No. 69115-5-1/20
Village to argue the court erred in failing to evaluate the prejudice prong under CR 36(b)
under a manifest injustice standard. 	Brook Village is distinguishable.
In Brook Village, plaintiff Brook Village filed a lawsuit against General Electric
(GE) alleging modular housing units were defective, and propounded requests for
admission to GE. 	Brook Vill.. 686 F.2d at 68. 	GE responded to the requests for
admission nine months later. 	Brook Village immediately moved to strike the responses
and deem as admitted the requests for admission. 	The court granted the motion.
Brook Vill., 686 F.2d at 69. 	GE filed repeated motions asking the court to reconsider
and permit withdrawal of the admissions. 	The court denied the motions for
reconsideration and included the admission in the pretrial Federal Rule of Civil
Procedure (FRCP) 1613 order. 	Brook Vill.. 686 F.2d at 69, 71.
At the conclusion of the bench trial, the court found GE liable and assessed
damages against GE. However, the court did not give conclusive effect to the
admissions on damages. 	Brook Vill.. 686 F.2d at 69-70. 	Instead, the court relied on the
testimony at trial. Brook Vill.. 686 F.2d at 69.
On appeal, the First Circuit reversed, holding the trial court abused its discretion
by ignoring the admissions. 	Brook Vill., 686 F.2d at 73-74. The court held, "[A] party
who obtains an admission by default does not waive his right to rely thereon by
presenting evidence at trial that overlaps the matters controlled by the admission."
Brook Vill.. 686 F.2d at 72. 	The court concluded that because the admissions were part
of the FRCP 16 pretrial order, the trial court could amend the pretrial order only to
prevent manifest injustice; "a more restrictive standard" governs "a request to avoid the
13 FRCP 16(e) provides, in pertinent part: "The court may modify the order issued after a final
pretrial conference only to prevent manifest injustice."
20

No. 69115-5-1/21
effect of an admission once trial [begins]." 	Brook Vill., 686 F.2d at 71.
Here, unlike in Brook Village, LaMonte did not promptly file a motion to deem the
requests for admission admitted after serving them on Westerfield in April 2000.
Instead, unlike in Brook Village. LaMonte never mentioned the requests for admissions
until 12 years later before the trial in May 2012. 	Further, the court granted the motion to
withdraw the admissions by default under CR 36(b) before opening statements and the
presentation of evidence. 	See Hadlev, 45 F.3d at 1348 ("Courts are more likely to find
prejudice when the motion for withdrawal is made in the middle of trial."); 999 v. C.I.T.
Corp.. 776 F.2d 866, 869-70 (9th Cir. 1985) (affirming denial of motion to withdraw
admissions in "the middle of trial" when plaintiff had "nearly rested its case" where
plaintiff relied heavily on admission and withdrawal did not subserve merits); Pedroza v.
Lomas Auto Mall. Inc., 258 F.R.D. 453, 467 (D.N.M. 2009) (plaintiffs met burden of
establishing that withdrawal would prejudice them because parties had longstanding
understanding that subject matter of admission was undisputed).
But even if a manifest injustice standard applied, the record supports the decision
to allow Westerfield to withdraw the default admissions under CR 36(b). There is no
dispute that Westerfield consistently denied liability, the parties engaged in lengthy
discovery, and the parties retained expert witnesses to testify on the contested issues of
liability and damages.
2. 	Cook Admissions
LaMonte also argues the court erred by ruling the Cook admissions were
hearsay and precluding her from referring to the admissions in her opening statement.
This court reviews a trial court's evidentiary decision for abuse of discretion. 	Sintra. Inc.
21

No. 69115-5-1/22
v. City of Seattle. 131 Wn.2d 640, 662-63, 935 P.2d 555 (1997). Abuse of discretion
occurs only when no reasonable person would take the view adopted by the trial court.
Crescent Harbor Water Co. v. Lvseng, 51 Wn. App. 337, 344, 753 P.2d 555 (1988).
Admissions under CR 36 are subject to the rules of evidence. Walsh v. McCain Foods
Ltd.. 81 F.3d 722, 726 (7th Cir. 1996) (citing 8A Charles Alan Wright, et. al, Federal
Practice and Procedure: Civil 2d § 2264, at 571-72 (1994)); see ajso 3A Karl B.
Tegland, Washington Practice: Rules Practice CR 36, at 832 (6th ed. 2013).
ER 801(d)(2) is an exception to the hearsay rule that allows the introduction of
admissions of a party opponent. Walsh. 81 F.3d at 726 (quoting 8A Wright, Federal
Practice and Procedure: Civil 2d § 2264, at 571-72 (" 'It is only when the [CR 36]
admission is offered against the party who made it that it comes within the exception to
the hearsay rule for admissions of a party opponent.'")). 	Because Cook was not a party
at the time of trial, the hearsay exception for admissions of a party opponent under ER
801(d)(2) did not apply. See 5B Karl B.Tegland, Washington Practice: Evidence
Lawand Practice § 801.34, at 387 (5th ed. 2007) (ER 801(d)(2) "does not authorize the
introduction of statements by, or on behalf of, someone who is not a party to the present
proceeding."); 5BTegland, Washington Practice: Evidence Law and Practice §
801.50, at 422 ("If a case begins as a multiparty case, but one of the parties is removed
from the case by dismissal, ... the admissions of the party who has been removed are
inadmissible against the party who remains in the case."). The court did not err by
ruling the admissions of nonparty Cook were hearsay.
In any event, the trial court allowed LaMonte's accident reconstruction expert
Jorgensen to testify about the Cook admissions. 	During cross-examination of
22

No. 69115-5-1/23
Westerfield's accident reconstruction expert, LaMonte also asked about the Cook
admissions and referred to the Cook admissions in closing argument. 	During closing
argument, LaMonte argued that Cook admitted there was a second impact to her car:
"[Y]ou have Mr. Cook's admission that 'I was knocked into LaMonte because
Westerfield rear-ended me.'" 	In rebuttal, LaMonte told the jury, "I want to remind you
that this is Mr. Cook's admission that [']because Richard Westerfield[ ]collided with
[Cook's] vehicle - [Cook's] vehicle collided with the rear-end of Becky LaMonte's
vehicle.f ]"
3. 	Admission of Perpetuation Deposition Testimony
LaMonte contends the court erred by permitting Westerfield to introduce excerpts
from the perpetuation deposition of Cook into evidence. 	LaMonte asserts the deposition
testimony contradicts the responses to the requests for admission.14
After viewing videotapes of the perpetuation deposition, the court concluded the
deposition testimony did not contradict Cook's admissions.15 The record supports the
court's determination. 	In response to the requests for admission, Cook admitted that
"because Richard Westerfield's vehicle collided with [his] vehicle, [his] vehicle collided
with the rear end of Rebecca LaMonte's vehicle." 	In his deposition, Cook states that he
could not be sure about the sequence of the events of the accident and that his car
came to a rest on the left-hand shoulder of the road.
14 We deny the motion to supplement the record on appeal with the videotapes ofthe Cook
deposition. The court may direct transmittal of additional clerk's papers and exhibits "[i]f the record is not
sufficiently complete to permit a decision on the merits of the issues presented for review." RAP 9.10.
Here, the report of proceedings contains a transcript of the deposition.
15 Under CR 32(a)(3), "[t]he deposition of a witness, whetheror not a party, may be used byany
party for any purpose if the court finds ... that the witness is dead." ER 804(b)(1) provides that the
hearsay rule is inapplicable to deposition testimony taken in the courseofthe same proceeding if the
declarant is unavailable. A declarant is unavailable if he is dead. ER 804(a)(4).
23

No. 69115-5-1/24
The record also supports the ruling that LaMonte opened the door to introduction
of the perpetuation deposition testimony. See State v. Warren, 134 Wn. App. 44, 64-65,
138 P.3d 1081 (2006). For example, during the cross-examination of accident
reconstruction expert Lewis, LaMonte asked whether Lewis relied on Cook's deposition
testimony:
Q. 	... [W]e have very little evidence as to where the cars went.
Isn't that true?
A. 	I believe just the testimony of the people who were in the
vehicles.
Q. 	Right. 	And very little evidence as to what really happened to
the vehicles after impact. 	Isn't that fair?
A. 	No physical evidence. Just Mr. Cook's description of his
final position on the opposite shoulder.
Q. 	Okay. Would it be fair to say that in your simulation you did
not consider the admission, ["]please admit or deny that on May 30,
1997["] - and this is admission to Mr. Cook- ["]at approximately 12:30
p.m., because Richard Westerfield's vehicle collided with your vehicle,!"]
being Mr. Cook's vehicle, ["]your vehicle collided with the rear end of
Rebecca LaMonte's vehicle.!"] You didn't consider that, correct?
A. 	I consider everything. I consider all testimony.
Q. 	You ignored this, though --
A. 	No.
Q. 	- for your simulation?
A. 	No. 	I don't ignore anybody's testimony. 	I try to see if it fits
the physical facts and then I come up with my analysis. And if this jury
believes that Mr. Cook has more information and, you know, ifthis jury
believes that declaration is accurate, then they will find accordingly.
Q. 	In doing your simulations -
A. 	Yes.
Q. 	- you ran your different scenarios?
A. 	Yes.
Q. 	You did not run a scenario that addressed Mr. Bruington's
set of facts?
A. 	No. 	He came up with that on his own. 	I didn't know it
existed until I read his deposition and saw his simulation.
Q. 	Right. 	But you did know that Mr. Cook in his admission had
said that he was hit by the Geo into the LaMonte vehicle?
A. 	I did.
24

No. 69115-5-1/25
In sum, we conclude the trial court did not abuse its discretion by allowing
withdrawal of the admissions by default under CR 36(b), ruling the admissions of
nonparty Cook were inadmissible, and allowing Westerfield to introduce excerpts of the
perpetuation deposition, and affirm.
SUO^WOQo^-t
WE CONCUR:
25