Full Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON NOAH KEATS SALL, an individual, No. 88709-2-I Appellant, DIVISION ONE v. KAVITA AVULA, an individual; and UNPUBLISHED OPINION THERAPIST BEYOND BORDERS LLC, a Washington limited liability company, Defendants, JACK M. RINGEL, an individual; and BRISTLECONE PSYCHOTHERAPY AND WELLNESS, LLC, a Washington limited liability company, Respondents. SMITH, J. — From December 2018 to January 2019, Noah Keats Sall (Keats) received group therapy sessions from Kavita Avula and Jack Ringel. In 2022, Keats reached out to Avula for his client records. Upon review of his clinical notes, Keats believed that the notes were altered when he requested them. Keats initiated a complaint against Avula and Ringel for negligent infliction of emotional distress, outrage, and civil conspiracy. A jury unanimously found that Keats did not prove by a preponderance of the evidence that Ringel created Keats’s clinical record in 2022 or later. The court then entered a judgment on the verdict dismissing Keats’s action with No. 88709-2-I/2 prejudice. Keats appealed. Because the 2022 creation date was an essential fact to Keats’s theory of his case and the jury needed to find that it was so by a preponderance of the evidence in order to rule in his favor, we affirm. FACTS Background Avula and Ringel are licensed therapists in Washington. In November 2018, Keats had an initial session with Avula and Ringel. From December 2018 to January 2019, Keats then participated in four group therapy sessions. On January 15, 2019, Keats notified Avula that he decided to withdraw from group therapy. On January 7, 2022, Keats e-mailed Avula to share his concerns about another therapist.1 In April 2022, Keats reached out to Avula for his client records but then retracted his request. On May 24, 2022, Keats requested his client records again. Avula and Ringel electronically sent Keats his records on June 1, 2022. Keats reviewed the clinical notes and claimed there were errors and gross misstatements. Because of the alleged inaccuracies, Keats claimed he had a strong reason to believe the notes were created in 2022, not in 2019. 1 In February 2020, Keats and his girlfriend, who also sought therapy from Avula, ended their relationship. Keats’s former girlfriend sought therapy from another therapist. Keats was concerned that the other therapist disclosed private, confidential, and personal information about Keats to his former girlfriend. 2 No. 88709-2-I/3 On September 6, 2023, Keats initiated a complaint against Avula and Ringel2 for negligent infliction of emotional distress, outrage, and civil conspiracy. Discovery In November 2023, in Keats’s first set of interrogatories to Ringel, interrogatory no. 13 requested in part “state the date(s) upon which You and/or Avula edited or modified such Clinical Notes.” In Ringel’s answer, he indicated that he took handwritten notes directly after the sessions with [Keats] to remember important details—particularly for the individual assessment visit. [Ringel] then created a document for patient’s clinical notes and completed the type-written notes thereafter. It is believed at this time that the type-written document was created in mid-January 2019. Ringel also stated that the handwritten notes would have been shredded because they were obsolete. Request for production (RFP) no. 2 sought “all Clinical Notes for Your and/or Avula’s performance, provision, commission, and/or administration of Therapy Services to Plaintiff, including any draft versions of such Clinical Notes.” Ringel and Avula produced their clinical notes in response to RFP No. 2 in Adobe PDF form. Ringel’s records for Keats indicated “of note, the record is kept in paper form.” (Emphasis omitted.) In January 2024, the court denied the defendants’ motion for summary judgment to dismiss Plaintiff’s causes of action for intentional infliction of 2 Keats also sued Avula’s and Ringel’s therapy companies, respectively, Therapist Beyond Borders LLC and Bristlecone Psychotherapy and Wellness LLC. 3 No. 88709-2-I/4 emotional distress and civil conspiracy, and reserved as to the cause of action for negligent infliction of emotional distress. The court stated that because the clinical notes were written documents, they might have some metadata to prove when the document was created for the first time. During discovery, Ringel, in separate responses, disclosed that the Microsoft Word version of Keats’s client notes could be stored on three different devices: a 2012 laptop, a 2019 laptop, and an external storage device. Ringel originally thought that Keats’s clinical notes were only on his 2019 laptop but later discovered that the notes were also on his 2012 laptop and external storage device. In March 2024, Ringel’s counsel hired Metadata Forensics, LLC, to compile a forensic analysis report for the Microsoft Word version of Keats’s clinical notes on Ringel’s 2019 laptop. Before giving the 2019 laptop to Metadata Forensics, Ringel deleted files on other patients and personal information. Metadata Forensics’ report concluded that the clinical notes were (1) created on January 14, 2019, (2) last modified on January 23, 2019, and (3) last accessed on January 1, 2023.3 Keats retained his own expert, Robert Fried, who analyzed the 2012 and 2019 laptops. Fried’s findings on the clinical notes’ creation date, last modified date, and last accessed date were consistent with Metadata Forensics’ findings. Fried opined that “although file system and application metadata may provide information about a file, it can be easily altered and is generally unreliable.” Fried concluded that (1) the date and time on the laptop were inaccurate at the time of 3 Although the report was last accessed on January 1, 2023, the report noted that “no modifications were conducted as the modified time remained 1/23/2019.” 4 No. 88709-2-I/5 imaging on January 6, 2023, (2) certain events that occurred on the laptop hindered his ability to perform a complete forensic analysis,4 and (3) the metadata associated with Keats’s health care record is not reliable and cannot be used “to definitively state whether it accurately reflects any dates and times associated with [Keats’s] healthcare record.” Ringel then retained a second expert, ArcherHall, LLC, who examined Ringel’s 2012 laptop, his 2019 laptop, and his external storage device. In reviewing the 2012 laptop and external storage device, ArcherHall concluded that it “identified no evidence of date and time inaccuracies, such as those described by Mr. Fried’s report regarding the [2019 laptop].” Ringel’s Testimony In May 2025, at trial, Ringel testified that during discovery, he did not mention the Microsoft Word version of Keats’s clinical notes, “I was asked about these records, and we provided the PDF copy at that point. Once again, I was under the impression, now I understand the mistake and as far as you all are concerned, but was under the impression that that was sufficient, because that was the record.” When Keats’s counsel asked Ringel about the beginning of the lawsuit, and whether he believed that the Microsoft Word versions of his clinical notes were on his 2012 computer, Ringel replied, “at the time, for the first part this lawsuit, that was not my understanding. As I have said, my good faith understanding at the time was the computer we initially provided to your expert 4 Fried identified a “large volume of system events with timestamps of January 1, 2023.” 5 No. 88709-2-I/6 and ours I thought was the computer that these notes were produced on.” Ringel also testified that before he sent this laptop to the expert, he clicked on Keats’s clinical notes file to show basic information about the file, but he did not open it. Special Verdict Form and Jury Instructions During the court’s discussion about the verdict form, Keats’s counsel proposed a special verdict form with the question: “Do you find Defendant has proved by a preponderance of the evidence that Defendants created Plaintiff’s clinical record in 2019[?]” Ringel’s counsel disagreed with the proposed verdict form that instructed the jury that it is the defense’s burden to prove when the notes were created. Ringel explained that he was not asserting the affirmative defense of health care and professional duty and therefore had no burden. Rather, because Keats sued under a common law tort claim, Ringel asserted that it was Keats’s burden to show that this was not health care, and Keats had done so, in part, by indicating that the clinical notes were created in 2022, which was after the clinical relationship ended. Ultimately, the court’s verdict form to the jury asked, “Do you find the plaintiff has proved by a preponderance of the evidence that the defendants created the plaintiff’s Clinical Record in 2022 or later?” Later, Keats’s counsel moved for a jury instruction for spoilation about Ringel deleting a copy of Keats’s clinical notes. The court denied this instruction, because it could not “conclude this evidence would have been relevant.” The court highlighted Ringel’s testimony that he deleted several items on his laptop, 6 No. 88709-2-I/7 and his biggest concern was protecting sensitive files.5 Further, the court stated that it would be “up to the jury to decide whether or not [Ringel is] more credible or [Keats’s expert] was more credible.” The jury unanimously found that Keats did not prove by a preponderance of the evidence that Ringel created Keats’s clinical record in 2022 or later. The court entered a judgment in favor of Ringel. Keats appealed. ANALYSIS Special Verdict Form Keats asserts that the court erred when it adopted question no.1 in the special verdict form and it improperly shifted the burden of proof. This court reviews special verdict forms under this same standard as jury instructions. Capers v. Bon Marche, 91 Wn. App. 138, 142, 955 P.2d 822 (1998). “Alleged errors of law in jury instructions [are reviewed] de novo.” State v. Fehr, 185 Wn. App. 505, 514, 341 P.3d 363 (2015). Under CR 49(a), the court may submit a special verdict form to the jury with “written questions susceptible of categorical or other brief answer or may submit written forms of the several special findings which might properly be made under the pleadings and evidence.” Courts may also use “other method[s] of submitting the issues and requiring the written findings thereon as it deems most appropriate.” CR 49(a). “A special verdict form is sufficient if it allows the parties to argue their theories of the case, does not mislead the jury, and properly 5 The court noted that Ringel stated, “I deleted sensitive stuff” and “I wanted to remove private health information from other clients and personal information.” 7 No. 88709-2-I/8 informs the jury of the law to be applied.” City of Bellevue v. Raum, 171 Wn. App. 124, 145, 286 P.3d 695 (2012). The special verdict form must present the issues to the jury in a fair manner. Capers, 91 Wn. App. at 142. Affirmative Defense and Healthcare Claim Keats asserts that it was Ringel’s burden of proof to prove that the clinical notes were created in 2019 because establishing that fact was essential to Ringel’s affirmative defense that Keats’s claim was time-barred under the three- year statute of limitations “for injuries resulting from health care or related services.” RCW 4.16.350(3). In Ringel’s answer to Keats’s complaint, he asserted the affirmative defense that Keats failed “to state one or more claims upon which relief can be granted, including, but not limited to, [Keats]’s failure to bring this suit pursuant to [ch.] 7.70 RCW and/or [Keats]’s remedy for the alleged claims is limited to [ch.] 70.02 RCW.” RCW 70.02 pertains to medical records and health information access and disclosures, emphasizing that “a patient’s interest in the proper use and disclosure of the patient’s health care information.” RCW 70.02.005. In his affirmative defense, Ringel contended that Keats’s claim related to health care and was barred by the applicable statute of limitations, and therefore no relief could be granted. But Keats’s complaint asserted that the clinical notes were altered after the clinical relationship ended and his claim therefore did not relate to injuries resulting from health care services: As such, Plaintiff has strong reason to believe that the Clinical Notes were created at or around the time they were requested in 2022, and that they intentionally, recklessly and/or negligently include false and otherwise fabricated content Defendants learned 8 No. 88709-2-I/9 from other sources long after the fact (as opposed to directly from their discussions with Plaintiff in 2018 and 2019). In January 2024, Avula and Ringel moved to dismiss, contending that the statute of limitations expired on a medical malpractice claim. Keats stressed that his claim was not a health care claim and that Ringel created the notes in 2022 after the clinical relationship ended; “[t]hat’s what the allegation is, that [Ringel] purposely fraudulently created these notes in 2022.” Keats stated that he was “confident that the evidence will show that these notes were in fact created whole cloth in 2022.” The court agreed with Keats’s assertion that if the notes were created in 2022, Keats was not claiming his injuries resulted from health care services: “[I]f [the clinical notes] truly are created in June of 2022 and they clearly are fraudulent, fictitious and inflammatory, then I don’t see how they could relate, frankly, to healthcare provided three years earlier in order for [RCW] 7.70 to apply.” Throughout trial, Keats continued to maintain that his cause of action was not health care: Court: If it happened after the end of the therapeutic relationship, even if it wasn’t 2022, is it a common law claim or is it a healthcare claim? Keats: It would be common law. But I think . . . the point being is that it’s created whole cloth out of nothing. Now if it was, like, some amendment that was inaccurate or . . . some inaccuracy about something that was created a long time ago, perhaps that’s still a healthcare thing. But our point is that this [Ringel] created [the notes] after the healthcare relationship ended. That’s—that's why this is out of the healthcare statute and we’re into a common law issue. Later, Ringel’s counsel similarly stated that the suit was not based on health care. “We’re not asserting healthcare. We’re not asserting that any kind of 9 No. 88709-2-I/10 professional judgment was done consistent. And so that’s why we get to bring these common law tort causes of action. We don’t have to prove that it is healthcare.” Because both parties agreed that Keats’s claim was not based on healthcare, Ringel’s claim that the clinical notes were created in 2019 was not an affirmative defense. An affirmative defense is “[a] defendant's assertion of facts and arguments that, if true, will defeat the plaintiff's or prosecution's claim, even if all the allegations in the complaint are true.” BLACK’S LAW DICTIONARY 528 (12th ed. 2024). Ringel’s affirmative defense was dependent on Keats’s suit being a health care claim. However, the record supports that Keats’s suit was based on a general tort claim. At trial, the court stressed that it wanted to “put the issues together in a way to the jury so that the court can ensure that their decision on liability is rooted in nonhealthcare claims.” The court then concluded, “I disagree that the defense has a burden to prove the notes were created in 2019.” We agree with the trial court. Ringel’s assertion that the notes were created in 2019 was not an affirmative defense to the tort claims that were the subject of the trial. Burden of Proof Ringel contends that the elements of outrage and negligent infliction of emotional distress do not require a plaintiff to prove when the clinical notes were created. Although the clinical notes’ creation date is not an element of negligent infliction of emotional distress, the 2022 date was an essential fact to Keats’s theory of his case. Keats’s complaint asserted that he “has strong reason to 10 No. 88709-2-I/11 believe that the Clinical Notes were created at or around the time they were requested in 2022.” In Keats’s response to Ringel’s motion to dismiss, he stated: But regardless, to the extent Defendants’ falsification and fabrication of the Clinical Notes is “health care,” the Complaint does not allege that such wrongful act occurred on or before January 2019. Instead, the Complaint alleges that, Plaintiff has strong reason to believe that the Clinical Notes were created at or around the time they were requested in 2022. At trial, Keats continued to state the importance of his theory that the notes were created in 2022: And so all of our argument is going to be concerning fact—or actions that happened essentially from the May 2022 time period through to the present. And that’s going to be the focus of our argument. So if the jury is agreeing that their [sic] outrage was committed or a negligent infliction of emotional distress was committed, it’s going to be because they find the evidence supported our claims with respect to those actions on that timeline. In closing arguments, Keats’s counsel continued to assert his theory, “the evidence supports that my client’s case, is that the notes were created and sent on June 22, 20—or June of 2022.” If Keats was unable to prove that the clinical notes were created in 2022, his claim that Ringel altered his clinical notes would fail given that he made no assertion nor provided any evidence that the notes were altered at any other time. An essential fact of Keats’s theory of the case was that Ringel created the clinical notes in 2022 when Keats requested them. Because Keats’s theory of the case relied on the fact that Ringel created the clinical notes in 2022, we find that it was an essential fact. In a civil case, the plaintiff must prove their case by the preponderance of the evidence. In re Detention of LaBelle, 107 Wn.2d 196, 209, 728 P.2d 138 (1986) (stating that in 11 No. 88709-2-I/12 civil cases, “proof need only be by a preponderance of the evidence.”). Therefore, the jury would need to find by a preponderance of the evidence that Ringel created his clinical notes in 2022. Although the wording of the special verdict form was inartful, it correctly stated the burden of proof.6 Because the jury instruction reflected exactly what the plaintiff claimed the jury needed to find, that the notes were created in 2022 or later, the court did not err. Spoilation Instruction Keats contends that the court should have given a spoilation instruction because Ringel deleted files, including a copy of Keats’s clinical notes, on his computer during litigation. We review jury instructions de novo. Fehr, 185 Wn. App. at 514. Spoilation is “[t]he intentional destruction, mutilation, alteration, or concealment of evidence.” BLACK’S LAW DICTIONARY 1695 (12th ed. 2024). Historically, spoliation has “ ‘been treated as an evidentiary matter,’ with the remedy being an inference that the party’s conduct in destroying the evidence tended to corroborate the opposing party’s case.” Seattle Tunnel Partners v. Great Lakes Reinsurance (UK) PLC, 26 Wn. App. 2d 319, 336, 527 P.3d 134 (2023) (internal quotation marks omitted) (quoting Henderson v. Tyrrell, 80 Wn. App. 592, 605, 910 P.2d 522 (1996)). “If a party had a duty to preserve evidence and breaches that duty, a court must then determine whether the spoliating party acted intentionally, in bad faith, with conscious disregard for the importance of the evidence; negligently; or innocently.” Seattle Tunnel Partners, 26 Wn. App. 6 Any error in the wording of the special verdict form was harmless. 12 No. 88709-2-I/13 2d at 352. A jury “instruction is required only if there is substantial evidence to support it.” Henderson, 80 Wn. App. at 612. To give a spoilation instruction, the court must find that the party (1) acted intentionally, (2) in bad faith, and (3) with conscious disregard for the importance of evidence. In his testimony, Ringel stated that he intentionally deleted files. But Ringel’s testimony did not indicate that he deleted the files in bad faith: [M]y biggest question all along throughout this investigation is how can I protect the fact that I have protected health information of multiple patients on my computers, among lots of other personal information. Tax returns, personal diary and journal entries, photographs, et cetera, things about my daughter as well, you know, private information of hers. Ringel continued, “but in the process of [deleting personal information], I looked at what could be pulled off, and it was imperfect. I mean, I felt there was no way to pull off absolutely everything sensitive, but I did my best to do that.” Ringel’s statements do not support that he deleted files in bad faith or with conscious disregard for the importance of evidence. The court did not err when it denied Keats’s spoilation instruction. Keats asserts that Ringel’s deletion of a copy of the clinical notes was essential to resolve the parties’ dispute on when the file was created because the metadata of the deleted version could have shown the creation date. But the deleted copy was not the only version of the clinical notes. ArcherHall identified 13 instances of the clinical notes on Ringel’s 2019 laptop, 2012 laptop, and the external storage device. Additionally, all three expert reports determined the same creation, last modified, and last accessed dates of the files. 13 No. 88709-2-I/14 Ringel’s expert, Fried, also concluded that the metadata associated with the clinical notes is not reliable and cannot be used to “definitively state whether it accurately reflects any dates and times associated with the Plaintiff’s Healthcare Record.” In response, ArcherHall, Ringel’s expert, concluded that they “identified no evidence of date and time inaccuracies, such as those described by Mr. Fried’s report.” The jury had testimony from both Ringel’s and Keats’s experts regarding the quality of the metadata and how to interpret it. Therefore, the deletion of a copy of the clinical notes did not prevent the jury from being able to assess when the file was created. Sanctions Based on Discovery Violations Keats asserts that the court erred when it declined to impose sanctions because it did not fully analyze whether Ringel’s misconduct was willful or deliberate. The trial court’s ruling should not be disturbed on appeal “ ‘except on a clear showing of abuse of discretion, that is, discretion manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.’ ” Burnet v. Spokane Ambulance, 131 Wn.2d 484, 494, 933 P.2d 1036 (1997) (quoting Associated Mortg. Inv. v. G.P. Kent Constr. Co., 15 Wn. App. 223, 229, 548 P.2d 558 (1976)). A trial court has broad discretion when deciding the sanctions for violation of a discovery order. Burnet, 131 Wn.2d at 494. Keats filed two motions for sanctions, both of which were denied. In the court’s second denial of Keats’s motion for sanctions, it held in part that “the court maintains its findings that Mr. Ringel credibly explained how a copy of the 14 No. 88709-2-I/15 files at issue was deleted; that it was inadvertently deleted and was not done in bad faith.” The court also found that Keats did not establish that he was prejudiced. As discussed supra, no evidence supports that Ringel acted in bad faith or consciously disregarded the importance of evidence. We find no error. We affirm. WE CONCUR: 15