Cathy Johnston-forbes, Appellant V. Dawn Matsunaga, Respondent (Majority)
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FILED COURT DP APPEALS DIVISIIOP II 2013 OCT 29 Aar 9: lab IN THE COURT OF APPEALS OF THE STATE OF WASHI DIVISION II No. 43078 -9 -II CATHY JOHNSTON- FORBES, Appellant, V. PUBLISHED OPINION DAWN MATSUNAGA, Cathy Johnston- Forbes appeals the jury' s special verdict' finding that Dawn HUNT, J. Matsunaga' s negligence had not proximately caused Johnston- Forbes' injuries in a car accident. Johnston -Forbes argues that the trial court committed reversible error in denying her motion in limine to exclude defense expert Allan Tencer' s testimony about the forces involved in this accident. Holding that the trial court did not abuse its discretion in allowing Tencer' s limited testimony, we affirm. FACTS I. CAR ACCIDENT In August 2006, Dawn Matsunaga' s vehicle struck at low speed the rear end of the stopped vehicle in which Cathy Johnston- Forbes was a passenger. Johnston- Forbes exited her Johnston- Forbes assigns error to only the trial court' s denial of her pretrial motion to exclude s expert testimony. At the end of her opening and reply briefs, however, she asks Allan Tencer' us to " remand court' s Clerk' s to the trial court judgment." Reply Papers ( CP) at 65. Br. of for a new Appellant trial," at Br. of Appellant at 43, and to " reverse the trial 25. See also notice of appeal from the " judgment." No. 43078 -9 -II told Matsunaga that " everybody vehicle, husband waited with the car for police was fine," and walked 100 yards to a field while her to arrive. 4 Verbatim Report of Proceedings ( VRP) at Johnston- Forbes did not experience any bruising from the impact; nor did she believe that 490. she was injured. That evening, however, she experienced a headache and stiffness in her neck, for which she did not seek medical treatment. Several weeks later, Johnston- Forbes visited the hospital complaining about lower back pain. the During the following year she received periodic physical collision she complained to her doctor that she was therapy experiencing treatments. A year after neck pain. Approximately four years after the accident, a December 2010 MRI (magnetic resonance imaging) revealed that Johnston- Forbes had a herniated disc in her lower neck. II. PROCEDURE In the meantime, in May 2009, Johnston- Forbes sued Matsunaga for general and special damages arising from Matsunaga' s alleged negligence in the August 2006 car accident. Matsunaga admitted that she had struck Johnston- Forbes' vehicle but denied that this collision had caused Johnston- Forbes' injuries. Johnston- Forbes moved in limine to exclude the vehicle damage photographs testimony of Allan Tencer, Matsunaga' s expert witness. and the She argued that Tencer should not be allowed to testify, based on his lack of qualifications as a licensed engineer and the lack of a foundation for his testimony because ( 1) he had viewed only photographs of' Matsunaga' s 2Johnston- Forbes argued that the vehicle damage photographs were " incomplete, taken too remote in time and [ would] tend to confuse and mislead the jury and [ were] unfairly prejudicial." CP at 41. Admission of these photographs, however, is not before us in this appeal. 2 No. 43078 -9 -II examined position argued had and vehicle not Johnston- Forbes' the jury," s testimony and would " it; ( 2) he had neither viewed photographs of nor examined vehicle; the time of impact at that Tencer' confuse physically and and and ( 3) he failed to how it had the unfairly affected her]." for Johnston- Forbes' her injuries. photographs would prejudice [ account be " body Johnston Forbes further speculative," would " mislead and Clerk' s Papers ( CP) at 9. Matsunaga responded: Dr. Tencer, who has studied accidents like this many, many times, published a couple hundred papers, done a couple of hundred tests on biomechanics, is able to look at a photograph. What you' ll hear from him is that he can tell upper limits. He can say without body damage, without deformation, without physical damage to the bumper grille, because he knows what' s behind these bumpers, he knows how these cars are constructed, he takes them apart, he tests them, he tests he volunteers, a couple writes about them, he' s a published author and as I said, he' s got hundred in different journals owns patents in this area in terms of car design. He' ll testify that there are upper limits to what can happen in terms of forces, and he can credit [ Johnston- Forbes'] case by saying the most exchange of that could have happened to [ her] in this case in terms of force and the potential for injury is the upper limit, which is established by the absence of damage from these photographs. 1 VRP at 10 -11. biomechanics, Matsunaga further clarified that ( 1) Tencer' s testimony would discuss solely which focuses on " the forces exchanged and the capacity for injury "; ( 2) he would not testify about whether there actually was any injury to Johnston- Forbes; and ( 3) he would " talk activities of about the forces daily living." and the limits" involved in the collision and compare them to 1 VRP at 12 ( emphasis added). The trial court denied Johnston- Forbes' motions to exclude Tencer' s testimony and to exclude the photographs of Matsunaga' s vehicle, which showed no visible damage. But the trial court limited Tencer' s testimony by ( 1) excluding a repair bill from Johnston- Forbes' rental car 3 No. 43078 -9 -II because it was " tailor" Tencer' s misleading" ( testimony implying so as not to damage), minimal refer to this repair and ( 2) instructing Matsunaga to bill. 1 VRP at 19, 28. Matsunaga also agreed to limit the number of photographs of her vehicle that she would present at trial. The case proceeded to trial. Tencer testified generally about the forces acting on the two vehicles and Johnston- Forbes' body during the collision; consistent with the trial court' s limiting order, he did Forbes' not extensive medical neither a vehicle or any discuss any of cross examination doctor nor a of photographs that Johnston- Forbes injury Tencer drew licensed it; ( 3) engineer; ( out might the have following sustained: Johnston- facts: ( Tencer is 1) 2) he did not examine Johnston- Forbes' a basketball hoop had fallen on Matsunaga' s vehicle between the time of the accident and when she took the photographs of it; and ( 4) Johnston- Forbes' body position at the time of the accident could have resulted in greater stress on her body than Tencer' not s collision testifying replied, " one way force analysis predicted. or another whether Correct. I' m just describing the Johnston- Forbes Ms. Johnston- Forbes forces that she also asked was injured; probably felt during Tencer, "[ Y] ou' re correct ?" the Tencer 3 collision. " 3 VRP at 340. The jury returned a special verdict of " no" on the question of whether Matsunaga' s negligence proximately caused Johnston- Forbes' injuries. CP at 64. Johnston- Forbes appeals. 3 In response to Johnston- Forbes' questions on cross -examination, Tencer testified about the 3 VRP at 358. Johnston- Forbes also asked amount of " tissue stretch" caused by the impact. Tencer: " greater it replied, " So got, wouldn' t you also agree ... the greater the Yeah. Again, let' s if [ the] distance between the injury? Wouldn' t you injury term out of it." 3 chance of leave the M agree seat and ... driver, the to that ?" 3 VRP at 365. VRP at 365. He No. 43078 -9 -II ANALYSIS Johnston -Forbes argues that the trial court erred in denying her motion in limine to exclude Tencer' s testimony because ( 1) Tencer' s underlying theory is not generally accepted in the scientific community, in about medical causation of to the. engineering violation of injuries; ( 3) principles Frye 4; ( 2) he is not a physician and could not testify he " is not a licensed engineer, thus he [ could not] testify that form the basis of his opinions "; ( 4) he lacked the necessary foundation to testify about forces involved in the collision; and ( 5) his testimony violated ER 702 and 403. 5 Br. of Appellant at 28. These arguments fail. I. UNPRESERVED FRYE CHALLENGE Johnston- Forbes did not challenge Tencer' s testimony below as - being not generally accepted in the scientific community; nor did she request a Frye hearing. We do not consider an issue a party raises for the first time on appeal unless that party demonstrates it involves a . manifest error affecting a constitutional right. RAP 2. 5( a)( 3). More specifically, a party who fails to seek a Frye hearing below does not preserve this evidentiary challenge for review. In re Det. of Post, 145 Wn. 2010). App. 728, 755, 187 P. 3d 803 ( 2008), affd, 170 Wn.2d 302, 241 P. 3d 1234 Accordingly, we do not further address Johnston- Forbes' Frye challenge to Tencer' s expert testimony. 4 5 Frye v. United States, 54 App. D. C. 46, 293 F. 1013 ( 1923). Although Johnston- Forbes told the trial court that she had no " problem with Mr. Tencer testifying," based on the full record of this hearing; we reject Matsunaga' s request to treat this colloquoy as a waiver of her motion in limine. 1 VRP at 20. 5 No. 43078 -9 -II II. OTHER EXPERT TESTIMONY CHALLENGES A. Standard of Review We review a trial court' s determination of the admissibility of expert testimony for an abuse of discretion. P. 3d 115 ( 2000). disturb the trial Weyerhaeuser Co. If the basis for court' s ruling. v. Commercial Union Ins. Co., 142 Wn.2d 654, 683, 15 admission of the fairly quotation marks Bangs, 92 Wn.2d 854, 858, 601 P. 2d 1279 ( 1979)). testimony. is " debatable," we will not Grp. Health Coop. ofPuget Sound, Inc. v. Dep' t of Revenue, 106 Wn.2d 391, 398, 722 P. 2d 787 ( 1986) ( internal not weigh expert evidence omitted) ( quoting Walker v Washington appellate courts generally do See In re Marriage of Sedlock, 69 Wn. App. 484, 491, 849 P. 2d 1243 ( 1993). B. Medical Opinion Johnston- Forbes challenges Tencer' s expert testimony as improper medical opinion because, stairs' by or ` plaintiff." comparing the jogging "') 6, the " collision forces to clear message ... daily living activities ( such as " walking ` down was that this collision could not have injured [the] Br. of Appellant at 27. We disagree that Tencer' s testimony was medical in nature. Significantly, Tencer did not offer an opinion about whether the forces involved in the accident would or would not have caused personal injuries to anyone in general or to Johnston- Forbes in particular. On the contrary, he expressly stated that he would not testify about whether Johnston- Forbes' injury was possible at the speeds involved in this case. Tencer limited his testimony to the forces generated in the collision and his conclusion that the collision was not likely the source of significant forces 6 Br. of Appellant at 25 ( citing 3 VRP at. 325 -26). 2 No. 43078 -9 -II Johnston- Forbes' acting on during a collision is body. not medical We hold that an expert' s description of forces generated testimony. 7 Johnston- Forbes also argues that even though Tencer disavowed an intent to give medical testimony, his to injure her. enough that she could not Cooper, 172 Wn. trial the court' s jury directly opinions related a medical have been injured in the accident. Johnston- Forbes relies on Stedman v. 9, 292 P. 3d 764 ( 2012), in which Division One of our court affirmed a App. s testimony because it was "` logically irrelevant to the issue the degree to which these particular plaintiffs were injured in this decide: particular accident. "' issue whether the force of impact was She claims that Tencer' s testimony improperly allowed the jury to infer ruling excluding Tencer' must to Stedman, 172 Wn. App. at 18 -19. The Stedman court noted that Tencer did not provide medical testimony, but suggested that his opinions were misleading anyway: Tencer declared that ... "[ he] never described any threshold for injury in Emphasizing that he testifies from a biomechanical rather than a medical perspective, he disavowed any intention of giving an opinion about his] opinions."' whether Stedman got hurt in the accident. Nevertheless, his clear message was that Stedman could not have been injured in the accident because the force of the Indeed, according to [ the defendant' s] brief, Tencer' s impact was too small. conclusion was exactly that: the forces generated by the impact were not sufficient to cause the type of injuries Stedman was claiming. Stedman, 172 Wn. App. at 20 ( footnotes omitted). The Stedman court also implied that Tencer' s opinions should be excluded because they improperly allowed the jury to infer that the minimal accident forces could not have caused injury. See Stedman, 172 Wn. App. at 19 -20. 7 In a different case, we have previously held Tencer' s testimonythat "the maximum possible force in [ the] v. accident was not enough Arrington, 111 Wn. App. to injure a person" was not a " medical opinion." 557, 564, 45 P. 3d 557 ( 2002). testimony here, we do not need to address whether that holding remains good law. h Ma' ele Because Tencer provided no such No. 43078 -9 -II To the extent that the Stedman court suggested that the force of impact is always irrelevant or that it is improper for a jury to infer that minimal force did not cause injury in a case, particular in relevant injury personal The force cases. of impact whether slight or significant is often See Murray v. Mossman, 52 Wn.2d 885, 888, 329 P.2d 1089 admission of automobile accident photographs not reversible error because they tended 1958) ( to disagree. we show " Ry. Co., force and direction of the impact" that resulted in injury); Taylor v. Spokane, P. & S. 72 Wash. 378, 379 -80, 130 P. 506 ( 1913) ( photograph properly admitted to show probable force of the impact" where force of impact was material to whether passenger was actually injured). And there is nothing improper about allowing the jury to draw inferences from evidence explaining force of impact, as well as from other evidence, in determining proximate We again emphasize the standard of review for a trial court' s decision to allow or to cause. exclude expert testimony: " The broad standard of abuse of discretion means that courts can reasonably reach different conclusions about whether, and to what extent, an expert' s testimony will be helpful to the jury in a particular case." Stedman, 172 Wn. App. at 18. Here, we hold that the trial court did not abuse its discretion in denying Johnston- Forbes' motion to exclude Tencer' s force of impact testimony, especially in light of Matsunaga' s limiting Tencer' s testimony such that he did not offer any opinion about whether the forces in the accident were or were not sufficient to cause injury. N. No. 43078 -9 -II C. Engineering Opinion Johnston- Forbes engineer, next challenges Tencer' testimony because he " is not a licensed s thus he cannot testify to the engineering principles that form the basis of his 8 opinions. " Br. of Appellant at 28. Johnston- Forbes is incorrect. ER 702 provides: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. Nothing in ER 702 requires an expert witness to be licensed in his profession to give testimony. On the contrary, practical experience alone may suffice to qualify a witness as an expert. State v. Yates, 161 Wn.2d 714, 765, 168 P. 3d 359 ( 2007), cent. denied, 554 U. S. 922 ( 2008). We hold that the trial court did not abuse its discretion in denying Johnston- Forbes' motion to exclude Tencer' s expert testimony because he lacked an engineering license. D. Foundation Challenge Johnston- Forbes bases her challenge to Tencer' s testimony as lacking the necessary foundation on the following rental vehicle nor viewed the assertions: ( any repair work performed on 1) He neither physically examined Johnston- Forbes' photographs of this it; (2) he did not have an adequate description of rental vehicle; ( 3) Matsunaga took the photographs of her own vehicle, which Tencer used in his analysis, approximately three years after the collision; and ( 4) 8 We note that the statutes governing the practice of engineering, which Johnston- Forbes cites in her brief, do not control the trial court' s ability to conclude that a witness is qualified as an expert. See ER 702; RCW 18. 43. 010. 7 No. 43078 -9 -II Tencer " did in the not vehicle at have sufficient the time of information to Johnston- Forbes'] awkward positioning impact." Br. of Appellant at 35. Again, we disagree. challenges to Tencer' s testimony for lack of foundation go to the Johnston- Forbes' its admissibility. weight of the evidence, not Wn. 260, 274 -75, 23 P. 3d 529 ( 2001), App. consider [ See Kaech review v. Lewis County Pub. Util. Dist., 106 denied, 145 Wn.2d 1020 ( 2002). Moreover, Johnston- Forbes ably raised these foundational challenges for the jury' s consideration during Tencer' s cross -examination. We hold that the trial court did not abuse its discretion in denying Johnston- Forbes' motion to exclude Tencer' s testimony for lack of foundation. E. Relevancy Challenge under ER 702 and ER 403 Finally, Johnston- Forbes contends that Tencer' s testimony was not helpful to the jury, as required by ER 702, and that its unfair prejudice, confusion of Appellant at probative value was "` the issues, 36 ( quoting ER 403). claims she suffered as a result of the collision testimony, Appellant caused the at jury' s 39 -40. her injury or substantially outweighed by the danger of misleading the jury, "' in violation of ER 403. Br. of Johnston- Forbes focuses her argument on the prejudice she this was verdict would testimony: She argues that ( 1) her " medical evidence that and ( strong "; have likely 2) had the trial court excluded Tencer' s been different, namely in her favor. Br. of The record does not support her characterization of the proceedings and evidence. Although Johnston- Forbes testified that several hours after the accident she started having headaches and pain and stiffness in her neck, she also acknowledged that ( 1) one year after the collision, in August 2007, she had been involved in a golf cart collision in which she had flown forward and hit her chest on the steering wheel; and ( 2) two years later, in 2009, she 10 No. 43078 -9 -II had been involved in a snowboarding accident, in which she had fallen and fractured her thumb. Consistent with Johnston- Forbes' description of her later sports -related accidents and injuries, Matsunaga' s medical expert, Paul Tesar, testified that " there are many, many things in terms of life activities that herniated disc," can cause a fall "; this testimony was uncontroverted. including 2 VRP at a " sneeze," " 142. a swing," or any " slip and The record also shows that Johnston- Forbes waited over two years before filing suit against Matsunaga and nearly four years after the collision before obtaining an MRI showing a herniated disc. Based on this evidence, the jury could have reasonably concluded that Johnston- Forbes' pain and injury related back to one of these other previous accidents. As is the case with evidentiary rulings in general, we review a trial court' s ER 403 and ER 702 rulings with great deference under a manifest abuse of Vreen, 143 Wn. 2d 923, 932, 26 P. 3d 236 ( 2001). court' s rejecting Johnston- Forbes' discretion standard. See State v. We find no abuse of discretion in the trial ER 702 and ER 403 challenges as bases for excluding Tencer' s testimony. We affirm. r Hunt, J. We cnncrnr- iwaxa, J. 11 l
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