Anderson v. Akzo Nobel Coatings Inc., 82264–6.

CourtUnited States State Supreme Court of Washington
Citation172 Wash.2d 593,260 P.3d 857
Docket NumberNo. 82264–6.,82264–6.
PartiesJulie ANDERSON, individually and on behalf of the Estate of Dalton Anderson, and Darwin Anderson, individually, Appellants,v.AKZO NOBEL COATINGS, INC., and Keith Crockett, a Washington resident, Respondents.
Decision Date08 September 2011


Lincoln Charles Beauregard, John Robert Connelly Jr., Connelly Law Offices, Tacoma, WA, for Appellants.Kelly Patrick Corr, William Harrison Walsh, Steven Walter Fogg, Corr Cronin Michelson Baumgardner & Preece, LLP, Seattle, WA, for Respondents.Steven P. Krafchick, Pamela Susan Van Swearingen, Krafchick Law Firm PLLC, Seattle, WA, amicus counsel for National Fibromyalgia Association.Stewart Andrew Estes, Keating, Bucklin & McCormack, Inc., P.S., Seattle, WA, amicus counsel for Washington Defense Trial Lawyers.George M. Ahrend, Ahrend Law Firm PLLC, Moses Lake, WA, Bryan Patrick Harnetiaux, Attorney at Law, Spokane, WA, amicus counsel for Washington State Association for Justice Foundation.CHAMBERS, J.

[172 Wash.2d 597] ¶ 1 The trial court in this case ruled that under Washington courts' application of Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (1923), there must be general acceptance in the relevant scientific community that a particular type of in utero toxic exposure can cause a particular type of birth defect before expert testimony on causation is admissible. We disagree. We hold that the Frye test is not implicated if the theory and the methodology relied upon and used by the expert to reach an opinion on causation is generally accepted by the relevant scientific community. Additionally, we hold that Julie Anderson has not stated a cognizable claim for wrongful discharge in violation of public policy under this court's opinion in Cudney v. ALSCO, Inc., 172 Wash.2d 524, 259 P.3d 244 (2011), and we affirm the trial judge's preliminary ruling on comparative fault. We reverse in part, affirm in part, and remand for further proceedings consistent with this opinion.


¶ 2 As this case is here on cross-motions for summary judgment, we take the facts in the light most favorable to the nonmoving party with respect to the particular claim. Anderson worked for Akzo Nobel Coatings, Inc., from 1998 until she filed a safety complaint with the Washington State Department of Labor and Industries (L & I) and was fired. While employed, she was promoted several times, and at the time her employment terminated she was the health, safety, and environmental coordinator at her facility. While it was not officially part of her job, Anderson regularly mixed paint, perhaps even daily. Employees were required by official company policy to wear respirators when mixing paint, but there is reason to believe that this policy was not rigorously enforced and may have been actively undermined by management. According to Anderson (but vigorously disputed by the company), she was told by her supervisor that she “did not need to wear a respirator when mixing toxic paint because the air monitoring that was conducted by Akzo Nobel headquarters ... had purportedly determined that there was no health threat.” Clerk's Papers (CP) at 104; see also CP at 157. There was also evidence, again, vigorously disputed by the company, that the respirators were not properly maintained and that air testing in the mixing room had purposefully not been done properly.

¶ 3 Anderson gave birth to a son, Dalton Anderson, in January 2000. By 2003, it was clear Dalton suffered from “medical abnormalities.” CP at 104. He was diagnosed with a neuronal migration defect, congenital hemiplegia, microcephalus, and a multicystic dysplastic kidney , among other things, along with “delays in motor, communication, cognitive, and adaptive behavior.” CP at 113–14, 116. Anderson looked hard for both appropriate treatment and for a cause. One of Dalton's doctors, Dr. Chris B. Stefenelli, concluded that Dalton's developmental malformations were likely due to his mother's paint exposure at Akzo. CP at 105; see also CP at 116–17 (letter from Dr. Stefenelli, referring to Dalton's “significant medical problems very likely as a result of significant exposure to organic solvents while in utero”). Dr. Sohail Khattak, who published a paper on the correlation between exposure to organic solvents in utero and birth defects while he was a fellow at the Motherisk Program, a division of Clinical Pharmacology and Toxicology at the University of Toronto, was willing to testify that Dalton's birth defects were caused by organic solvent exposure. CP at 912–17 (affidavit); CP 231–34 (excerpt from Sohail Khattak, Guiti K–Moghtader, et. al., Pregnancy Outcome Following Gestational Exposure to Organic Solvents, 281 JAMA 1106 (1999)).

¶ 4 Meanwhile, Anderson became increasingly concerned about the safety practices at Akzo. She made an anonymous complaint to L & I in 2003, which resulted in an inspection and citation against Akzo for safety violations. At that point, Anderson learned that the safety protocols she and the company had been following were, in her words, “all wrong.” CP at 106. A year later, believing that the company had not meaningfully responded to the safety concerns, Anderson filed a formal complaint. This one was not anonymous. A second state inspection followed and found several safety violations, including inadequate training and inadequate safety equipment. Within days, Anderson was fired on the ground she had taken paint for personal use without payment. According to Anderson, as was customary with employees, she had purchased the paint for a friend, collected the money, and stapled the money to a form L–10, which had not yet been inventoried. According to Akzo, she was given an opportunity to explain why she had taken the paint without paying for it first and she failed to provide a “consistent, truthful answer.” CP at 148. Anderson initially filed a claim for retaliatory discharge with L & I under RCW 49.17.160, but abandoned it believing it was futile.

¶ 5 Anderson sued Akzo for negligence and wrongful discharge. Among other things, Akzo apparently raised comparative negligence as a defense in its answer. Anderson unsuccessfully moved for summary judgment striking that defense, initially on the ground that Akzo had submitted no evidence supporting the theory. Later, Akzo successfully moved in limine to strike most of Anderson's experts, on the ground that their proposed testimony did not meet the Frye standard. Based on that ruling, Akzo also successfully moved for summary judgment on the negligence claim because, without those experts, Anderson could not show that her paint exposures caused her son's injuries. Meanwhile, Akzo successfully moved for summary judgment on the wrongful discharge claim on the ground that the statutory remedy available under RCW 49.17.160 preempted the common law wrongful discharge claim.

¶ 6 Anderson sought, and we granted, direct review.


¶ 7 Questions of admissibility under Frye are reviewed de novo. State v. Copeland, 130 Wash.2d 244, 255, 922 P.2d 1304 (1996) (citing State v. Cauthron, 120 Wash.2d 879, 887, 846 P.2d 502 (1993)). We also review summary judgment de novo, with all inferences taken in favor of the nonmoving party. Mulcahy v. Farmers Ins. Co., 152 Wash.2d 92, 98, 95 P.3d 313 (2004) (citing Jones v. Allstate Ins. Co., 146 Wash.2d 291, 300, 45 P.3d 1068 (2002); Mountain Park Homeowners Ass'n v. Tydings, 125 Wash.2d 337, 341, 883 P.2d 1383 (1994)). As Anderson is the nonmoving party as to Akzo's summary judgment motions dismissing her negligence and wrongful discharge theories, and Akzo is the non-moving party as to Anderson's summary judgment motion on contributory negligence, the burden shifts with the issues.

Causation and Frye

¶ 8 Trial judges perform an important gate keeping function when determining the admissibility of evidence. ER 104. Courts must interpret evidence rules mindful of their purpose: “that the truth may be ascertained and proceedings justly determined.” ER 102. Generally, the admissibility of expert testimony in Washington is governed by ER 702. 1See also Reese v. Stroh, 128 Wash.2d 300, 305, 907 P.2d 282 (1995). Expert testimony is usually admitted under ER 702 if it will be helpful to the jury in understanding matters outside the competence of ordinary lay persons. Id. at 308, 907 P.2d 282 (citing State v. Ciskie, 110 Wash.2d 263, 279, 751 P.2d 1165 (1988)). Unreliable evidence is not helpful to the jury, and determining whether scientific-seeming evidence is sufficiently reliable to be admissible has vexed courts at least since Frye, and possibly since the fourteenth century when judges first started consulting with scientists. See Lee Loevinger, Science as Evidence, 35 Jurimetrics J. 153, 154 & n. 4 (1995) (citing Edmund Morgan, Foreword, American Law Institute Model Code of Evidence 34 (1942)). Nonetheless, novel scientific evidence, especially that still in the experimental stage, continues to present special challenges. See Robert H. Aronson, The Law of Evidence in Washington § 702.04 [9][a] at 702–29 (4th ed. 2009).

¶ 9 There are two accepted common law approaches for determining the admissibility of novel scientific evidence. The Frye test was established in 1923 by the United States Court of Appeals of the District of Columbia Circuit. The Frye court articulated the approach as follows:

Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.

Frye, 54 App. D.C. at 47, 293 F. 1013. Thus, under Frye, the court's...

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