Cawley v. Harbor Freight Tools USA, Inc., No. 35535-3-II (Wash. App. 3/25/2008), 35535-3-II.

• Decision Date: 25 March 2008
• Docket Number: No. 35535-3-II.,35535-3-II.
• Citation: Cawley v. Harbor Freight Tools USA, Inc., No. 35535-3-II (Wash. App. 3/25/2008), No. 35535-3-II. (Wash. App. Mar 25, 2008)
• Parties: CARL CHRISTOPHER CAWLEY and DONNA CAWLEY, husband and wife, Appellants, v. HARBOR FREIGHT TOOLS USA, INC., d/b/a HARBOR FREIGHT TOOLS, a Delaware corporation, Respondent.
• Court: Washington Court of Appeals

Page 1

Unpublished Opinion

CARL CHRISTOPHER CAWLEY and DONNA CAWLEY, husband and wife, Appellants, v.HARBOR FREIGHT TOOLS USA, INC., d/b/a HARBOR FREIGHT TOOLS, a Delaware corporation, Respondent.

No. 35535-3-II.

Court of Appeals of Washington, Division Two.

Filed: March 25, 2008.

Appeal from Thurston Superior Court.DocketNo. 03-2-00600-6.Judgment or order under review.Date filed: 10/20/2006.Judge signing: Honorable H Christopher Wickham.

Counsel for Appellant(s), Candiss Anne Watson, Attorney at Law, 3025 Limited Ln Nw, Olympia, WA, 98502-2613.

Marie A Docter, Briggs & Briggs, 10222 Gravelly Lake Dr Sw, Tacoma, WA, 98499-5005.

Counsel for Respondent(s), Gregory Brian Curwen, Gierke Curwen Dynan & Erie PS, 2102 N Pearl St Bldg D Ste 400 Tacoma, WA, 98406-2530.

Jeffery D Bradley, Gierke Curwen Metzler & Erie PS, 2102 N Pearl St Ste 400, Tacoma, WA, 98406-2550.

Mark J. Dynan, Gierke Curwen Dynan Erie & Jones, 2102 N Pearl St Ste 400, Tacoma, WA, 98406-2550.

BRIDGEWATER, P.J.

Carl Christopher Cawley and his wife, Donna Cawley, appeal the Thurston County Superior Court's exclusion of their retail safety expert's testimony and its denial of their requested Pimental¹ jury instruction in their negligence action against Harbor Freight Tools (Harbor).We affirm.

FACTS

On December 23, 2000, Carl Cawley visited the Harbor store in Lacey to do some Christmas shopping.Cawley was looking for a vise for his business to replace one that he had broken.

Harbor displays its various vise models on a four-foot-square table that Harbor makes in-house.Harbor mounted the display models around the outside edge of the table and often stacked saleable merchandise on the center of the table and underneath the table.Harbor encourages customers to examine the display models by manipulating the levers to open and close the vise jaws.Harbor replaces the display tables every four or five years due to wear and tear.

During Cawley's visit, a store employee informed store manager Charles Patchell that Cawley was sitting on the floor next to one of the vises, holding his foot.Patchell and another employee helped Cawley to the break room and gave him some ice for his foot.Cawley then purchased a vise like the one that fell on his foot and left the store.

Cawley drove to a hospital, where he learned that the vise had fractured his second toe.Cawley underwent several surgeries to remove joint tissue, to insert an implant, and to fuse the bones of his toes.Cawley continues to suffer pain and his ability to walk may be permanently impaired.

On April 2, 2003, Cawley initiated a lawsuit in Thurston County Superior Court claiming that Harbor breached its duty to its customers by failing to provide a safe product display in its store.In its answer, Harbor claimed that Cawley was contributorily negligent.

On August 11, 2006, the trial court considered Harbor's motion in limine to either exclude or limit the testimony of Mary Hollins, Cawley's purported retail safety expert, regarding the vise display.The trial court limited Hollins's testimony to explaining to the jury what exhibits 33, 35, and 36 mean.²It ruled that she could not testify about industry standards as they relate to whether this display was an unreasonable risk because that would invade the province of the jury.

During the first day of trial, Harbor objected to Hollins's videotaped deposition testimony when Cawley attempted to play it for the jury.The trial court then read the transcript of her deposition outside the jury's presence, allowed both sides to present argument, and eventually decided to exclude her entire deposition testimony because it was not relevant and would be confusing, rather than helpful, to the jury.³In addition to indicating that Cawley did not satisfy the requirement that Hollins's testimony would be helpful to the jury, the trial court also indicated that "the substantial prejudice that would come from allowing that testimony before the jury greatly outweighs what little relevance it might have, and, therefore, it would also be excludable under CR [sic] 403."1 RPat 100.

The trial court also refused to offer Cawley's proposed Pimentel jury instruction regarding foreseeability in a self-service setting.Specifically, the trial court stated:

I'm not persuaded that the evidence in this case would support a jury finding that the improperly constructed display was dangerous as a result of the actions of other customers.

2 RPat 339.The jury returned a verdict in Harbor's favor.

ANALYSIS

I. Hollins's Testimony

Cawley contends that the trial court committed reversible error by excluding Hollins's expert testimony because it satisfied the two-prong test under ER 702."The determination of the admissibility of expert testimony is within the discretion of the trial court and will not be disturbed absent an abuse of discretion."Weyerhaeuser Co. v. Commercial Union Ins. Co., 142 Wn.2d 654, 683, 15 P.3d 115(2000).A trial court abuses its discretion when it bases its decision on untenable grounds or is manifestly unreasonable or arbitrary.Weyerhaeuser, 142 Wn.2d at 683.

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.

Washington courts apply a two-prong test to determine whether expert testimony should be admitted.Reese v. Stroh, 128 Wn.2d 300, 306, 907 P.2d 282(1995).The two steps are: (1) whether the witness qualifies as an expert and (2) whether the expert testimony would help the trier of fact.Reese, 128 Wn.2d at 306.The trial court has broad discretion in determining the admissibility of expert testimony under ER 702, but on appeal, we construe helpfulness to the trier of fact broadly.Philippides v. Bernard, 151 Wn.2d 376, 393, 88 P.3d 939(2004).Cawley contends that Hollins satisfied the ER 702 test.Harbor counters that the trial court also excluded Hollins's testimony under ER 403⁴ and that Cawley has waived his right to challenge the exclusion of her testimony because he failed to challenge the trial court's ER 403 finding."[W]hen an appellant fails to raise an issue in the assignments of error . . . and fails to present any argument on the issue or provide any legal citation, an appellate court will not consider the merits of that issue."State v. Olson, 126 Wn.2d 315, 321, 893 P.2d 629(1995).

The trial court stated:

And I don't see relevance to [Hollins's testimony], and I also see it as confusing the jury by taking their focus off of the issue that is before them.I'm also concerned.I know that the evidence rules permit her to testify on the ultimate issue, if she is accepted as an expert; however, the substantial prejudice that would come from allowing that testimony before the jury greatly outweighs what little relevance it might have, and, therefore, it would also be excludable under CR [sic] 403.

1 RPat 100.While Harbor is correct in asserting that the trial court mentioned possible exclusion under ER 403, it appears from the record that the trial court based its decision on Cawley's failure to show that Hollins's testimony would help the jury under ER 702.

THE COURT: I still don't see how this expert is able to help this jury, even if I accept that she looked at a display that was essentially identical to the display that injured the plaintiff, because this witness knows nothing about the holding power of fasteners.She knows nothing about the forces that might or might not be placed upon a vise to bring it down.

[Cawley's counsel]: But [Hollins] knows the types of things that happen to displays in retail settings, such as customers using them, moving them, and what you need to do to make a display safe.She talks about that.She talks about her experience with that.

THE COURT: Counsel, I think we are going over the same ground that we went [over] at the pretrial conference, and at that point I indicated I would not allow her testimony, except insofar as it was necessary to introduce [Harbor's rules and procedures].You have already been able to do that, and so I don't see that her testimony is necessary to assist you in doing that.I'm going to exclude her testimony completely.

1 RPat 99-100.

Harbor moved to exclude Hollins's testimony under ER 702.As such, it appears that the trial court's reference to ER 403 was more an aside than a ruling.Harbor offers no authority that such an aside would equate to a substantive ruling.Accordingly, we address the merits of Cawley's ER 702 challenge.

The trial court did not find Hollins qualified to provide expert testimony.

She obviously is very qualified and experienced in her own way, but I see her more as an advisor to business and not someone who is able to explain to the jury the risk presented by a particular form of display.

RP(Aug. 11, 2006)at 17.It noted that Hollins lacked experience in preventative measures for retail safety, that she never went to the store where the accident took place, and that she did not have any experience with vises.Specifically, the trial court reiterated that Hollins did not go to the store in question but, rather, went to the new store.In addition, it noted that she looked at a different display.

Cawley counters that Hollins's qualifications as an expert are considerable.She graduated from law school, worked as a safety director for a chain of department stores and a mental health facility, and operates her own risk management consulting business.She is a member of several professional organizations, including the American Society of Safety Engineers, the National Safety Management Society, Risk & Insurance Management Society, Society for Human Resource Managers, Women in Worker's Compensation, Washington Self-Insured Association, and the ...