Hayes v. Collinson, No. 56452-8-I (Wash. App. 5/29/2007)

• Decision Date: 29 May 2007
• Docket Number: No. 56452-8-I.,56452-8-I.
• Parties: DARRELL C. HAYES Appellant. v. DORIS A. COLLINSON and JOHN DOE COLLINSON, husband and wife and the marital community composed thereof, Respondents.
• Court: Washington Court of Appeals

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Unpublished Opinion

DARRELL C. HAYES Appellant. v. DORIS A. COLLINSON and JOHN DOE COLLINSON, husband and wife and the marital community composed thereof, Respondents.

No. 56452-8-I.

Court of Appeals of Washington, Division One.

Filed: May 29, 2007.

Appeal from King County Superior Court. Docket No: 03-2-28320-7. Judgment or order under review. Date filed: 06/13/2005. Judge signing: Honorable Carol A Schapira.

Counsel for Appellant(s), Ben W. Wells, Law Office of Ben W Wells PS, 210 E 3rd St, Arlington, WA, 98223-1328.

David A. Kohles, David A Kohles Inc PS, 7208 267th St Nw Ste 103, Stanwood, WA, 98292-6289.

Counsel for Respondent(s), Theodore George Bryant, SunCoast Holdings, Inc., 401 E Las Olas Blvd Ste 1540, Fort Lauderdale, FL, 33301-2247.

Melissa O'loughlin White, Cozen O'Connor, 1201 3rd Ave Ste 5200, Seattle, WA, 98101-3071.

BAKER, J.

Darrell Hayes sued Doris Collinson after she injured him in an automobile collision. The jury awarded Hayes some damages, but because the verdict was less than Collinson's Civil Rule 68 offer of judgment, the trial court awarded Collinson postoffer costs. The court also granted Collinson's posttrial motion to protect tax records that were placed in the court file. Hayes appealed the jury's verdict, arguing that improper expert testimony had skewed it. He also appealed the cost award and the protective order. Although the court erred in admitting the expert testimony, we affirm the jury's verdict because the error was harmless. We also affirm the order regarding the tax records, because judges have wide latitude to control the conduct of attorneys who litigate in their courtrooms. We reverse and remand the cost order, because some of the costs were awarded in error or did not have adequate support in the record.

I.

Collinson, driving a sedan approximately 30 miles per hour, rear-ended a large truck driven by Hayes, who was stopped at a red light. The force was enough to push the truck two or three car lengths ahead, but there was no visible damage to it. Collinson's car sustained severe front-end damage. Hayes was experiencing neck and back problems before the collision, but held a physically demanding job building swimming pools, earning an average of $18 per hour. After the collision, Hayes kept working, but experienced progressively worsening pain and stiffness in his back and neck. He eventually was diagnosed with herniated disks that required surgery.

Although surgery improved his condition, Hayes was still on limited physical activity and was advised to modify his strenuous job duties. Vocational rehabilitation counselors estimated Hayes's future earning potential as $20,000 to $40,000 per year. Hayes dropped out of a career retraining program, citing an addiction to pain medication and his need to work full time during his employer's busy season. He acknowledged that he still qualified for "some pretty good jobs"¹ and could work full time with modified duties. Hayes continued to work the same swimming pool jobs for two to three years after the collision.

At trial, Collinson sought to admit the testimony of Richard Harding, an injury causation analysis expert, about the forces Hayes experienced during the collision. In the context of an automobile collision, delta v is the change in velocity of a particular object, in this case Hayes's body, during the incident. Delta v can be expressed in miles per hour. It is based on the physical principle of conservation of momentum: the product of mass times velocity of the complete event will equal the sum of mass times velocity of all vehicles involved in the event. For example, Harding explained, if two cars of equal mass collide, with one car stationary and the other going 30 m.p.h., the delta v for each vehicle will be approximately 15 m.p.h. The delta v of a human body inside will be the same as that of the vehicle. The higher the delta v, said Harding, the greater the likelihood of injury. Harding was prepared to testify that the delta v for Hayes was 3 to 4 m.p.h., a relatively low impact.

The trial court had reservations about Harding's method of calculating delta v. Initially, the judge excluded Harding's testimony because it was based on calculations produced by EDCRASH, a computer program used in accident reconstruction. The court's concern was not with the EDCRASH software per se, but with the fact that someone other than Harding had actually run the EDCRASH program, and had changed at least one critical parameter. During an intense pretrial battle to admit Harding's testimony, several other gaps in methodology were revealed. Ultimately, the court agreed to let Harding testify based on his own delta v calculations, but not on any results from EDCRASH.² At trial, he testified about the factors that affect delta v, but also told the jury that delta v was calculated using a computer program. After telling the jury that Hayes experienced a delta v of three to four m.p.h., Harding concluded by explaining what that amount of force would have done to Hayes's body, referred to as "occupant kinematics." He also offered new testimony — not included in his report, his deposition, or in voir dire — as to what the delta v for Collinson would have been. Hayes repeatedly objected during Harding's testimony, but was generally overruled.

The jury returned a verdict for Hayes: $35,675 for past economic damages; $23,000 for past and future non-economic damages, and $0 for future economic damages. This was less than the $75,000 CR 68³ pretrial offer Collinson made. The trial court awarded Collinson costs incurred after the offer.

Posttrial, it was revealed that counsel for Hayes had disseminated Harding's tax returns to unknown third parties. Collinson had filed the tax returns in response to a discovery order, and had not initially sought any protective order or seal. The returns contained Harding's personal information, including his address and Social Security number. The trial court ordered the documents to be returned, and replaced with redacted copies bearing a protective watermark. The court also ordered Hayes's counsel to cease dissemination of Harding's tax returns, and disclose all parties who had received the returns.

Hayes appeals the verdict, the costs order, and the order regarding the tax returns.

II.

Hayes argues that the trial court erred in admitting Harding's expert testimony. He claims that Harding's methods do not conform to the Frye⁴ test, and that his testimony was also inadmissible under Evidence Rules 401, 403, and 703. Collinson responds that injury causation analysis (ICA) is an accepted scientific method, and the methodology flaws Hayes identifies are actually irrelevant to the delta v analysis.⁵

Admission of Expert Testimony

This court undertakes the Frye analysis de novo.⁶ The trial court's decision to permit Harding's expert testimony is reviewed for abuse of discretion.⁷ In Washington, a court can admit novel scientific evidence if it passes the Frye test. Under that test, scientific evidence is admissible if (1) it is based on a theory or principle generally accepted in the relevant scientific community, and (2) there are generally accepted methods of applying that theory to produce reliable results.⁸ Even if the evidence passes the Frye test, expert testimony is reviewed to see if it will assist the trier of fact:

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.⁹ And under ER 403, the court may exclude any evidence that will confuse or mislead the jury.

The first issue is whether the EDCRASH program meets the Frye test in this case.¹⁰ This court in State v. Sipin¹¹ recently enunciated a specific Frye test applicable to computer-generated models or simulations. Such programs may be the basis of expert testimony regarding substantive matters:

[C]onditioned upon a sufficient showing that (1) the computer is functioning properly; (2) the input and underlying equations are sufficiently complete and accurate (and disclosed to the opposing party so that they can be challenged); and (3) the program is generally accepted by the appropriate community of scientists for use in the particular situation at hand.¹² In Sipin, this court invalidated under the third prong a program designed to predict vehicle occupant kinematics. The evidence demonstrated that the relevant scientific community disagreed about the program's usefulness in predicting body movement in multi-impact collisions.¹³

This case involves a single-impact collision, so Sipin is not directly on point. But applying the Sipin test to the facts of this case, prongs one and two are lacking. Harding could not verify the computer's functionality, other than to state that the program was generally "guaranteed" and "validated." It was undisputed that Harding did not enter the data into EDCRASH, and he could not verify its accuracy for the court. In his deposition, he said that the amount of damage to the Buick was particularly important in the EDCRASH calculations, but he derived that information solely by looking at photographs. Harding did not know if there was frame damage, which he claimed was important because of the relative stiffness of the frame compared to other parts of the car. When the court pressed him on this matter, he suddenly reversed himself and claimed that damage to the Buick was irrelevant, and only damage to the Ford mattered.

Hayes's experts also questioned the completeness of Harding's data, particularly the reduction of the preprogrammed stiffness coefficients of the Buick. The court told Harding to reproduce the delta v calculations on a blackboard at trial and not rely on the EDCRASH numbers, but Harding told the jury that his delta v calculations were...