Johnston-Forbes v. Matsunaga

• Decision Date: 29 October 2013
• Docket Number: No. 43078–9–II.,43078–9–II.
• Citation: 177 Wash.App. 402,311 P.3d 1260
• Court: Washington Court of Appeals
• Parties: Cathy JOHNSTON–FORBES, Appellant, v. Dawn MATSUNAGA, Respondent.

177 Wash.App. 402

311 P.3d 1260

Cathy JOHNSTON–FORBES, Appellant,

v.Dawn MATSUNAGA, Respondent.

No. 43078–9–II.

Court of Appeals of Washington,

Division 2.

Oct. 29, 2013.

Michael Henry Bloom, Attorney at Law, Lake Oswego, OR, for Appellant.

Douglas Fredrick Foley, Douglas Foley & Associates, PLLC, Vancouver, WA, Vernon Scott Finley, Attorney at Law, Portland, OR, for Respondent.

HUNT, J.

¶ 1 Cathy Johnston–Forbes appeals the jury's special verdict ¹ finding that Dawn 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

¶ 2 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 vehicle, told Matsunaga that “everybody was fine,” and walked 100 yards to a field while her husband waited with the car for police to arrive. 4 Verbatim Report of Proceedings (VRP) at 490. Johnston–Forbes did not experience any bruising from the impact; nor did she believe that she was injured. That evening, however, she experienced a headache and stiffness in her neck, for which she did not seek medical treatment.

¶ 3 Several weeks later, Johnston–Forbes visited the hospital complaining about lower back pain. During the following year she received periodic physical therapy treatments. A year after the collision she complained to her doctor that she was experiencing 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

¶ 4 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.

¶ 5 Johnston–Forbes moved in limine to exclude the vehicle damage photographs ² and the testimony of Allan Tencer, Matsunaga's expert witness. 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 vehicle and had not physically examined it; (2) he had neither viewed photographs of nor examined Johnston–Forbes' vehicle; and (3) he failed to account for Johnston–Forbes' body position at the time of impact and how it had affected her injuries. Johnston–Forbes further argued that Tencer's testimony and the photographs would be “speculative,” would “mislead and confuse the jury,” and would “unfairly prejudice [her].” Clerk's Papers (CP) at 9.

¶ 6 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 volunteers, he writes about them, he's a published author—and as I said, he's got a couple 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 exchange of forces, and he can credit [Johnston–Forbes'] case by saying the most 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. Matsunaga further clarified that (1) Tencer's testimony would discuss solely biomechanics, 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 about the forces and the limits” involved in the collision and compare them to “activities of daily living.” 1 VRP at 12 (emphasis added).

¶ 7 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 because it was “misleading” (implying minimal damage), and (2) instructing Matsunaga to “tailor” Tencer's testimony so as not to refer to this repair bill. 1 VRP at 19, 28. Matsunaga also agreed to limit the number of photographs of her vehicle that she would present at trial.

¶ 8 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 not discuss any injury that Johnston–Forbes might have sustained. Johnston–Forbes' extensive cross-examination of Tencer drew out the following facts: (1) Tencer is neither a medical doctor nor a licensed engineer; (2) he did not examine Johnston–Forbes' vehicle or any photographs of it; (3) 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's collision force analysis predicted. Johnston–Forbes also asked Tencer, “[Y]ou're not testifying one way or another whether Ms. Johnston–Forbes was injured; correct?” Tencer replied, “Correct. I'm just describing the forces that she probably felt during the collision.” ³ 3 VRP at 340.

¶ 9 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.

ANALYSIS

¶ 10 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 violation of Frye⁴ ; (2) he is not a physician and could not testify about medical causation of injuries; (3) he “is not a licensed engineer, thus he [could not] testify to the engineering principles 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

¶ 11 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 Wash.App. 728, 755, 187 P.3d 803 (2008), aff'd,170 Wash.2d 302, 241 P.3d 1234 (2010). Accordingly, we do not further address Johnston–Forbes' Frye challenge to Tencer's expert testimony.

II. Other Expert Testimony Challenges

A. Standard of Review

¶ 12 We review a trial court's determination of the admissibility of expert testimony for an abuse of discretion. Weyerhaeuser Co. v. Commercial Union Ins. Co., 142 Wash.2d 654, 683, 15 P.3d 115 (2000). If the basis for admission of the evidence is “fairly debatable,” we will not disturb the trial court's ruling. Grp. Health Coop. of Puget Sound, Inc. v. Dep't of Revenue, 106 Wash.2d 391, 398, 722 P.2d 787 (1986) (internal quotation marks omitted) (quoting Walker v. Bangs, 92 Wash.2d 854, 858, 601 P.2d 1279 (1979)). Washington appellate courts generally do not weigh expert testimony. See In re Marriage of Sedlock, 69 Wash.App. 484, 491, 849 P.2d 1243 (1993).

B. Medical Opinion

¶ 13 Johnston–Forbes challenges Tencer's expert testimony as improper medical opinion because, by comparing the collision forces to daily living activities (such as “walking ‘down stairs' or ‘jogging’ ”) ⁶, the “clear message ... was that this collision could not have injured [the] plaintiff.” Br. of Appellant at 27.

¶ 14 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 acting on Johnston–Forbes' body. We hold that an expert's description of forces generated during a collision is not medical testimony.⁷

¶ 15 Johnston–Forbes also argues that even though Tencer disavowed an intent to give medical testimony, his opinions directly related to a medical issue—whether the force of impact was enough to injure her. She claims that Tencer's testimony improperly allowed the jury to infer that she could not have been injured in the accident. Johnston–Forbes relies on Stedman v. Cooper, 172 Wash.App. 9, 292 P.3d 764 (2012), in which Division One of our court affirmed a trial court's ruling excluding Tencer's testimony because it was “ ‘logically irrelevant to the issue the jury must decide: the...