Ma'Ele v. Arrington

• Decision Date: 29 March 2002
• Docket Number: No. 25015-2-II.,25015-2-II.
• Court: Washington Court of Appeals
• Parties: Duke MA'ELE, Appellant, v. Florine ARRINGTON and John Doe Arrington, wife and husband, and their marital community composed thereof, Respondents.

45 P.3d 557

111 Wn. App. 557

111 Wash. App. 557

Duke MA'ELE, Appellant, v. Florine ARRINGTON and John Doe Arrington, wife and husband, and their marital community composed thereof, Respondents.

No. 25015-2-II.

Court of Appeals of Washington, Division 2.

March 29, 2002.

Publication Ordered May 3, 2002.

Patrick Arthur Palace, Tacoma, for Appellant.

Elizabeth Ann Jensen, Richard J. Jensen Ps & Associates, Tacoma, for Respondents.

ARMSTRONG, C.J.

The trial court found Florine Arrington solely at fault for a car accident she had with Duke Ma'ele. Several chiropractic doctors testified that the accident injured Ma'ele. But a biomechanical engineer said that he would not expect a person to be injured in such a low energy collision. The jury found that the accident did not proximately cause Ma'ele's injuries and awarded no damages. On appeal, Ma'ele argues that the evidence does not support the verdict; he also contends the court erred in allowing the engineer to testify because (1) he was not qualified to testify about injuries, and (2) the defense did not supply discovery information requested of the expert about other cases on which he had worked. Finally, Ma'ele says the court should have let him tell the jury that he did not seek medical care for a time because he could not afford it. We find no error and, thus, affirm.

FACTS

Florine Arrington rear-ended Duke Ma'ele when he was stopped at a stoplight. Ma'ele sued Arrington for damages. The trial court ruled that Arrington was solely at fault for the accident; the only issue at trial was damages.

Before trial, the court ordered Arrington to provide discovery, to Ma'ele about other cases her defense expert, Dr. Tencer, had worked on. Ma'ele asked for case names and numbers among other information. Arrington provided only a list of attorneys. Tencer testifies frequently, but he claimed to keep no records about case names or numbers. The court refused to exclude Tencer's testimony as Ma'ele requested.

At trial, Ma'ele called two chiropractors who testified that the accident injured him and that he would have long-term effects. The defense chiropractor testified that Ma'ele was not seriously or permanently injured. Dr. Tencer, a biomechanical engineer and defense expert, testified about the amount of force involved in low-speed collisions. He concluded that based on his own and other studies in the field, he would not expect a person to be injured in the Arrington-Ma'ele collision.

Ma'ele, a military employee, moved to Kansas City after the accident and later moved back to Washington. Ma'ele wanted to testify that he did not receive medical care while in Kansas City because he could not afford it; he did not want the jury to think he stopped having care because he did not need it. But the trial court refused to allow the testimony, reasoning that it would lead to a collateral issue—insurance.

The jury found that Arrington's negligence did not proximately cause injuries to Ma'ele and awarded no damages. The trial court denied Ma'ele's motion for a new trial, and he now appeals.

ANALYSIS

I. New Trial

Ma'ele asserts that the trial court should have granted his motion for new trial. He says that the evidence does not support the verdict and, therefore, it must have been the result of passion or prejudice, and he claims that the jury did not do substantial justice. CR 59. Arrington replies that Dr. Tencer's testimony supports the verdict and that the jury did not award damages because they believed the crash could not have hurt Ma'ele.

The trial court may grant a new trial if the damage award unmistakably suggests that the jury reached the verdict because of passion or prejudice. CR 59(a)(5). A new trial is also appropriate if there is no evidence or reasonable inference to justify the verdict, or if the jury did not do substantial justice. CR 59(a)(7), (9). We review the trial court's decision on a motion for a new trial for abuse of discretion. Palmer v. Jensen, 132 Wash.2d 193, 197, 937 P.2d 597 (1997). While we may order a new trial, appellate review is narrow and we rarely exercise the power. Washington State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122 Wash.2d 299, 330, 858 P.2d 1054 (1993).

Two doctors testified that the car accident injured Ma'ele and he would suffer ongoing effects. The defense doctor, Dr. McMillin, testified that Ma'ele likely suffered a mild strain from the accident and that most of his injuries were unrelated to the accident.

But Dr. Tencer, a biomechanical engineer, testified that a crash like this one generally does not cause injuries. Tencer has extensively studied low-speed collisions; he calculated the maximum force that could have impacted Ma'ele's body, opining that his own and other research shows that such force does not injure people. The jury was entitled to believe Tencer over any of the other witnesses. Cox v. Charles Wright Acad., Inc., 70 Wash.2d 173, 176, 422 P.2d 515 (1967).

Ma'ele cites many cases where the jury awarded special, but not general damages.¹ In each case, the plaintiff was entitled to a new trial because the jury found that the accident caused injuries but believed the plaintiff suffered no pain. See, e.g., Palmer, 132 Wash.2d at 203,

937 P.2d 597. The cases are distinguishable. The jury here found that the accident did not injure Ma'ele. The only question is whether the evidence supports this conclusion. Palmer, 132 Wash.2d at 201-02,

937 P.2d 597. It does.

II. Expert Testimony

A. Admissibility of Tencer's Testimony

Ma'ele argues that a party must offer medical testimony to show the connection between accident and injury, and Tencer, according to Ma'ele, was not qualified to give such an opinion. In addition, he argues that the court should not have let Tencer testify because he and the defense did not comply with the court's order compelling discovery. Arrington responds that Tencer did not have the information Ma'ele asked for and that Ma'ele suffered no prejudice because he cross-examined Tencer at length about his work on similar cases.

The first question is whether Tencer's research about forces in low-speed collisions is "`generally accepted in the scientific community, thus satisfying the Frye test for admissibility.'" Kaech v. Lewis County Pub. util Dist. No. 1, 106 Wash.App. 260, 272, 23 P.3d 529 (2001),review denied, 41 P.3d 485 (2002) (citations omitted). We review de novo a trial court's decision to admit scientific evidence under Frye. Kaech, 106 Wash. App. at 272,

23 P.3d 529.

Tencer has been studying low-speed impacts for five years. His conclusions have been "pretty much" accepted. RP at 278-79. He teaches at the University of Washington Medical School, he has received a federal grant for his research, and he has written a number of articles about the likelihood of injuries in low speed accidents. Although Dr. Woodburn, a chiropractor, testified differently about the forces involved in low-speed collisions, other researchers around the world have reached conclusions similar to Tencer. The trial court did not err in ruling that Tencer's work on low-speed collisions is generally accepted in the scientific community.

The next question is whether the witness qualifies as an expert and whether his testimony is helpful to the jury. ER 702. Again, we review the trial court's ER 702 decision for abuse of discretion. Kaech, 106 Wash.App. at 273, 23 P.3d 529.

ER 702 states: "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." Tencer has a Ph.D in engineering, teaches at a reputable medical school, and does federally funded research. His education and experience qualified him as an expert. His testimony about the force involved in low-speed collisions and the impact on the body helped the jury determine whether Ma'ele got hurt in this accident. The trial court did not err in allowing Tencer to testify as an expert.

Ma'ele cites two cases to support his claim that only medical testimony can show causation. O'Donoghue v. Riggs, 73 Wash.2d 814, 440 P.2d 823 (1968); Miller v. Staton, 58 Wash.2d 879, 365 P.2d 333 (1961). These cases are distinguishable. In both O'Donoghue and Miller, the medical expert testified that he could not say with any certainty what caused the plaintiff's injuries. O'Donoghue, 73 Wash.2d at 821, 440 P.2d 823; Miller, 58 Wash.2d at 885-86, 365 P.2d 333. Medical causation must be established by a more-likely-than-not standard. Miller, 58 Wash.2d at 886, 365 P.2d 333. To offer testimony that something could have been a cause forces the jury to impermissibly speculate. Miller, 58 Wash.2d at 886, 365 P.2d 333.

In contrast, Tencer opined that the maximum possible force in this accident was not enough to injure a person. And this was not a medical opinion; Tencer expressed no opinion about Ma'ele's symptoms or possible diagnosis from those symptoms. He did not say that Ma'ele was uninjured in the crash, although the jury was entitled to infer that from his testimony. See Wise v. Hayes, 58 Wash.2d 106, 108, 361 P.2d 171 (1961). Tencer simply testified about the nature of the forces involved in low speed collisions and the likelihood of injury from such forces.

B. Order to Compel

The trial court ordered Arrington to provide Ma'ele with information about Tencer's work in other cases. Arrington provided a list of attorneys Tencer worked with; but Arrington did not supply case names or numbers or billing information because Tencer apparently did not keep such information. The trial court has broad discretion in fashioning a...