Stedman v. Cooper

• Decision Date: 19 November 2012
• Docket Number: No. 66839–1–I.,66839–1–I.
• Parties: Patricia STEDMAN, a married woman, individually, Respondent, and Debra Braxton, a single woman, Plaintiff, v. Stacey COOPER and John Doe Cooper, husband and wife and the marital community comprised thereof, Appellants.
• Court: Washington Court of Appeals

172 Wash.App. 9

292 P.3d 764

Patricia STEDMAN, a married woman, individually, Respondent,andDebra Braxton, a single woman, Plaintiff,

v.Stacey COOPER and John Doe Cooper, husband and wife and the marital community comprised thereof, Appellants.

No. 66839–1–I.

Court of Appeals of Washington,

Division 1.

Nov. 19, 2012.

Marilee C. Erickson, Pamela A. Okano, Reed McClure, Seattle, WA, for Appellants.

Angela K. Wong, Wong Bauman Law Firm PLLC, Seattle, WA, for Respondent.

BECKER, J.

[172 Wash.App. 12]¶ 1 This car accident case went through mandatory arbitration and trial de novo, both times resulting in a damage award for the plaintiff. We conclude the trial court did not abuse its discretion by excluding defense biomechanical testimony about the physical forces involved in the collision, and accordingly the defendant's request for a new trial is denied. However, the court's determination that the defendant failed to improve her position on trial de novo is inconsistent with the Supreme Court's recent decision in Niccum v. Enquist, 175 Wash.2d 441, 286 P.3d 966 (2012). The award of attorney fees to the plaintiff is reversed and remanded with directions to enter judgment on the jury verdict only.

FACTS

¶ 2 One afternoon in January 2006, Patricia Stedman was driving her Ford Aerostar van westbound on a residential street in Seattle. Her sister was with her. Stedman noticed a car was in a recessed parking spot on her right side, with its front end pointed east toward oncoming traffic. As Stedman drew nearer, the car pulled forward out of the parking spot. The two vehicles collided along their right sides. The impact cracked the right front bumper of Stedman's van, dislodged the hubcap of her front wheel, and marked up the passenger side door.

¶ 3 The driver of the car was Stacey Cooper. She and Stedman exchanged contact information. Stedman was able to drive the van back home. The next day, she sought medical attention. Over the following months, Stedman saw medical doctors, chiropractors, and physical therapists.

¶ 4 Stedman sued Cooper in October 2008. The case went to mandatory arbitration. The arbitrator found Cooper at fault and awarded Stedman $16,300.00 in special damages and $7,000.00 in general damages, for a total of $23,300.00. Cooper filed a request for trial de novo. Stedman offered to settle for $23,299.99. Cooper declined the offer, and the case went to trial.

¶ 5 Before trial, Stedman learned that Cooper planned on calling Dr. Allan Tencer, a University of Washington professor of mechanical engineering, to testify about the severity of the force involved in the car accident. The court granted Stedman's motion to exclude Tencer. On Stedman's motion for summary judgment, the court ruled that Cooper was negligent as a matter of law, but there were issues of fact for trial as to whether Stedman was contributorily negligent and whether any injuries were caused or medical treatment necessary as a result of the accident.

¶ 6 At trial, Stedman described the accident as a sudden jolt that pulled her to the right, followed by her seat belt jerking her back into the seat and the movement of her steering wheel causing her to hit her face on the driver's side window. She testified about pain in her shoulder and lower back.

¶ 7 A doctor testified that the mechanism of injury was a jarring impact from the side that caused hyperextension and hyperflexion injuries to the joints in her neck and mid and low back, and injury to her sacroiliac joint. A chiropractortestified to a similar diagnosis. In the defense case, a doctor who had conducted a CR 35 examination of Stedman thought she had suffered a “pretty minor injury” and that not all of the treatment she received was related to the accident. A chiropractor called by the defense testified that much of the chiropractic care was unnecessary, the accident was not serious, and that Stedman had a soft tissue injury that probably resolved itself in about two months. The treatment providers agreed that Stedman's obesity and general lack of fitness made her unusually susceptible to an impact injury.

¶ 8 Cooper testified that she had been pulling out very slowly from where she had parked in front of her home. She estimated that Stedman was going more than 20 miles per hour when the two vehicles collided.

¶ 9 The jury found no contributory negligence by Stedman and awarded her $22,000.00 in damages. The court awarded statutory costs of $1,469.83. Stedman moved for attorney fees, contending that after costs were factored into the analysis, Cooper had failed to improve her position at trial. The court agreed and awarded Stedman $58,546.88 in attorney fees. Cooper appeals.

TIMELINESS OF APPEAL

¶ 10 A threshold issue raised by Stedman is whether Cooper's appeal was untimely. It was not. The judgment in favor of Stedman against Cooper was entered on January 25, 2011. Cooper appealed on March 17, 2011. In general, a notice of appeal must be filed within 30 days. RAP 5.2(a). However, a timely motion for reconsideration in the trial court will extend this time until 30 days after entry of the order deciding that motion. RAP 5.2(e). That is what happened here. Cooper moved for reconsideration, and the trial court denied the motion in an order entered on February 17. The appeal filed on March 17 was within the 30–day time limit.

¶ 11 Stedman argues Cooper's motion for reconsideration was actually a motion to vacate under CR 60 because it asked the trial court to “vacate” the judgment. The use of the term “vacate” to refer to the relief requested, however, does not change the fact that Cooper asked the court to reconsider the judgment in a timely motion brought under CR 59. We conclude the appeal is properly before us.

EXCLUSION OF EXPERT WITNESS

¶ 12 Cooper assigns error to the exclusion of Dr. Allan Tencer. Tencer has received government grants for research into the underlying mechanisms of injury to the cervical spine, and he has conducted tests aimed at developing improved car seat head restraints for prevention of impact injuries. He has written many peer-reviewed articles and book chapters related to the biomechanics of the human skeletal system. He has the training and experience to calculate forces between colliding objects.

¶ 13 The trial court reviewed Tencer's opinion letter and his declaration, and later heard his testimony as an offer of proof in support of Cooper's motion for reconsideration. Tencer's opinion letter stated that since the forces generated by the impact and transmitted to Stedman were “low, relative to forces experienced in daily living,” the accident was “not a likely source of significant forces” acting on her body.¹ The forces acting upon Stedman were “in the range of those found tolerable in testing we have performed on volunteers of a variety of ages, gender, and levels of fitness, related to development of improved head restraints for whiplash protection.” ²

¶ 14 Tencer's testimony for the offer of proof described the methodology he used to develop his opinion. First, using photographs, he sized the area of deformation of the bumper on Cooper's vehicle. Then, using his knowledge of the weights of the two vehicles and the crush strength of the bumper, he calculated the forward speed of Cooper's car and the sideways speed of Stedman's van.³ From that, he determined “the jolt,” or acceleration. ⁴ From that, he determined that the approximate force acting on the occupants of the van was 1.1G. “G force” is a term that refers to “acceleration of gravity.” ⁵

¶ 15 According to Tencer, 1.1G is a “jolt level” comparable to what would be generated by hitting a curb at three to five miles per hour while parking a car.⁶ Forces of 3 to 5 G are “fairly common” in daily activities.⁷ Tencer testified that in a study he was doing on injuries in soccer players, he found that the participants generated a force of 3G while just walking and running.⁸ Tencer also testified that in his opinion, it was unlikely that Stedman hit her head on the driver side window because her body should have moved in the opposite direction.⁹

¶ 16 In reviewing a trial court's exclusion of expert testimony under the rules of evidence, the standard is abuse of discretion. State v. Yates, 161 Wash.2d 714, 762, 168 P.3d 359 (2007), cert. denied,554 U.S. 922, 128 S.Ct. 2964, 171 L.Ed.2d 893 (2008). To be admissible, expert witness testimony must be relevant and helpful to the trier of fact. Anderson v. Akzo Nobel Coatings, Inc., 172 Wash.2d 593, 606, 260 P.3d 857 (2011). Conclusory or speculative expert opinions lacking an adequate foundation will not be admitted. Miller v. Likins, 109 Wash.App. 140, 148, 34 P.3d 835 (2001). When ruling on somewhat speculative testimony, the court should keep in mind the danger that the jury may be overly impressed with a witness possessing the aura of an expert. Miller, 109 Wash.App. at 148, 34 P.3d 835.

[172 Wash.App. 17]¶ 17 Tencer has testified as an expert witness in many similar cases. Attached to his declaration are 12 orders entered by various superior courts in Washington from 2004 to 2008, most of them denying motions to exclude his testimony.¹⁰ Two of the orders imposed limitations. One court permitted him to testify that the forces in the accident were “in the range of those experienced in normal activities (3–5g),” but barred him from expressing the opinion that the accident was “no more likely than other sources of daily forces to have resulted in the injuries claimed.” ¹¹ This limitation was imposed in part because the trial court did not view Tencer's testimony as helpful to the jury on that point.¹² Another court prohibited him from opining as to whether the specific forces involved in the collision were sufficient to cause injury. The order allowed him to testify about the range of forces found tolerable by the subjects in his tests but prevented him from using the volunteers in his studies as a basis of comparison for the injuries...