From the desk of Kyle Riley: Often times, issues arise in automobile accidents where experts must testify as to whether a plaintiff’s injuries could have occurred given the extent of damage to the vehicles. Plaintiffs attempt to challenge defendants’ experts in a multitude of ways, ranging from attacking credentials to arguing that the testimony will be irrelevant. A recent case provides some clarity, as to when biomechanical expert testimony will be permissible.
Claims Pointer: Insurers and their attorneys should be aware that testimony by a biomechanical expert about the forces acting on the two vehicles and on the body of the passenger is not an improper “medical opinion,” despite the fact that the expert is not a physician. Also, such an expert does not need an engineering license to testify to engineering principles which form the basis of the expert’s opinions. Defendants now have a shield against the multitude of ways plaintiffs attack defense experts.
Johnston-Forbes v. Matsunaga, — P.3d —-, 2013 WL 5800326 (2013).
In August 2006, Dawn Matsunaga’s (“Matsunaga”) vehicle struck, at a low speed, the rear end of a stopped vehicle in which Cathy Johnston-Forbes was a passenger. Johnston-Forbes believed she was fine; however, that evening she experienced stiffness in her neck. Several weeks later, Johnston-Forbes visited a hospital regarding lower back pain. The following year, she received periodic physical therapy treatments; and continued to complain to her doctor about neck pain. Approximately four years after the accident, an MRI revealed that Johnston-Forbes had a herniated disc in her lower neck.
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 struck Johnston-Forbes, but denied that the collision caused her injuries.
Johnston-Forbes moved in limine to exclude Matsunaga’s biomechanical expert testimony and photos of the vehicle damage. Johnston-Forbes argued that the expert testimony should not be admitted because the expert, Allan Tencer: (1) lacked qualifications as a licensed engineer and (2) he lacked foundation for his testimony because he only viewed photographs of Matsunaga and Johnston-Forbes’ vehicles, but did not physically examine them, and he failed to account for Johnston-Forbes’ body position at the time of the accident. Moreover, Johnston-Forbes argued, the photographs would be speculative, mislead and confuse the jury and prejudice her.
Matsunaga argued in response, that Tencer was an expert because he studied accidents, had performed a couple of hundred tests on biomechanics and published hundreds of articles on the subject. Tencer was able to determine the upper –limits as to what can happen in terms of the exchange of forces. Tencer would only testify as to biomechanics, which focused on the “forces exchanged and the capacity for injury”; he would not testify about whether there was actually any injury to Johnston-Forbes; and he would “talk about the forces and the limits” involved in the collision and compare them to “activities of daily living.”
The trial court denied Johnston-Forbes’ motions to exclude Tencer’s testimony and to exclude photographs of Matsunaga’s vehicle, which showed no visible damage. The trial court limited Tencer’s testimony by: (1) excluding a repair bill from Johnston-Forbes’ rental car because it was misleading in that it implied minimal damage and (2) the court instructed Matsunaga to “ tailor” Tencer’s testimony as to omit reference to the repair bill. Matsunaga also agreed to limit the number of photographs of her vehicle that she would present at trial.
At trial, the jury returned a verdict in Matsunaga’s favor, and Johnston -Forbes appealed. In the Washington Court of Appeals Johnston-Forbes argued that: (1) Tencer’s theory was not generally accepted in the scientific community, (2) he was not a physician and could not testify about the medical causes of injuries, (3) he was not a licensed engineer and he could not testify to the engineering principles which formed the basis for 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.
The Court denied Johnston-Forbes’ argument that Tencer’s theory was not generally accepted in the scientific community because the issue was raised for the first time on appeal.
The Court disagreed with Johnston-Forbes’ second argument, that Tencer was not a physician and could not testify as to medical causes of injuries. The Court held that an expert’s description of forces generated during a collision is not medical testimony. The Court acknowledged that the trial court has broad discretion to allow or deny expert testimony; and it also disapproved of Stedman v. Cooper, 172 Wn. App. 9 (2012), to the extent that the Stedman Court suggested that force of impact is always irrelevant or that it is improper for a jury to infer that minimal force did not cause injury in a particular case.
In addressing Johnston-Forbes’ third argument, that Tencer could not testify as to engineering principles because he was not a licensed engineer, the Court held that Tencer’s testimony should not be excluded simply because he lacked an engineering license. In doing so, the Court explained that nothing in ER 702 requires an expert to be a licensed professional to give testimony; and that an expert through practical experience may qualify as an expert witness.
Next, the Court addressed Johnston-Forbes’ foundational challenge. The Court held that the fact that Tencer did not physically examine Johnston-Forbes rental vehicle nor did he view photos of it, that Tencer did not have an adequate description of the repair work done on the rental vehicle, that Matsunaga took photos of her own vehicle more than 3 years after the collision and that Tencer did not have sufficient information to consider awkward positioning in the vehicle at the time of impact, all went to the weight of the evidence, rather than its admissibility.
Last, the court addressed Johnston-Forbes’ argument that Tencer’s testimony was not helpful to the jury, and that it caused unfair prejudice, confusion of the issues and/or was misleading to the jury. Specifically, Johnston-Forbes argued that the medical testimony that the collision caused her injuries was strong and, had the trial court excluded Tencer’s testimony, the jury verdict would have been in her favor. The Court of Appeals rejected this argument, noting that Johnston-Forbes testified that she had been involved in a golf cart accident in 2009, where she flew forward and hit her chest, and in the same year, she was involved in a snowboarding accident where she fractured her thumb. Matsunaga’s medical expert testified that many things can cause a herniated disk. Additionally, Johnston-Forbes waited over four years after the accident and nearly two years after the MRI showed a herniated disk, to bring her claim. The jury could have reasonably inferred, based on this evidence, that her pain and injury was related to one of the other subsequent incidents.
Case updates are intended to inform our clients and others about legal matters of current interest. It is not intended as legal advice Readers should not act upon the information contained in this email without seeking professional counsel.