      F II:E'
        IN CLEitiCI OPP1CI  .'
llJIREME COURT, IDa'IGF. ...._

    1M         AUG _z 8 2014l

~~

      IN THE SUPREME COURT OF THE STATE OF WASHINGTON




  CATHY JOHNSTON-FORBES,                 )
                                         )      No. 89625-9
                         Petitioner,     )
                                         )
          v.                             )      EnBanc
                                         )
  DAWN MATSUNAGA,                        )
                                         )
                          Respondent.    )
  ----~~-----··---·-----·
                                         )      Filed         AUG 2 8 2014


          C. JOHNSON, J.-This case concerns whether, under Evidence Rules (ER)

  702 through 705, the trial court properly admitted expert biomechanical testimony

  in an automobile collision case. In August 2006, Dawn Matsunaga rear-ended the

  car that Cathy Jobnston-F~rbes was riding in. Johnston-Forbes claimed that she

  suffered injuries as a result of the collision and sued Matsunaga. Before trial,

  Matsunaga identified Dr. Allan Tencer as an expert who would be testifying as a

  biomechanical engineer. In a motion in limine, Johnston-Forbes moved to exclude

  Tencer's testimony, arguing that he was not qualified as an engineer, that his

  opinion lacked sufficient foundation, and that in viewing photographs he could not
Johnston-Forbes v. lvfatsunaga, No. 89625-9


account for Johnston-Forbes's precise body position at the time of impact. The trial

court limited Tencer's testimony but denied Johnston-Forbes's motion, and the

jury returned a verdict for Matsunaga. The Court of Appeals affirmed. We affirm

the Court of Appeals.

                                       FACTS

      Johnston-Forbes is a professional golfer. Once a year, the Ladies

Professional Golf Association (LPGA) holds a tournament in the

Portland/Vancouver area. Johnston-Forbes, her husband, and her two young

daughters came to Vancouver for the tournament in August 2006. After she

finished her first round, Johnston-Forbes and her family were heading back to their

hotel room, driving in a Toyota Camry rental car. Johnston-Forbes was seated in

the backseat between two car seats holding her two young daughters. They had

come to a complete stop for a red light. Johnston-Forbes was leaning forward and

twisted back and to the left, facing one of her daughters, when the car was struck

from be.hind by Matsunaga's Ford Mustang.

      Johnston-Forbes testified that she started experiencing headaches and pain

and stiffening of the muscles of her neck that evening. The pain continued, and

while the pain in her back eventually resolved, the pain in her neck did not. In

2010, four years after the accident, an MRI (magnetic resonance imaging) revealed



                                          2
Johnston-Forbes v. ll1atsunaga, No. 89625-9


that Johnston-Forbes had a herniated disc in her neck. She did not return to the

LPGA tour.

      In May 2009, Johnston-Forbes sued Matsunaga for general and special

damages arising from Matsunaga's alleged negligence in the 2006 car accident.

Matsunaga admitted that she struck Johnston-Forbes's vehicle but denied that the

collision caused Johnston-Forbes's injuries. Johnston-Forbes moved in limine to

exclude the vehicle damage photographs and the expert testimony of Tencer. 1

Johnston-Forbes mo\red to exclude Tencer's testimony on three grounds:

       1)   Qualifications- Mr. Tencer is not a licensed professional
            engineer and V\T ashington prohibits anyone who is not licensed in
            Washington as a professional engineer from giving engineering
            opmwns.
       2)   Foundation- Mr. Tencer only viewed pictures taken of
            defendant's vehicle. He did not examine her vehicle. More
            importantly, he did not examine any pictures of plaintiffs rental
            car and never examined that car either. In addition, Mr. Tencer
            cannot account for how plaintiffs precarious body position at the
            time [ofJ impact will increase her propensity for injury.
       3)   Confusing, misleading, and unfairly prejudicial- Given the lack
            of foundation and plaintiffs precarious body position at the time
            of impact, any opinion as to the forces plaintiffs neck
            experienced at the time of impact is speculative, [will] mislead
            and confuse the jury and [will] unfairly prejudice plaintiff.

Clerk's Papers (CP) at 8-9.


··---·----- ---·
       1
         Admission ofthe photographs is not before us. Johnston-Forbes argued that the vehicle
damage photographs were "incomplete, taken too remote in time and will tend to confuse and
mislead the jury and are unfairly prejudicial." Clerk's Papers at 15.


                                               3
Johnston-Forbes v. Matsunaga, No. 89625-9


      Matsunagaresponded that Tencer has studied accidents like this many times,

published hundreds of papers on biomechanics specifically relating to the forces

involved in low speed impacts, and performed several hundred tests in the field of

biomechanics. Tencer has a doctorate in mechanical engineering and was a

professor in biomechanical engineering at the University of Washington for 23

years. In his report, Tencer stated that he reviewed the photos of Matsunaga's Ford

Mustang, a repair bill for Johnston-Forbes's Toyota Camry, and depositions of

Johnston-Forbes and Matsunaga related to the accident. Additionally, he reviewed

engineering data on both vehicles and bumper crash test information on the

Toyota. He also personally performed   i~pact   tests on both bumpers.

      Matsunaga further clarified that (1) Tencer's testimony would discuss solely

biom~chanics,   focusing on the forces exchanged and the capacity for injury, (2) he

would not testify about whether there 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.

       The trial court denied Johnston-Forbes's motions to exclude Tencer's

testimony and the photographs ofl\1atsunaga's vehicle, but limited Tencer's

testimony by excluding the repair bill for Johnston-Forbes's rental car and by

instructing ~atsunaga to tailor Tencer's. testimony so as not to refer to the repair



                                          4
Johnston-Forbes v. Matsunaga, No. 89625-9


bill. At trial, Tencer testified generally about the forces acting on the two vehicles

and Johnston-Forbes's body during the collision. Johnston-Forbes's 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's 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)

Jor111ston-Forbes's 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 testified that one year after the collision, she was involved

in a golf. cart collision in which she ±1ew forward and hit her chest on the steering
 '     .             ..   '




wheeL_ She also acknowledged that she had been in a snowboarding accident in

2009. The jury returned a special verdict of no. on the question of whether
    .  .   .          .          '                              .

Matsunaga's negligence proximately caused Johnston-Forbes's injuries .
     .,                          '·




          Johnston-Forbes appealed, arguing that the trial court erred in denying her

motion in limine to exclude Tencer's testimony for a number of reasons. The Court

of Appeals rejected all ofher arguments and affirmed. Johnston-Forbes v.

Matsunaga, 177 Vvn. App. 402, 311 PJd 1260 (2013), review granted, 179 Wn.2d

1022,320 P.3d 718 (2014).




                                             5
Johnston-Forbes v. Matsunaga, No. 89625-9


                                       ANALYSIS

    .. Generally, expert testimony is admissible if (1) the expert is qualified, (2)

the expert relies on. generally accepted theories in the scientific community, and (3)

the testimony would be helpful to the trier of fact. In applying this test, trial courts

are afforded wide discretion and trial court expert opinion decisions will not be

disturbed on appeal absent an abuse of such discretion. In re Marriage ofKatare,

175 \Vn.2d 23, 38, 283 P.3d 546 (2012), cert. denied,_ U.S. __ , 133 S. Ct. 889,

184 L. Ed. 2d 661 (2013). Ifthe basis for admission ofthe evidence is '"fairly

debatable,"' we will not disturb the trial court's ruling. Grp. Health Coop. ofPuget

Sound, Inc. v. Dep 't of Revenue, 106 Wn.2d 391, 398, 722 P.2d 787 (1986)

(internal quotation marks omitted) (quoting Walker v. Bangs, 92 Wn.2d 854, 858,

601 P.2d 1279 (1979)).

       In Washington, there are four main Evidence Rules regarding the use of

expert witnesses. ER 702 generally establishes when expert testimony may be

utilized at trial: "If scientific, techn~cal, 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."




                                            6
Johnston-Forbes v. Matsunaga, No. 89625-9


      ER 703 allows an expert to base his or her opinion on evidence not

admissible in evidence and to base his or her opinion on facts or data perceived by

or made known to the expert at or before the hearing. 2 ER 704 allows an expert to

testify on an ultimate issue the trier of fact must resolve. 3 Finally, ER 705 indicates

that an expert need not disclose the facts on which his or her opinion is based,

although the court may require their disclosure and the expert may be subject to

cross-examination on them.

       With these standards in mind, 've turn to the admissibility of biomechanical

engineering expe1t testimony. It is not remarkable that trial judges have sometimes

allowed biomechanical engineering testimon:y:,-and-specifically-Tencer-'-s-testimony,

where sometimes trial judges have excluded it. For example, in Ma 'ele v.

Arrington, 111 ·wn. App. 557, 560, 45 P.3d 557 (2002), the Court of Appeals

afftrmed the trial court's decision to allow Tencer to testify. The court held that

Tencer's testimony about the force involved in low-speed collisions and the impact




              ------·--
       2
         "The facts or data in the particular case upon which an expert bases an opinion or
inference may be those perceived by 01' made known to the expert at orbefore the hearing. If of a
type reasonably relied upon by experts in the particular field in forming opinions or inferences
upon the subject, the facts or data need not be admissible in evidence." ER 703.
       3
         "Testimony in the form of an opinion or inferences otherwise admissible is not
objectionable because it embraces an ultimate issue to be decided by the trier of fact." ER 704.


                                                7
Johnston-Forbes v. Matsunaga, No. 89625-9


on the body would assist the jury to determine whether Ma'ele was injured in the

accident at issue in that case.

      On the other hand, in Stedman v. Cooper, 172 Wn. App. 9, 292 P.3d 764

(2012), the trial court excluded Tencer's testimony and the Court of Appeals

affirmed. The Court of Appeals held that the trial court did not abuse its discretion

when it found that Tencer's opinion may be more misleading than helpful. 4 When

discussing the trial court's admission of Tencer's testimony in Ma 'ele, the court in

5'tedman noted that

               .[t]he fact that an appellate court has affirmed a decision
     ·. allowing Tencer's testimony does not, of course, necessarily mean
        that the trial court erred by excluding his testimony in this case. The
        broad ·standard ·of abuse of discretion means that courts can reasonably
        reach different conclusions about whether, and to what extent, an
        expert's testimony will be helpful to the jury in a particular case.

Stedman, 172 Wn. App. at 18. In other words, the Stedman opinion referenced the

idea that trial courts, in deciding whether to admit or exclude Tencer's testimony,

have·reached opposite conclusions. This appears consistent with the approach ER

7()2 through 705 contemplate. That is, in each case a trial court's decision is guided




             ----·--·
       4
      ·  Following Stedman, the Court ofAppeals, Division One, held again that it was not an
abuse of discretion to exclude Tencer'~ testimony in Berryman v. Metcalf, 177 Wn. App. 644,
654, 312P.3d 745 (2013), review denied, 179 ,Wn.2d 1026, 320P.3d 718 (2014).


                                              8
Johnston--Forbes v. J\1/atsunaga, No. 89625-9


by the requirements of the rules in balancing the factors to determine whether such

testimony should be admissible in the context of the specific facts in each case.

      Here, the Court of Appeals affirmed the trial court's denial of Johnston-

Forbes's motion to exclude Tencer's testimony. The Court of Appeals reasoned

that Tencer did not offer a medical opinion, as he did not opine as to whether the

forces involved in the crash would have caused injuries to anyone in general or to

Johnston-Forbes in particular. Moreover, the Court of Appeals recognized that

'G[t]he force o.f impact-whether slight or significant-is often relevant in personal

injury cases." Johnston-Forbes, 177 Wn. App. at 410.

      As outlined above, the rules of evidence reflect the widely held view that a

reasoned evaluation of the facts is often impossible without the proper application

of scientific, technical, .or specialized knowledge. As a result, trial courts are given
  '        I   .   ,   ',




broad discretion to determine the circumstances under which expert testimony will

be allowed. See, e.g., Philippides v. Bernard, 151 Wn.2d 376, 393, 88 P.3d 939

(2004). The trial court in this case followed the analytical framework required

under the ERs and restricted and limited Tencer's testimony. The trial court

excluded .the repair bill reviewed by Tencer and, as a result, instructed the parties
 . .
that Tencer could not testify about the repair bill. Moreover, Matsunaga's counsel

assured the court that Tencer would not testify about any injuries Johnston-Forbes



                                            9
Johnstorr-Forbes v. Matsunaga, No. 89625..;9


did or did not sustain as a result of the collision, and on cross-examination, Tencer

repeatedly stated during his testimony that he was not testifying about Johnston-

Forb~s' s       injuries. Given his training and experience and the limits of his expertise,

Te?ce~       appropriately did not opine on the injuries Johnston-Forbes may have

sustained and the trial court properly limited any testimony that would tie in

Tencer's observations about force of impact in relation to Johnston-Forbes's

injuries. 5 Because the trial court performed its proper gatekeeping function, we

affirm.

            As laid out above, under the general framework governing the admissibility

of expert testimony, such testimony is admissible if the expert is qualified and

relif;;~s   on gen~rally_ accepted theories and the testimony would be helpful to the trier

of fact. When applying this test, trial courts are afforded wide discretion, and trial

court expert opinion decisions will not be disturbed on appeal absent an abuse of

such discretion. Katare, 175 Wn.2d at 38. Johnston-Forbes moved to exclude
   '                                    .


Tencer's testimony, arguing that he was not qualified; there was no proper

foundation; and his testimony was confusing, misleading, and fairly prejudicial.



            5
          In his written report Tencer stated, "Since the forces acting on Ms. Johnston-Forbes in
this accident were low, relative to forces experienced in daily living, my conclusion is that the
accident is not a likely source of significant forces acting on Ms. Johnston-Forbes' body." CP at
56. ,This report was never submitted to the jury, and Tencer did not testify about whether the
accident was or was not a significant force acting on Johnston-Forbes's body.


                                                 10
Johnston-Forbes v. Matsunaga, No. 89625-9


     ·· First, the trial court found Tencer qualified to testify as an expert based on

his years of experience in the field ofbiomechanical engineering. While Johnston-

Forbes argues. that Ten.cer is not licensed in Washington and so cannot testify as an

engineer, we have _repeatedly held that "an expert may be qualified by experience

alone." Katare, 175 Wn.2d at 38. Licensure may be relevant to a trial judge in

deciding admissibility of expert testimony, but lack of a license does not, in all

cases, require exclusion. Here, Tencer has a doctorate in mechanical engineering

and was a professor in biomechanical engineering at the University of Washington

for 23 years. The trial court found that Tencer is qualified by his combined

expenences.

      Second, it is not at issue whether Tencer's methods are generally accepted

by the scientific community. As the Court of Appeals concluded,

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

Johnston-Forbes, 177 Wn. App. at 407-08 (citing Frye v. United States, 54

App. D.C. 46, 293 F. 1013 (1923)).

                                            11
Johnston-Forbes v. Matsunaga, No. 89625-9


      Third, we find no abuse of discretion for the trial court to conclude

that Tencer's testimony:was relevant and helpful to the jury. Because fault

was not at issue and because it was undisputed that Johnston-Forbes had a

herniated disc in her neck, the jury was charged with determining

causation-i.e., whether Matsunaga's actions were the cause of Johnston-

,J.,'orbes's hem.iated disc. In this case, Tencer's testimony helped the jury

understand what forces might have been involved in the collision and he

compared those· forces to activities of daily living. He was cross-examined

on this conclusion. It was then up to the jury to determine whether they

beUeved    Jol:~nston-Forbes   experienced the same force of impact and, if so,

whether that caused her injury.

        Finally, in her motion to exclude Tencer's testimony, Johnston-Forbes

argued that Tencer lacked the necessary foundation to testify about the forces

~nvolved   in the collision because he did not physically examine the rental vehicle,

he did not have an adequate description of the repair work done, Matsunaga took

the photographs of her own vehicle three years after the collision, and Tencer did

not consider Johnston-Forbes's awkward positioning at the time of the collision.

While   exp~rt   opinions lacking an adequate foundation should be excluded, Walker

v. State. 121 Wn.2d 214, 218, 848 P.2d 721 (1993}, under ER 703 "an expert is not



                                             12
Johnston-Forbes v. _Mc7tsunaga, No. 89625-9


always required to personally perceive the subject of his or her analysis." Katare,

175 Wn.2d at 39. We have held that an expert's testimony "not based on a personal

evalucttion of the subject goes to the testimony's weight, not its admissibility."

Katare, 175 \Vn.2d. at39. Before. allowing an expert to render an opinion, the trial

court must find that there is an adequate foundation so that an opinion is not mere

speculation, conjecture, or misleading. It is the proper function of the trial court to

scrutinize the expert's underlying information and determine whether it is

sufficient to form an opinion on the relevant issue. Here, the trial court did just that

and determined an adequate foundation had been established.

       Under the ERs we find no abuse of discretion for the trial court here to allow

Tencer to testify. The trial court limited Tencer's testimony and Tencer did not

provide any express opinion on injury. The trial court, in deciding the motion to

exelude Tencer's testirnony, although denying the motion, ordered limitations and

restrictions on the testimony and properly applied the required framework under

the rules.




                                           13
Johnston-Forbes v. Matsunaga, No. 89625-9


     The Court of Appeals is affirmed.




WE CONCUR:




                                         14
johnston-Forbes v. Matsunaga, No. 89625-9
Yu, J. (concurring)




                                        No. 89625-9

      YU, J. (concurring)-In affirming the Court of Appeals today, the majority

articulates the proper framework for determining the admissibility of expert

testimony; generally, expert testimony is admissible if "(1) the expert is qualified,

(2) the expert relies on generally-accepted theories in the scientific community,

and (3) the testimony is relevant and helpful to the trier of fact." See majority at 6.

While I concur with the majority's articulation of the evidentiary framework that

trial courts should utilize, I write to caution that our decision is not an endorsement

of Tencer or the use of biomedical engineers in cases concerning soft tissue

injuries caused by car accidents. Moreover, our decision in this case does not

overrule Stedman v. Cooper, 172 Wn. App. 9, 292 P.3d 764 (2012) and Berryman

v. Metcalf, 177 Wn. App. 644, 654, 312 P.3d 745 (2013), review denied, 179

Wn.2d 1026, 320 P.3d 718 (2014), or the sound analysis provided by the Court of

Appeals, Division One, on the question of whether such testimony is helpful. See,

e.g., Stedman, 172 Wn. App. 9.




                                            1
johnston-Forbes v. Matsunaga, No. 89625-9
Yu, J. (concurring)




      The case-by-case nature of this inquiry stands for the proposition that an

expert permitted to testify in a particular case does not bind future courts to

automatically admit the same expert, even in a relatively analogous case. Rather,

in the exercise of discretion, the trial court must perform a new fact-specific

inquiry concerning the admissibility of an expert in every given case. Before

allowing an expert to render an opinion, trial courts must scrutinize the expert's

underlying information and determine whether it is sufficient to form an opinion

on the relevant issue to ensure that the opinion is not mere speculation, conjecture,

or misleading to the trier of fact. Stedman, 172 Wn. App. at 18.

       There is no "one size fits all" approach to collisions or injury threshold

levels, or whether comparisons to daily activities are always relevant in a particular

case. In this case, I am dubious whether an expert can testify about the forces

involved in a particular car accident by looking at pictures of the defendant's car

taken three years after the collision, reviewing generic engineering data on a type

of car, and a car repair bill. However, the trial court is in the best position to make

these decisions after becoming familiar with the record and the specific issues in

each case. I respectfully concur.




                                            2
johnston-Forbes v. Matsunaga, No. 89625-9
Yu,   J. (concurring)




                                            3
