                                                                                                                     FILED
                                                                                                             COURT DP APPEALS
                                                                                                                  DIVISIIOP II

                                                                                                           2013 OCT 29    Aar 9: lab




      IN THE COURT OF APPEALS OF THE STATE OF WASHI

                                                             DIVISION II

CATHY JOHNSTON- FORBES,                                                                      No. 43078 -9 -II


                                                Appellant,


            V.



DAWN MATSUNAGA,                                                                         PUBLISHED OPINION




            HUNT, J. —         Cathy Johnston- Forbes appeals the jury' s special verdict' 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


                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



  Johnston- Forbes assigns error to only the trial court' s denial of her pretrial motion to exclude
Allan Tencer' s expert testimony. At the end of her opening and reply briefs, however, she asks

us   to "   remand     to the trial court            for   a new   trial,"   Br. of Appellant at 43, and to " reverse the trial
court' s        judgment."   Reply        Br.   of   Appellant     at   25. See also notice of appeal from the " judgment."
Clerk'      s   Papers ( CP)   at   65.
No. 43078 -9 -II




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.


             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


             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.


             Johnston- Forbes moved in limine to exclude the vehicle damage photographs                        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




2Johnston- Forbes argued that the vehicle damage photographs were " incomplete, taken too
remote in time and [ would] tend to confuse and mislead the jury and [ were] unfairly prejudicial."
CP     at   41.   Admission of these photographs, however, is not before us in this appeal.




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No. 43078 -9 -II



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.


          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).


          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




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No. 43078 -9 -II



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.


          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

                                                                                                                                    3
replied, "     Correct. I' m just       describing           the   forces that    she   probably felt    during    the   collision. "    3


VRP at 340.


          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.




3 In response to Johnston- Forbes' questions on cross -examination, Tencer testified about the
amount of " tissue stretch" caused by the impact. 3 VRP at 358. Johnston- Forbes also asked
Tencer: "       So    wouldn'   t   you also agree ...              if [the] distance between the          seat and ...        driver, the
greater   it   got,   the greater the       chance of       injury? Wouldn' t you           agree   to that ?" 3 VRP at 365.            He
replied, "     Yeah. Again, let'       s   leave the      injury term out of it." 3         VRP at 365.




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No. 43078 -9 -II



                                                              ANALYSIS


             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
                                                                     4; (
the   scientific      community, in           violation of    Frye          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
              5
and    403.        Br. of Appellant at 28. These arguments fail.

                                               I. UNPRESERVED FRYE CHALLENGE


             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 Wn.             App.     728, 755, 187 P. 3d 803 ( 2008),                  affd, 170 Wn.2d 302, 241 P. 3d 1234

    2010).        Accordingly, we do not further address Johnston- Forbes' Frye challenge to Tencer' s

expert testimony.




4
    Frye v. United States, 54 App. D. C. 46, 293 F. 1013 ( 1923).
5
     Although Johnston- Forbes told the trial                       court    that      she    had   no "   problem with Mr. Tencer

testifying," based on the full record of this hearing; we reject Matsunaga' s request to treat this
 colloquoy         as a waiver of       her   motion   in limine. 1 VRP at 20.



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No. 43078 -9 -II



                                       II. OTHER EXPERT TESTIMONY CHALLENGES


                                                       A. Standard of Review


          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 Wn.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. 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)).                               Washington appellate courts generally do

not weigh expert         testimony.           See In re Marriage of Sedlock, 69 Wn. App. 484, 491, 849 P. 2d

1243 ( 1993).


                                                        B. Medical Opinion


          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
                               6,
stairs'   or `   jogging "')        the "   clear message ...        was that this collision could not have injured [the]


plaintiff."      Br. of Appellant at 27.


          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


6 Br. of Appellant at 25 ( citing 3 VRP at. 325 -26).

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No. 43078 -9 -II




acting    on     Johnston- Forbes'           body.    We hold that an expert' s description of forces generated

                                                               7
during    a collision      is   not medical      testimony.

           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 Wn.             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 degree to which these particular plaintiffs were injured in this

particular accident. "'           Stedman, 172 Wn. App. at 18 -19.

           The Stedman court noted that Tencer did not provide medical testimony, but suggested

that his opinions were misleading anyway:

                        Tencer declared that ... "[
                                           he] never described any threshold for injury in
               his]        Emphasizing that he testifies from a biomechanical rather than a
                      opinions."'

           medical perspective, he disavowed any intention of giving an opinion about
           whether        Stedman       got   hurt in the     accident.    Nevertheless, his clear message was
           that Stedman could not have been injured in the accident because the force of the
           impact was too small.   Indeed, according to [ the defendant' s] brief, Tencer' s
           conclusion           was     exactly    that:    the forces generated by the impact were not
           sufficient to cause the type of injuries Stedman was claiming.

Stedman, 172 Wn.                App.   at   20 ( footnotes   omitted).     The Stedman court also implied that Tencer' s


opinions should be excluded because they improperly allowed the jury to infer that the minimal

accident forces could not have caused injury. See Stedman, 172 Wn. App. at 19 -20.


7 In a different case, we have previously held Tencer' s testimonythat "the maximum possible
force in [ the]        accident was not enough             to injure   a person" —was not a " medical opinion."     Ma' ele
v.   Arrington, 111 Wn.               App.    557, 564, 45 P. 3d 557 ( 2002).        Because Tencer provided no such

testimony here, we do not need to address whether that holding remains good law.

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No. 43078 -9 -II



         To the extent that the Stedman court suggested that the 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,   we    disagree.          The force   of   impact— whether        slight   or   significant —is   often


relevant    in   personal      injury   cases.      See Murray v. Mossman, 52 Wn.2d 885, 888, 329 P.2d 1089

 1958) (   admission of automobile accident photographs not reversible error because they tended

to   show "   force      and   direction     of   the impact" that   resulted   in   injury);   Taylor   v.   Spokane, P. & S.


Ry. Co.,      72 Wash. 378, 379 -80, 130 P. 506 ( 1913) ( photograph properly admitted to show


 probable force of the impact" where force of impact was material to whether passenger was


actually injured).         And there is nothing improper about allowing the jury to draw inferences from

evidence explaining force of impact, as well as from other evidence, in determining proximate

cause.     We again emphasize the standard of review for a trial court' s decision to allow or to

exclude     expert       testimony: " 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.

           Here, we hold that the trial court did not abuse its discretion in denying Johnston- Forbes'

motion to exclude Tencer' s force of impact testimony, especially in light of Matsunaga' s limiting

Tencer' s testimony such that he did not offer any opinion about whether the forces in the

accident were or were not sufficient to cause injury.




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No. 43078 -9 -II



                                               C. Engineering Opinion

         Johnston- Forbes      next    challenges      Tencer'    s    testimony because he " is not a licensed

engineer,   thus he cannot testify to the engineering principles that form the basis of his
           8
opinions. "    Br. of Appellant at 28. Johnston- Forbes is incorrect.


         ER 702 provides:


                    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.

Nothing in ER 702 requires an expert witness to be licensed in his profession to give testimony.

On the contrary, practical experience alone may suffice to qualify a witness as an expert. State v.

Yates, 161 Wn.2d 714, 765, 168 P. 3d 359 ( 2007),                     cent.   denied, 554 U. S. 922 ( 2008).   We hold


that the trial court did not abuse its discretion in denying Johnston- Forbes' motion to exclude

Tencer' s expert testimony because he lacked an engineering license.

                                               D. Foundation Challenge


         Johnston- Forbes bases her challenge to Tencer' s testimony as lacking the necessary

foundation     on   the   following   assertions: (     1)   He neither physically examined Johnston- Forbes'

rental vehicle nor viewed        any    photographs of       it; (2) he did not have an adequate description of


the   repair work performed on         this   rental vehicle; ( 3)     Matsunaga took the photographs of her own


vehicle, which Tencer used in his analysis, approximately three years after the collision; and ( 4)




8 We note that the statutes governing the practice of engineering, which Johnston- Forbes cites in
her brief, do not control the trial court' s ability to conclude that a witness is qualified as an
expert. See ER 702; RCW 18. 43. 010.




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No. 43078 -9 -II



Tencer " did     not   have      sufficient    information to      consider [   Johnston- Forbes'] awkward positioning


in the   vehicle at    the time     of   impact." Br. of Appellant at 35. Again, we disagree.


          Johnston- Forbes'            challenges to Tencer' s testimony for lack of foundation go to the

weight of    the evidence, not            its admissibility.       See Kaech     v.   Lewis   County   Pub. Util. Dist., 106


Wn.   App.   260, 274 -75, 23 P. 3d 529 ( 2001),                review    denied, 145 Wn.2d 1020 ( 2002).          Moreover,


Johnston- Forbes ably raised these foundational challenges for the jury' s consideration during

Tencer'   s cross -examination.            We hold that the trial court did not abuse its discretion in denying

Johnston- Forbes' motion to exclude Tencer' s testimony for lack of foundation.

                                  E. Relevancy Challenge under ER 702 and ER 403

          Finally, Johnston- Forbes contends that Tencer' s testimony was not helpful to the jury, as

required    by   ER 702,      and   that its   probative value was "`         substantially outweighed by the danger of

unfair prejudice, confusion of             the issues,     or   misleading the    jury, "' in violation   of   ER 403.   Br. of


Appellant     at   36 ( quoting ER 403).            Johnston- Forbes focuses her argument on the prejudice she


claims she suffered as a result of               this   testimony: She argues that ( 1) her " medical evidence that

the   collision    caused        her   injury   was     strong ";    and (   2) had the trial court excluded Tencer' s


testimony,       the   jury' s    verdict would         have    likely   been different, namely in her favor.            Br. of


Appellant     at   39 -40.       The record does not support her characterization of the proceedings and


evidence.



          Although Johnston- Forbes testified that several hours after the accident she started


having     headaches       and pain and stiffness           in her    neck, she also     acknowledged      that ( 1)   one year



after the collision, in August 2007, she had been involved in a golf cart collision in which she


had flown forward and hit her chest on the steering wheel; and ( 2) two years later, in 2009, she



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No. 43078 -9 -II




had been involved in a snowboarding accident, in which she had fallen and fractured her thumb.

Consistent with Johnston- Forbes' description of her later sports -related accidents and injuries,


Matsunaga' s medical expert, Paul Tesar, testified that " there are many, many things in terms of

life   activities   that   can cause a   herniated disc,"   including        a " sneeze," "   a   swing," or any " slip and


fall "; this testimony       was uncontroverted.     2 VRP       at   142.       The record also shows that Johnston-


Forbes waited over two years before filing suit against Matsunaga and nearly four years after the

collision    before obtaining      an    MRI showing    a   herniated disc.          Based on this evidence, the jury

could have reasonably concluded that Johnston- Forbes' pain and injury related back to one of

these other previous accidents.



           As is the case with evidentiary rulings in general, we review a trial court' s ER 403 and

ER 702     rulings with great      deference   under a manifest abuse of             discretion     standard.   See State v.


Vreen, 143 Wn. 2d 923, 932, 26 P. 3d 236 ( 2001).                     We find no abuse of discretion in the trial


court' s   rejecting Johnston- Forbes'         ER 702 and ER 403 challenges as bases for excluding

Tencer' s testimony.

           We affirm.


                                                                             r
                                                                                     l
                                                                 Hunt, J.
We cnncrnr-




iwaxa, J.




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