                                                       or v
                                                              irtji




                                                ZOI'iDEC 15 A:, 9: 00




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

ALLYN LINDEMANN and STEVEN
LINDEMANN, wife and husband,                        No. 70448-6-1


                      Appellants,                   DIVISION ONE


              v.



TOYOTA MOTOR CORPORATION, a
Japanese corporation; TOYOTA
MOTOR SALES, U.S.A., INC., a
California corporation; TOYOTA                      UNPUBLISHED OPINION
MOTOR NORTH AMERICA, INC., a
California corporation;                             FILED: December 15, 2014

                      Respondents,

              and


JOCELYNNE WHEELER,

                      Defendant.



       Becker, J. — A drunk driver crossed the centerline and caused a collision

in which the plaintiff in this product liability suit was badly hurt. The plaintiff sued

the manufacturer of her own car, claiming the car did not adequately protect her

from the crash. In this appeal from a defense verdict, we conclude it was not

unfair for an expert witness to testify that the plaintiff's obesity was a factor in
No. 70448-6-1/2



determining the severity of her injuries. We also conclude the trial court's refusal

to give an eggshell plaintiff instruction does not warrant a new trial.


                                       FACTS


       Appellant Allyn Lindemann was driving her 2004 Lexus ES 330 on a two-

lane road in Redmond on June 7, 2009, on her way home from her son's high

school graduation. She was wearing safety belts and travelling about 20 miles

per hour. A Jeep Liberty traveling in the opposite direction crossed the centerline

traveling 55-60 miles per hour. The front left corners of the vehicles collided at a

15 degree angle.

       Lindeman's car was catastrophically damaged. The passenger

compartment was so deformed that it took paramedics more than 20 minutes to

extricate Lindemann. The front dash crumpled over her legs.

       Lindemann's legs were badly fractured. Her left thigh suffered extensive

degloving, an injury where the skin is severed from the underlying tissue. She

had a right pelvic fracture and bilateral rib fractures. She lost a lot of blood and

went into shock. Her injuries also included stroke and acute lung injury. She

was treated at Harborview Medical Center for more than six months.

       Lindemann brought suit against Toyota Motor Corporation, the

manufacturer of the Lexus. Her theory of the case was that a defective design at

the front end caused the passenger compartment to collapse around her and that

the resulting loss of occupant space caused her to suffer enhanced injuries over

and above the injuries that would have occurred ifthe car had been crashworthy.

See Baumaardner v. Am. Motors Corp., 83 Wn.2d 751, 522 P.2d 829 (1974);
No. 70448-6-1/3



Larsen v. Gen. Motors Corp., 391 F.2d 495 (8th Cir. 1968), cited by

Baumgardner, 83 Wn.2d at 754. Toyota defended the design and contradicted

Lindemann's proof of the extent of the deformation of the passenger

compartment. Toyota also challenged Lindemann's proof of causation and

claimed that because of the high crash forces imparted to the Lexus in the

collision, the injuries Lindemann experienced would have been the same even if

there had been no deformation of the passenger compartment.

      At the time of the collision, Lindemann, age 56, was obese. She was

about 5 feet 8 1/2 inches tall and weighed 239 pounds. Toyota proposed to

present testimony from an expert witness, Dr. Elizabeth Raphael, that factored

Lindemann's weight into Newton's second law of motion (force = mass x

acceleration) to calculate the force that the collision drove into Lindemann's lower

extremities. Dr. Raphael had stated in deposition that Lindemann needed to be

100 pounds lighter to avoid the critical injury to her pelvis. Lindemann moved in

limine to prohibit Dr. Raphael from "blaming" Lindemann's obesity for her injuries.

The trial court denied the motion.

      The trial took place over three weeks in the spring of 2013. No objection

was made to the three key instructions that framed the case for the jury:

                              INSTRUCTION NO. 8

              In a case for enhanced injuries, the plaintiff has the burden
       of proving each of the following propositions:
              First, that Toyota designed a defective 2004 Lexus ES 330
       that was not reasonably safe in reasonably foreseeable accidents
       or collisions; and
              Second, that the defective condition of the 2004 Lexus ES
       330 proximately caused the plaintiff injuries which she would not
No. 70448-6-1/4



      have otherwise sustained in the accident or collision, absent the
      product defect.
             The plaintiff need not prove that the defective condition of
      the product was a cause of the accident or collision itself, just that
      the defective condition of the product was a proximate cause of the
      enhanced injury or damage.
             If you find from your consideration of all of the evidence that
      each of these propositions has been proved against Toyota, then
      your verdict should be for the plaintiff on this issue. You should
      answer Question No. 2 of the verdict form "yes."
             On the other hand, if you find any of these propositions has
      not been proved against Toyota, your verdict on this issue should
      be for Toyota. You should answer Question No. 2 of the verdict
      form "no."

                                   INSTRUCTION NO. 9

            A manufacturer has a duty to design products that are
      reasonably safe as designed.
            There are two tests for determining whether a product is not
      reasonably safe as designed. The plaintiff may prove that the
      product was not reasonably safe at the time it left the
      manufacturer's control using either of these two tests.
            The first test is a balancing test. Under that test, you should
      determine whether, at the time the product was manufactured:
                   the likelihood that the product would cause
                      injury or damage similar to that claimed by the
                      plaintiff, and the seriousness of such injury or
                      damage outweighed the burden on the
                      manufacturer to design a product that would
                      have prevented the injury or damage, and the
                      adverse effect that a practical and feasible
                      alternative design would have on the
                    usefulness of the product.
             The second test is whether the product is unsafe to an
      extent beyond that which would be contemplated by the ordinary
      user. In determining what an ordinary user would reasonably
      expect, you should consider the following:
             a. the relative cost of the product;
             b. the seriousness of the potential harm from the
                   claimed defect;
             c. the cost and feasibility of eliminating or minimizing
                   the risk; and
             d. such other factors as the nature of the product and
                the claimed defect indicate are appropriate.
No. 70448-6-1/5


             If you find that the product was not reasonably safe as
       designed at the time it left the manufacturer's control and this was a
       proximate cause of the plaintiff's injury, then the manufacturer is at
       fault.


                            INSTRUCTION NO. 10

               A manufacturer of an automobile has a duty to design the
       product to be crashworthy, that is, the product must be reasonably
       safe in reasonably foreseeable accidents or collisions. Based on
       this duty, a manufacturer of an automobile is liable for that portion
       of the damage or injury caused by the product design or
       manufacturing defect over and above the injury or damage that
       probably would have occurred as a result of a reasonably
       foreseeable accident or collision impact even without the product
       defect. The manufacturer is liable for this enhanced injury or
       damage even though the defect did not cause the accident or
       collision itself.

       Lindemann proposed that the jury also be instructed on the eggshell

plaintiff rule. The trial court declined to give the instruction.

       The jury rendered its verdict on April 5, 2013, on a form with six

questions. The first question was "Did the defendant supply a product that was

not reasonably safe? . . . (DIRECTION: Ifyou answered 'no' to Question 1, sign

this verdict form. Ifyou answered 'yes' to Question 1, answer Question 2.)" The

second question was "Did the unsafe condition of the product proximately cause

plaintiff Allyn Lindemann to suffer enhanced injuries? The remaining questions

concerned the liability of the driver of the Jeep Liberty and damages.

       The jury answered "no" to the first question and returned the verdict.

       Lindemann appeals from the judgment on the verdict. She contends the

trial court committed two reversible errors: (1) denying Lindemann's motion to

exclude Dr. Raphael's testimony about the effect of her obesity and (2) refusing

to give the eggshell plaintiff instruction.
No. 70448-6-1/6


                                DR. RAPHAEL'S TESTIMONY

            Lindemann presented two expert witnesses who testified that Toyota

could have designed the car with more front-end strength to prevent the dash

from crumpling in upon her legs. Another expert witness, Dr. Joseph Burton,

testified that the force of the accident alone would not have been enough to

cause the most severe injuries. In his opinion, the injuries resulted from the loss

of occupant space when the front-end structure gave way. He testified that

"Lindemann didn't get the full benefit of going into the cushion of the airbag,

because it was moving to her right at the same time that she was moving forward

into it."

            Toyota presented Dr. Raphael to counter Dr. Burton's opinion. Dr.

Raphael testified that she is an emergency room physician and engineer with

expertise in the field of occupant kinematics. She is a clinical associate

professor at Stanford University Hospital and received her bachelor's degree in

mechanical engineering from MIT. She has treated thousands of patients and

has analyzed car accidents and biomechanics since the mid-1990s.

            Dr. Raphael testified that in frontal barrier crash tests for the kind of car

Lindemann was driving, studies have shown that about 50 percent of a person's

body weight goes into the shoulder belt and 50 percent into the lap belt. To be

conservative, she assumed that only 100 pounds of Lindemann's weight went

into the lower lap belt. Using Newton's second law, Dr. Raphael concluded that

the force of the collision was 2,500 pounds, calculated by multiplying 100 pounds

times 25 Gs (Lindemann's estimated acceleration). She testified that it would
No. 70448-6-1/7


take around 2,000 pounds of force to cause the pelvic fractures Lindemann

experienced. Dr. Raphael testified that Lindemann's knees would have struck

the forward structures of the car even without any deformation of those

structures.


       To reach this conclusion, Dr. Raphael consulted a published study in

which seat-belted obese cadavers were found to have more "forward excursion"

(forward movement) in high speed frontal barrier crash tests than nonobese

cadavers. In some cases, this meant that the seatbelt would have almost no

restraining properties on an obese person initially:

       [the seatbelt] doesn't really stop the forward motion until it's
       up against the hard bony parts of the body, in this case the
       pelvis, and so it has to move through all of that soft tissue in
       front of it until it restrains the pelvis.
                 And in order to do that, the cadaver of an obese
       occupant is going to move forward multiple inches, as much
       as eight inches forward, before the seatbelt has any real
       restraining properties on the pelvis.

By contrast, for a nonobese body, the pelvis stays almost completely in place.

Dr. Raphael observed that while in the study there was nothing in front of the

cadavers, in a typical vehicle, the instrument panels, knee bolsters, and dash

would impact the driver's lower body. For Lindemann, "the crash forces are so

severe and the amount of soft tissue that she has is sufficient that it allows her

that forward excursion into the structures in front of her."

       Lindemann contends Dr. Raphael's testimony should have been excluded

as irrelevant.

       Admissibility of expert testimony is reviewed for abuse of discretion.

Weyerhaeuser Co. v. Commercial Union Ins. Co., 142 Wn.2d 654, 683, 15 P.3d
No. 70448-6-1/8



115 (2000). Evidence is relevant and admissible if it tends to make the existence

of a material fact more or less probable. Medcalf v. Dep't of Licensing, 83 Wn.

App. 8, 16, 920 P.2d 228 (1996), affd, 133 Wn.2d 290, 944 P.2d 1014 (1997).

      Lindemann argues "the only possible defense under RCW 7.72.030(1 )(a)

is that it was too burdensome to design a car that would have protected Ms.

Lindemann. Dr. Raphael's testimony had no bearing on that question and

therefore had no probative value." This is incorrect. Lindemann was required to

prove that the defect enhanced her injuries. Testimony that she would have

experienced the same injuries without the defect was relevant.

       Lindemann next contends the prejudicial nature of Dr. Raphael's

testimony exceeded its probative value. Even if relevant, evidence must be

excluded if its probative value is outweighed by the danger of unfair prejudice.

Medcalf, 83 Wn. App. at 16-17. A danger of unfair prejudice exists when

evidence is likely to stimulate an emotional response rather than a rational

decision. Salas v. Hi-Tech Erectors, 168 Wn.2d 664, 671, 230 P.3d 583 (2010).

       The trial court recognized, and Toyota does not dispute, the existence of

societal prejudice against people who are obese. The court nevertheless

allowed the testimony as essential to Toyota's defense. This was not an abuse

of discretion. Dr. Raphael testified that the collision pushed Lindemann forward

and jammed her knees against the dash with greater force than would have been

the case with a driver of lesser mass. She also explained that a person with an

unusually large amount of soft tissue will travel farther forward before restraints
engage. Unlike in Salas, where reference to the plaintiff's immigration status was


                                          8
No. 70448-6-1/9


held unduly prejudicial in a workplace injury case, here the references to

Lindemann's excessive weight were necessary for the jury to understand

Toyota's defense.

         Next, Lindemann contends Dr. Raphael's testimony should have been

excluded as inadmissible under Frve v. United States, 293 F. 1013 (D.C. Cir.

1923).

         Under Frve, the primary goal is to determine whether evidence is based

on established scientific methodology. State v. Gore, 143 Wn.2d 288, 302, 21

P.3d 262 (2001), overruled on other grounds by State v. Hughes, 154 Wn.2d

118, 110 P.3d 192 (2005). Both the scientific theory underlying the evidence and

the technique or methodology used to implement it must be generally accepted in

the scientific community for evidence to be admissible under Frve. Gore, 143

Wn.2d at 302. If the evidence "does not involve new methods of proof or new

scientific principles," it is not subject to the Frve test. State v. Baity, 140 Wn.2d

1,10, 991 P.2d 1151 (2000). Even in the absence of scientific studies, an

expert's opinions may be based on his or her own training, practical experience,

and acquired knowledge. Reese v. Stroh, 128 Wn.2d 300, 307-08, 907 P.2d 282

(1995). Once a methodology is accepted in the scientific community, then

application of the science to a particular case is a matter of weight and

admissibility under ER 702, which allows qualified experts to testify ifscientific,

technical, or other specialized knowledge will assist the trier of fact.

         Lindemann argues that Dr. Raphael's testimony involved a novel and

unreliable application of science. She contends there is no accepted scientific
No. 70448-6-1/10


basis for the calculations Dr. Raphael used to determine that Lindemann's lower

body sustained 2,500 pounds of force in the collision. Specifically, Lindemann

critiques Dr. Raphael's assumption that 40 percent of Lindemann's weight would

go into her lower body and her failure to account for the way a lap belt and air

bags would reduce the impact on Lindemann's lower body.

      The scientific principle Dr. Raphael primarily relied on, Newton's second

law of motion, is not novel. Dr. Burton, a witness for Lindemann, testified that

Lindemann's weight was a necessary part of the equation to determine the force

her body experienced in the crash. He also agreed that her soft fatty tissue

meant she "won't be restrained as easily" and it would be "more difficult to slow

that mass down."


       In a case cited by Lindemann, the court found that in applying Newtonian

physics, the witness was making speculative assumptions and therefore his

results could not be considered reliable regardless of the methodologies used.

Mohnev v. USA Hockey, Inc., 300 F. Supp. 2d 556, 570 (2004), affd, 138 F.

Appx. 804 (6th Cir. 2005). cert, denied, 547 U.S. 1020 (2006). Here, unlike in

Mohnev, Dr. Raphael's assumptions were reasonably premised on academic

studies and her experience. Lindemann's critique fails to demonstrate that Dr.

Raphael's methods are not accepted in the relevant scientific community. At

most, they suggest that her conclusions may have been inaccurate or of limited

utility. These are concerns more appropriately addressed by cross-examination,

not by disqualification under Frve.




                                         10
No. 70448-6-1/11


       Dr. Burton and Dr. Raphael agreed that force = mass x acceleration was

the correct formula for determining the amount of force acting on Lindemann, that

25 Gs was a reasonable estimate of acceleration in the crash, and that

Lindemann's mass was a relevant variable. They disagreed about whether the

seatbelts and the airbags slowed Lindemann's forward movement. The record

reflects a professional disagreement about how Lindemann's body moved in the

collision. Dr. Raphael's testimony, like Dr. Burton's, used scientific principles, not

a fundamentally novel analysis of the type the Frve test is designed to weed out.

       In summary, we conclude the trial court did not err by allowing Dr.

Raphael's testimony as relevant, not unduly prejudicial, and not barred by Frve.

                        THE EGGSHELL PLAINTIFF RULE

       The eggshell plaintiff rule holds that a tortfeasor takes his victim as he

finds him. Buchalski v. Universal Marine Corp., 393 F. Supp. 246, 248 (W.D.

Wash. 1975). It is well established in Washington law. See, e.g., Reeder v.

Sears, Roebuck & Co., 41 Wn.2d 550, 556-57, 250 P.2d 518 (1952). It is fair to

regard Lindemann as an eggshell plaintiff because the evidence established that

obesity is a recognized negative risk factor in car accidents.

       Potential application of the eggshell plaintiff rule to Lindemann's claim

initially emerged as an issue in connection with her motion in limine concerning

Dr. Raphael. Lindemann argued that it would violate the eggshell principle to

allow Dr. Raphael to testify that obesity was a cause of the critical pelvic injury.

"If Dr. Raphael is right, it doesn't get Toyota off the hook, because they're still

responsible because we had a person who had extra weight, and that caused an


                                          11
No. 70448-6-1/12


additional injury." Toyota responded that the eggshell plaintiff rule could not

make Dr. Raphael's testimony irrelevant. "It has to be that you talk about the

crash forces involved, and then you evaluate whether or not the vehicle design

caused her injuries. But the accident forces are the acceleration times the mass.

That's an equation." Lindemann replied that there was no basis to exclude

enhanced injuries from the eggshell plaintiff rule and that the plaintiffs would

propose the standard instruction.

         In denying the motion to exclude Dr. Raphael's causation opinion, the trial

court reasoned that the eggshell plaintiff rule does not apply to enhanced injury

cases:


         I think that the eggshell plaintiff rule doesn't apply to enhanced
         injuries. It applies when you are talking about, you know, a
         standard tort, but not where you are talking about the injury being
         due not to what caused the accident but, rather, to the nature of the
         design of the vehicle.

         On appeal, Lindemann attacks the trial court's reasoning and argues that

it produced two legally erroneous results: first, Toyota was able to use

Lindemann's obesity as a defense, and second, the court refused to give an

eggshell plaintiff instruction.

         As discussed above, the trial court properly concluded that Dr. Raphael's

use of Lindemann's weight to determine the force the collision exerted on her

was relevant and admissible. Contrary to Lindemann's argument, Dr. Raphael's

testimony did not suggest that a passenger's obesity is a defense when a design

defect is found to exist, nor did it encourage the jury to think that Toyota had no

duty to design cars that would be reasonably safe for obese persons.


                                          12
No. 70448-6-1/13


       Cases cited by Lindemann do not use the eggshell plaintiff rule to justify

exclusion of relevant evidence of liability. The rule comes into play when the

plaintiff proves that the defendant is liable for wrongful conduct and that conduct

has caused at least some injury to the defendant. At that point, "the rule imposes

liability for the full extent of those injuries, not merely those that were foreseeable

to the defendant." Benn v. Thomas. 512 N.W.2d 537, 539-40 (Iowa 1994).

       A tortfeasor "may not escape or reduce damages by highlighting the

injured party's susceptibility to injury." Primm v. U.S. Fid. & Guar. Ins. Corp.. 324

Ark. 409, 414, 922 S.W.2d 319 (1996). Lindemann contends Toyota highlighted

Lindemann's obesity in order to escape or reduce damages. We disagree. Dr.

Raphael's testimony did not imply, nor did Toyota argue, that Lindemann's

predisposition to injury precluded Toyota's liability for a defective design. The

references to obesity were not accusatory. The trial court did not err in

determining that Lindemann's eggshell condition was not a basis for excluding

the challenged testimony by Dr. Raphael.

       Whether the trial court erred in failing to instruct the jury on the eggshell

plaintiff rule is a different question. Jury instructions are sufficient when they

allow counsel to argue their theory of the case, are not misleading, and when

read as a whole properly inform the trier of fact of the applicable law. Anfinson v.

FedEx Ground Package Svs., Inc.. 174 Wn.2d 851, 860, 281 P.3d 289 (2012).

Errors of law in a court's instructions to a jury are reviewed de novo. Barrett v.

Lucky Seven Saloon, Inc., 152 Wn.2d 259, 266, 96 P.3d 386 (2004). A court's




                                          13
No. 70448-6-1/14


omission of a proposed statement of the law will be reversible error when it

prejudices a party. Barrett, 152 Wn.2d at 267.

       Lindemann's proposed instruction was worded as follows:

              If your verdict is for the plaintiffs, and if you find that: (1)
       before this occurrence Allyn Lindemann had a bodily or mental
       condition that was not causing pain or disability; and (2) the
       condition made Allyn Lindemann more susceptible to injury than a
       person without that bodily or mental condition, then you should
       consider all the injuries and damages that were proximately caused
       by the occurrence, even though those injuries, due to the pre
       existing condition, may have been greater than those that would
       have been incurred under the same circumstances by a person
       without that condition.

See 6 Washington Practice: Washington Pattern Jury Instructions: Civil

30.18 at 324 (6th ed. 2012).

       Lindemann asserts that she objected to the trial court's refusal to give her

proposed instruction. Toyota does not dispute this. However, because the

colloquy does not appear in our record, it is unclear ifthe instruction was rejected

to be consistent with the court's earlier statement that "the eggshell plaintiff rule

doesn't apply to enhanced injuries" or for some other reason. Lindemann's

argument on appeal assumes the trial court categorically concluded that an

eggshell plaintiff instruction is never appropriate in an enhanced injury case.

       In responding, Toyota does not take the position that an eggshell plaintiff

instruction would never be appropriate in an enhanced injury case. Rather,

Toyota argues that the instruction was properly rejected because its wording was

legally incorrect and, alternatively, that denial of the instruction, iferror, was

harmless.




                                           14
No. 70448-6-1/15



      The defect Toyota alleges in the proposed instruction is the language

directing the jury to "consider all the injuries and damages that were proximately

caused by the occurrence." Toyota asserts that a jury would understand

"occurrence" to mean the accident and might award a plaintiff damages for all

damages sustained in the accident, not just the enhanced damages caused by

whatever design defect the jury had found. This argument is unpersuasive.

Other instructions made it manifestly clear that "occurrence" would have to mean

the enhanced injury. The wording of the instruction would not have impaired the

jury's understanding that Lindemann was not to be compensated for injuries that

she would have sustained if she had been in a safe car.

       There is no apparent reason why an eggshell plaintiff instruction should

not be given in an enhanced injury case. If the Lexus was defective and the

defect caused at least some of Lindemann's injuries by failing to protect her in

the crash, it would make sense to instruct the jury to consider all of her enhanced

injuries, even if they were greater than injuries that a person of normal weight

would have incurred in the same circumstances.

       Nevertheless, a trial court's failure to give an appropriate instruction on a

particular theory can be harmless error if the jury's verdict clearly indicates that

the evidence did not establish a necessary element of the theory. Boeke v. Int'l

Paint Co., 27 Wn. App. 611,615, 620 P.2d 103 (1980), review denied, 95 Wn.2d

1004 (1981). Here, an eggshell plaintiff instruction would not come into play

unless the jury found Toyota liable for furnishing an unsafe product. The verdict

form with its special interrogatories shows the jury did not find the Lexus to be


                                          15
No. 70448-6-1/16


unsafe. Consequently, the jury did not reach the next question: whether the

injuries Lindemann suffered in the crash were enhanced because the car she

was driving was unsafe. Lindemann's attempt to show prejudice from the

absence of the eggshell plaintiff instruction folds back into her general argument

that Dr. Raphael's testimony was irrelevant and unfair—an argument we have

rejected.

       We conclude the trial court's refusal to give the proposed instruction, if

error, was harmless.

       The judgment on the verdict is affirmed.



                                                  ^ckee,
WE CONCUR:




 JflCt/t^e—j C,(l«                                   <&4LcJit/




                                         16
