Gilmore v. Jefferson County Pub. Transp. Benefit Area

415 P.3d 212, 190 Wash. 2d 483
CourtWashington Supreme Court
DecidedApril 19, 2018
Docket94559-4
StatusPublished
Cited by48 cases

This text of 415 P.3d 212 (Gilmore v. Jefferson County Pub. Transp. Benefit Area) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gilmore v. Jefferson County Pub. Transp. Benefit Area, 415 P.3d 212, 190 Wash. 2d 483 (Wash. 2018).

Opinions

MADSEN, J.

*487¶ 1 In 2008, an employee of Jefferson County Public Transportation Benefit Area (Jefferson Transit) caused a vehicle collision with Michael Gilmore. Gilmore brought a *215personal injury suit against Jefferson Transit for injuries he allegedly sustained in that collision. At trial, the jury awarded Gilmore $1.2 million for past and future economic losses.

¶ 2 This case concerns three issues-whether the trial court abused its discretion (1) in excluding Dr. Allan Tencer's expert biomechanical testimony, (2) in barring evidence of Department of Labor and Industries (L&I) payments to Gilmore, and (3) in determining that Gilmore's counsel's closing argument did not require a new trial.

¶ 3 In an unpublished decision, the Court of Appeals reversed, holding that the trial court abused its discretion with respect to each issue. Gilmore v. Jefferson County Pub. Transp. Benefit Area, No. 48018-2-II, slip op., 2017 WL 1477830 (Wash. Ct. App. Apr. 25, 2017) (unpublished), https://www.courts.wa.gov/opini-ons/pdf/D24¨8018-2IIÜnpublishedÖpinion.pdf. We reverse the Court of Appeals.

FACTS

Background

¶ 4 Gilmore was stopped at a traffic light. Charles Cotterill, a Jefferson Transit employee, was driving a bus *488behind Gilmore. Cotterill failed to stop his bus in time and collided with Gilmore's vehicle. Gilmore was working for Brother's Plumbing and driving a van owned by his employer at the time of the collision. While the damage to both vehicles was minimal,1 Gilmore described the collision as "devastating." 5 Verbatim Report of Proceedings (VRP) at 773.

¶ 5 Immediately after the collision, Gilmore was taken to the emergency room. He complained of nausea and headache, as well as pain in his neck, hip, and lower back. A few days later, Gilmore returned to the emergency room, complaining of headaches and numbness in his hands. As a result, Gilmore received L&I payments for wage loss and time loss. He also received a $40,000 lump sum L&I payment for permanent partial disability. Additionally, Gilmore was already receiving disability compensation from the Department of Veterans Affairs (VA). Gilmore was given a 60 percent disability rating for, among other things, degenerative arthritis in his thoracicolumbar spine, left elbow, and both of his hips and knees.

¶ 6 In April 2008, Gilmore underwent an MRI (magnetic resonance imaging ), which revealed several disc bulges in his neck. In the following months, Jefferson Transit hired a private investigator to take video surveillance of Gilmore. The investigator documented Gilmore engaging in several physical activities. Gilmore's pain subsided until 2009 when he opened his own plumbing business and began working again. A subsequent MRI revealed that Gilmore's disc bulges worsened and required surgery. Gilmore did not get the recommended surgery at that time because he just started his own plumbing business and could not afford to take time away from work. Instead, Gilmore was prescribed *489opioids and placed on a "high risk medication management" program. He finally underwent neck surgery in 2015.

¶ 7 In 2010, Gilmore sued Jefferson Transit in the underlying action for his injuries. Jefferson Transit admitted liability for the collision but maintained that it did not cause Gilmore's injuries.

Pretrial

¶ 8 The trial court ruled on several motions in limine before trial. The court granted Jefferson Transit's motion to exclude "golden rule arguments," which are arguments encouraging jurors to put themselves in Gilmore's place when deciding the case. Additionally, after reconsideration, the trial court granted Gilmore's motion to exclude evidence of his L&I and VA payments.

¶ 9 The trial court also granted Gilmore's motion to exclude Dr. Tencer's testimony. Dr. Tencer is a mechanical engineer and former professor who has done "research in the field of biomechanics related to injury prevention." Clerk's Papers (CP) at 365. He holds a bachelor's degree, a master's degree, and a PhD in mechanical engineering. Dr. Tencer is a well-known expert in Washington, *216having contributed biomechanical testimony in many personal injury cases. Dr. Tencer does not offer any medical opinion, but rather is primarily concerned with the severity of the impact in a given collision. His intended testimony here relates to a "quantitative description of the forces experienced by the Plaintiff in the crash and a comparison of those forces to forces of common experience." Id. at 366. In order to calculate a collision's impact, Dr. Tencer relies on several factors, including the "weights of the vehicles based on information provided by the automobile industry, the speed of the striking vehicle based on its level of damage, and the coefficient of restitution[,] which describes the elasticity of the impact and braking forces, to compute the speed change and acceleration of the struck vehicle." Id.

¶ 10 Before granting Gilmore's motion to exclude Dr. Tencer's testimony, the trial court engaged in a lengthy discussion *490with counsel. Gilmore's counsel argued that "Dr. Tencer's opinion [is] based on rank speculation and conjecture." 1 VRP at 35. He argued that Dr. Tencer's testimony would be irrelevant since he would not be offering any information that the "jury can't figure out on their own." Id. at 37. Gilmore's counsel suggested that there was enough other evidence for the jury to determine the severity of the impact between the vehicles, including photographs of the collision and testimony from Gilmore, a passenger on the bus, and potentially the bus driver. Gilmore's counsel argued that Dr. Tencer's testimony is unreliable and would lend scientific authority that is overly prejudicial.

¶ 11 In response, Jefferson Transit's counsel argued that the admissibility of Dr. Tencer's testimony should be based on whether the court thinks it will be helpful to the jury. In granting Gilmore's motion, the trial court explained:

As far as what I can tell from what I read, and the way I understand it, um, he makes a number of assumptions, some of which are based on facts that are not going to be in evidence. And it does-and he does create, um-he does-he does-well, it's-to me, it's intended to create an inference, um, of-well, I don't know, it's create-it's intended to create an inference with some aura of authority that I don't think is reasonable or justified. And I think that-I think it will be confusing to the jury. I think that it will be misleading to the jury.
And, um, so I'm going to grant the motion to exclude Dr. Tencer, based on-based on what I-what I read.

Id. at 39.

Trial

¶ 12 At trial, Gilmore's sons, Alex and Matthew Gilmore, each testified to Gilmore's physical and mental condition after the collision. Alex Gilmore testified:

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Cite This Page — Counsel Stack

Bluebook (online)
415 P.3d 212, 190 Wash. 2d 483, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gilmore-v-jefferson-county-pub-transp-benefit-area-wash-2018.