Harding v. United States Figure Skating Ass'n

851 F. Supp. 1476, 1994 U.S. Dist. LEXIS 5789, 1994 WL 172268

• Court: District Court, D. Oregon
• Decided: May 3, 1994
• Docket: CV No. 94-238-PA
• Status: Published

Opinion

OPINION, INCLUDING FINDINGS OF FACT AND CONCLUSIONS OF LAW, FOLLOWING SUMMARY BENCH TRIAL, AND DIRECTING ENTRY OF JUDGMENT FOR PLAINTIFFS

IMBROGNO, United States Magistrate Judge.

On June 7, 1992, due to the negligence of Defendants, Peggy A. Chappie died in a mo­tor vehicle accident in Okanogan County, Washington. Additionally, Ms. Chappie’s ten year-old son, Christopher, the only passenger in the car driven by his mother, was injured severely. A wrongful death and survival ac­tion ensued in Okanogan County Superior Court, and was removed to federal court under diversity of citizenship jurisdiction, 28 U.S.C. § 1332. Plaintiffs, represented by at­torneys Robert L. Parlette and Malcolm McLellan and Guardian ad Litem Donald C. Bell, are domiciliarles of the State of Wash­ington. Attorneys Gregory Arpin and Mi­chael Love represent Defendants, residents of British Columbia, Canada.

On July 29, 1993, pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the undersigned United States magis­trate judge. (Ct.Rec. 14.) More recently, the parties stipulated to an abbreviated bench trial. Specifically, Defendants con­ceded liability and the parties waived then-­right to trial by jury. It was agreed the undersigned would determine damages based upon a review of deposition testimony sub­mitted by the parties, their experts and wit­nesses, as well as expert reports, briefing, and argument of counsel. The parties pre­sented the evidence to the court during two days of formal proceedings.

The parties further agreed the under­signed would enter a final, non-appealable judgment for an amount of damages. The judgment is to be satisfied upon payment by Defendants of an agreed sum of money, a sum which has not been revealed to the undersigned. (Ct.Rec. 109, Stipulation for Abbreviated Trial Procedure.) These stipu­lations were reached after notice to and with­out opposition from, the court-appointed guardian ad litem.

The court is satisfied the procedure is con­sistent with the undersigned’s constitutional and statutory authority and is consistent with a magistrate judge’s judicial capacity, as ana­lyzed in DDI Seamless Cylinder Int’l., Inc. v. General Fire Extinguisher Corp., 14 F.3d 1163, 1166 (7th Cir.1994). As a result, the anticipated two weeks of trial distilled to two days.¹

APPLICABLE LAW

Three legal claims are before the court: (1) A claim for damages by the estate of Peggy Chappie under the survival statutes of the State of Washington; (2) wrongful death claims under the applicable state law by Ms. Chappie’s statutory beneficiaries: spouse Mi­chael Chappie; her minor son, Christopher Chappie, as well as adult children Russell Chappie, Greg Chappie, and April Chappie; and (3) a personal injury claim for damages in tort by Christopher Chappie.

SURVIVAL CLAIM

The parties agree that under Wash­ington law, the special survival statute allows the personal representative of a deceased person’s estate to recover damages for the estate, if the injury resulted in death. RCW 4.20.060;² Benoy v. Simons, 66 Wash.App. 56, 61, 831 P.2d 167, rev. denied, 120 Wash.2d 1014, 844 P.2d 435 (1992). The purpose of damages under the survival statute is to reimburse the decedent’s estate for the mon­etary losses it sustained as a result of the untimely death. Wooldridge v. Woolett, 28 Wash.App. 869, 871, 626 P.2d 1007, affirmed, 96 Wash.2d 659, 638 P.2d 566 (1981).

The first type of damage is the loss of net earnings that would have been accumu­lated by the estate. This amount is calculat­ed by establishing the deceased’s future net earnings, less all probable deductions for personal and family expenses and any other adjustments required, and reducing that fig­ure to its present value. Wagner v. Flight­craft, Inc., 31 Wash.App. 558, 568, 643 P.2d 906, rev. denied, 97 Wash.2d 1037 (1982).

Here, the evidence discloses Ms. Chappie had worked in restaurants as a food server for most of her adult life. At times, she was the sole support of her family. On the date of her death, she was employed as a food server at the Edelweiss Restaurant in Oroville, Washington. She was earning $4.90 an hour, averaging 38 to 40 hours per week as a permanent employee. Plaintiffs contend Ms. Chappie’s hourly wage should be in­creased to reflect alleged tips of approxi­mately $200 per week and the promise of a promotion to assistant manager at a salary of $1,500 per month. Thus, Plaintiffs calculate the estate’s loss of economic benefits as $227,200.

Defendants contend the amount of tips was not reflected in Ms. Chappie’s income tax return and, therefore, is speculative. They further argue the position of assistant man­ager never became a reality. Historically, Ms. Chappie’s annual income averaged near $10,000. (Donald A. Reddington, CPA, Dep. at 38.) Furthermore, Defendants note the Edelweiss Restaurant has closed since the accident.

The court concludes the estate’s loss of economic benefits should be based on Ms. Chappie’s proposed salary of $1,500 per month. Because of the management respon­sibilities and the lack of evidence that tip income would be available in that position, the court does not include an amount for tips. Accordingly, the assumptions made by Plain­tiff’s economic expert are modified to reflect an annual income of $18,000, rather than $18,400. The court also is convinced, based on the evidence of Ms. Chappie’s personal traits and work habits, that she would have remained employed to the age of 65, rather than choosing to retire at 62. Also accepted is the assumption that despite the closure of the Edelweiss Restaurant, given Ms. Chap-­pie’s capabilities and work history, she would have been able to secure a new position with comparable earnings and no significant time loss. Therefore, the total loss of earnings sustained is $291,600.

Having determined that amount, the court must deduct the personal and family ex­penses that would have been paid by Ms. Chappie from her estate. Relying on the testimony of Defendants’ economist, the court finds 32% of Ms. Chappie’s income would have been expended and, therefore, should be deducted from the gross earnings. Finally, the court is required to reduce the remainder to its present value; however, based again on the Plaintiffs expert, the total offset method will be used. Having made the necessary calculations, the award for loss of net earnings to the estate is $198,288.³

In addition to loss of net earnings, a survival action also authorizes an award to the estate for those damages recoverable in a garden variety tort action:

(1) Medical and hospital expenses. See Orcutt v. Spokane County, 58 Wash.2d 846, 857-58, 364 P.2d 1002 (1961). None have been claimed on behalf of the estate.

(2) Funeral expenses. See Warner v. McCaughan, 77 Wn.2d 178, 184, 460 P.2d 272 (1969). There is no dispute the funeral and related travel expenses total $6,000.

(3) Property damage. See Covey v. West­ern Tank Lines, 36 Wn.2d 381, 218 P.2d 322 (1950). There is no dispute the property damage consists of the total destruction of the Chappie vehicle, valued at $3,880.

(4) Pain and suffering. If any measurable time ensued between the injury and death, damages for pain and suffering may be awarded. Bingaman v. Grays Har­bor Community Hospital, 103 Wash.2d 831, 837, 699 P.2d 1230 (1985); see also Walton v. Absher Construction, 101 Wash.2d 238, 243, 676 P.2d 1002 (1984). Here, the coroner testified unconsciousness was “instantane­ous” and death was “almost instantaneous.” (Pl.Ex. 5.) The coroner further noted the “injuries indicate a massive force from the front and left struck the skull, face and upper torso with hyperflection of the thorasic cavity causing all of the rib fractures and disarticu-­lations, as well as the complete traumatic rupture of the aorta.” Because loss of con­sciousness was instantaneous, the court con­cludes there is no basis on which to award damages for pain and suffering.

(5) Fear. Plaintiffs contend they are entitled to damages for any fear experi­enced by Ms. Chapple prior to her death. RCW 4.20.060; see also Bingaman, 103 Wash.2d at 837, 699 P.2d 1230, citing John­son v. Marshall Field & Co., 78 Wash.2d 609, 617-18, 478 P.2d 735 (1970). Defendants re­spond that any evidence of such fear would be based upon conjecture and speculation since Ms. Chappie’s death was almost instan­taneous and Christopher Chappie has no memory of the accident, citing Olympia Oys­ter Co. v. Rayonier, Inc., 229 F.Supp. 855, 861 (W.D.Wash.1964). However, the court is mindful that during his hospital stay, Chris­topher Chappie, on one occasion when he was not fully cognizant, screamed “Watch out, Mom! Watch out, Mom!” Thus, there is credible evidence that both mother and son were aware of and did appreciate the im­pending impact at least several seconds be­fore it happened, even though there is no evidence Ms. Chappie had sufficient time to physically react with the vehicle. The court concludes sufficient evidence of fear has been submitted and damages of $25,000 are appro­priate.

WRONGFUL DEATH CLAIMS

Michael Chappie, Rusty Chappie, Greg Chappie, April Chappie and Christo­pher Chappie seek damages under the state wrongful death statute. Under RCW 4.20.-0­10,⁴ the personal representative of the dece­dent’s estate may maintain an action for damages against the tortfeasors to recover the value of the pecuniary interest lost as a result of the wrongful death. Under RCW 4.20.020, the surviving spouse and children are the beneficiaries of the wrongful death action. Pecuniary loss includes not only the monetary contributions the decedent would have made to the beneficiaries, but also in­tangible losses. Bowers v. Fibreboard Corp., 66 Wash.App. 454, 460, 832 P.2d 523, rev. denied, 120 Wash.2d 1017, 844 P.2d 436 (1992). No damages may be awarded for grief or bereavement, but an award is autho­rized for the loss of love, affection, care, service, companionship, society, training, and consortium the decedent would have provid­ed to the beneficiaries. Id.

1. Damages Proved By Adult Children.

A. Russell Chappie. Ms. Chappie’s adult son by a previous marriage, Russell (Rusty) Chappie, is married, the father of two minor children, and an employee of Shopko, Inc. in Lewiston, Idaho. He spent his childhood at the home of Peggy and Michael Chappie and has only a distant rela­tionship with his natural father. Even as an adult, he maintained a very close relationship with his mother, seeing her one to three times per month, on holidays and talking by telephone on a weekly basis. His mother was close to her grandchildren. Ms. Chappie assisted financially during the early years of Rusty’s marriage and continued to provide gifts to the family. Rusty Chappie stated his mother was more directly involved in his parenting than Michael Chappie. His rela­tionship with his stepfather has been frag­mented further by Michael Chappie’s remar­riage.

B. Greg Chappie. Greg Chappie cur­rently resides in Lewiston, Idaho. He is single and has no children. He also was an average student, active in athletics and has a work history in retail sales. While attending Western Business College, he became in­volved in a drug distribution network. He pled guilty in federal court to possession of cocaine; he was sentenced to 45 days in jail, three years probation and $2,500 in fines. His mother did not know of the charge prior to her death. Greg Chappie remained in contact with his parents after moving from the family home. He returned home approx­imately twice a year to visit his family. Af­ter the accident, Greg Chappie stayed in Spokane while his younger brother was in the hospital and returned to Oroville with him until the arrest and sentencing.

C. April Chappie. April Chappie is cur­rently a resident of New York City. She is completing a two-year college program and hopes to obtain a four-year degree in fine arts and forensic photography. She main­tains a cumulative GPA of 3.62 and is in honors classes. She also works for an archi­tectural firm and makes approximately $1,700 per month. After she moved to New York, April continued to talk with her moth­er by phone once or twice a week. Prior to 1991, she also visited the family home once or twice a year for two to three weeks. After the accident, April returned to Oroville and became the primary caretaker of Christopher for three months after his accident. Christo­pher also has made two visits to her home in New York since his recuperation. April and Christopher have maintained a very close relationship since the death of their mother.

D. Award. The court is impressed with the devotion Peggy Chappie exhibited towards her family in providing the love, care, protection, guidance and moral training for each of these children. She actively was involved in their school work and athletic activities. That devotion further is evidenced by the closeness of the relationship between mother and child after each child.reached the age of majority and left the family home. Although it is difficult to measure such devo­tion in terms of dollars, the court concludes that the pecuniary loss suffered by these children is $60,000 each.

2. Damages Proved By Minor Child.

At the time of his mother’s death, Christo­pher Chappie was ten years old and had completed the fourth grade at the Oroville elementary school. His report card reflects he was an average and outgoing student, receiving a grade average of C + or B - (2.58 on a scale of 4.0) for the year. No significant behavioral problems were noted, although his social and personal habits were graded at average or average-low. (Pl.Ex. 23.) His parents, especially his mother, were hopeful that Christopher would attend and complete a four-year college program. That opinion was shared by his fourth grade teacher, who viewed herself as a strict grader and stern disciplinarian.

It is undisputed Christopher and his mother shared an extremely close relation­ship. Her death was devastating to him to the extent he is unable to express his feelings about his loss. It is evident Peggy Chappie was the more active parent, taking an inter­est in every aspect of her youngest son’s life. They spent most evenings together, doing school work, attending athletic events, taking short drives or collecting baseball cards. Al­though Christopher has adjusted to his fa­ther’s remarriage, the adjustment period has been stressful, especially learning to live with an older stepbrother. ’Based on the close relationship between mother and son, and given the fact of his minority, the court con­cludes -the sum of $160,000 is reasonable to compensate Christopher for the loss of his mother.⁵

3. Damages Proved By Spouse.

At the time of his wife’s death, Mike Chap-­pie was 49 years old and a high-school gradu­ate. He had been married for 24 years and was the father of Greg, April, and Christo­pher Chappie and stepfather to Rusty. He was a part-time musician and part-time pre-­size lead worker at the Gold Digger Apple packing plant, earning $10.40 an hour.

In 1979, the couple separated for a few months because of disagreements about rais­ing the children and Mr. Chappie’s feeling of being “left out” of the family. After receiv­ing marriage counseling through their church, they reunited. Shortly thereafter, Christopher was born. At the time of Peggy Chappie’s death, the marriage was strong.

Mike Chappie testified that on the evening before the accident, he had been camping with Christopher and a buddy, returning the day of the accident. After dinner, he stayed home in his pajamas while Peggy and Chris­topher went for a drive, as was their nightly custom. When he heard the sirens of the emergency vehicles, he drove to the scene but was unable to see anything because of traffic. He went home to wait for Peggy and Christopher, then received a phone call that his wife had been killed and his son injured. He went immediately to Spokane with a friend to be with Christopher at the hospital. He returned to Oroville for Ms. Chappie’s funeral and then returned to the hospital.

Mike Chappie has noticed significant changes in Christopher’s behavior and his academic progress since the accident. The evidence indicates his parenting skills were inadequate to meet Christopher’s needs. Christopher was dependent upon April dur­ing the first months after the accident for the necessary nursing care. The loss of Peggy Chappie’s support and services has been a source of frustration to the entire family; Mike Chappie feels the family was destroyed by the accident. The court concludes Mike Chappie should be awarded $75,000 for the loss of consortium, support and services of Peggy Chappie.

TORT CLAIM

Christopher Chappie, through his guardian Michael Chappie, has sued Defen­dants in tort, seeking both economic and non-­economic damages for the losses he suffered as a result of the injuries sustained in the accident. To recover damages, a plaintiff must present sufficient evidence regarding the nature and amount of the damage. Re­covery for future medical expenses may be awarded if those expenses are reasonably certain to be incurred and necessitated by the injuries. Erdman v. B.P.O.E., 41 Wash.­App. 197, 208, 704 P.2d 150, rev. denied, 104 Wash.2d 1030 (1985). These expenses need not be proven to a mathematic certainty. Id.

A parent may maintain an action as plain­tiff for the injury of a minor child. RCW 4.24.010. In such an action, a parent may recover for the medical, hospital, and medi­cation expenses incurred, as well as the loss of services and support, love and companion­ship of the child and the injury to or destruc­tion of the parent-child relationship. Id.

1. Past Medical Expenses.

Christopher was found unconscious and wedged under the dashboard of the car. The investigating officers concluded he had been wearing a seat belt at the time of the acci­dent. The fire department immobilized his spine and took Christopher by ambulance to North Valley Hospital in Tonasket, Washing­ton. James M. Helleson, M.D., treated Christopher in the emergency room and, fol­lowing x-rays of his spine and chest, diag­nosed a possible brain injury. Christopher was flown to Deaconess Medical Center in Spokane for treatment, where he remained hospitalized from June 7 to June 19, 1992.

At the time of his arrival, Christopher had an ecchymosis⁶ of the left eye, and multiple abrasions and contusions on his lower legs and across his chest. He was responsive only to painful stimuli. Once stabilized, Christopher was admitted into Deaconess Pediatries Intensive Care Unit, where he was unconscious for nearly 24 hours.

Neurosurgeon John J. Demakas, M.D., the primary treating physician, diagnosed “mod­erate” to “severe” head injury, with bifrontal contusions, characterized as a “permanent impairment” in a report to the Department of Labor and Industries crime victims com­pensation program. (Demakas Dep. at 10, 23.) Dr. Demakas opined, on a more proba­ble than not basis, Christopher would have some degree of permanent cognitive deficits, memory problems, problems with eye-hand coordination and thinking clearly.

Dr. Demakas referred Christopher to Vivi­an Moise, M.D., for further evaluation. Dr. Moise, who treated Christopher while he was hospitalized, reported he had a conjugate⁷ gaze, slurred speech, short attention follow­ing a few short commands, and limited re­sponse to motor commands. He did not open his mouth and was restless and agitated. (Moise Dep. at 32 and Ex. 3.) She opined Christopher had a “moderate” closed head injury with bifrontal hemorrhagic contusions, with primary deficits appearing in the area of attention with significant impulsivity. She further noted his condition was improving rapidly. On Dr. Moise’s recommendation, Christopher was not allowed to attend his mother’s funeral. (Moise Dep. at 41.) His hospitalization continued because of lack of treatment facilities at his home. (Moise Dep. at 14.)

Following discharge, Dr. Moise recom­mended that Christopher be supervised 24 hours a day; have minimal external environ­mental stimuli; not ride a bike for a month, and when he did ride, to wear a helmet; not compete in sports until the fall; not use power equipment; and perform only light chores. Dr. Moise ordered outpatient speech and occupational therapy two to three times per week. He was not scheduled to see Dr. Moise again except on an “as needed” basis if rehabilitation questions should arise. His re­cuperation would be followed by his local family physician, Dr. Lyle Cowan of Omak.

Dr. Demakas examined Christopher one month after his discharge. He was doing well, having some slight headaches and some problems with balance. Dr. Demakas did not test him for cognitive or emotional defi­cits, only his physical well-being. (Demakas Dep. at 14.) However, at his deposition, Dr. Demakas stated he would defer to the inter­pretation of neuropsychological tests that Christopher did not have cognitive deficits. (Demakas Dep. at 26.)

Dr. Moise referred Christopher to psychol­ogist Paul J. Domitor, Ph.D., for the purpose of making recommendations as to school ad­aptation. Dr. Domitor first saw Christopher, accompanied by his father, on August 3, 1992. He spent an hour conversing about child care issues. Dr. Domitor noted Chris­topher was “kind of sad.” When discussing his mother, his affect was flat. Testing was postponed because no changes in Christo­pher’s level of functioning were noticed. (Domitor Dep. at 32.) Tests were adminis­tered in May and June 1993.

On September 9, Dr. Demakas again ex­amined Christopher. No behavioral prob­lems were apparent at that point; Dr. Domi­tor had released him from further psycholog­ical follow-up. Dr. Demakas informed Chris­topher to take it easy playing sports and to wear his bicycle helmet. Christopher did not need to return on a regular basis. Dr. De-­makas opined Christopher was doing very well. (Demakas Dep. at 15.) Dr. Demakas did not feel that further radiological tests were necessary. (Demakas Dep. at 16.) When questioned whether the appearance of behavioral problems during the second school year following the accident could be attrib­uted to the head injury, Dr. Demakas opined it would be based not only on the physical injury but also the psychology of the injury and the loss of his mother. (Demakas Dep. at 19.)

Dr. Domitor stated his preference is to use the Halstead-Reitan battery of tests⁸ in dis­criminating between normal and brain in­jured children. (Domitor Dep. at 50.) After testing, Dr. Domitor was concerned about Christopher’s freedom from distractibility, low processing speed, low Mazes score, men­tal arithmetic coding and digit span scores, and picture arrangement. (Domitor Dep. at 69-70.) Dr. Domitor especially was con­cerned about the results on the Mazes test which measures the child’s ability to plan and organize, a function of the frontal lobe. In contrast, on tests known to be resistant to brain injury, Christopher scored approxi­mately' one standard deviation above the mean in terms of intellectual function. (Domitor Dep. at 74, 96.) On the Wide Range Achievement Test—Revised (WRAT), Christopher scored at his appropriate grade level. (Domitor Dep. at 84.) Christopher scored at the kindergarten level in a memory test of names, yet scored at the eighth grade level in a memory test involving context. (Domitor Dep; at 131.) Dr. Domitor opined the difference in scores (disassociation) would be indicative of frontal lobe injury because of the function of sequencing information. Ad­ditionally, some answers were repetitively so­cially inappropriate, an indication Christo­pher has trouble monitoring his behavior, also a function of the frontal lobe. (Domitor Dep. at 138.) Dr. Domitor noted Christo­pher worked diligently on all the tests. (Domitor Dep. at 119.)

In summary, Dr. Domitor made the follow­ing findings: (1) Christopher sustained a traumatic brain injury in June 1992; he now has mild cognitive problems; he has moder­ate behavioral problems involving social ap­propriateness and the ability to inhibit emo­tions; he has trouble controlling his behavior and understanding social demands; and he is experiencing some depression from the loss of his mother. Dr. Domitor opined these problems would increase as Christopher grew older (Domitor Dep. at 141,144), based on scientific literature that suggests if a child’s brain is injured before full develop­ment of the functions performed by that portion of the brain, further neuropsychologi­cal development may be compromised. An area particularly sensitive is frontal lobe in­jury. (Domitor Dep. at 151.)

Dr. Domitor recommended continued psy­chological help, including contacts with the school counselor and mental health worker. Additionally, he suggested an individual edu­cation plan should be developed for Christo­pher by the school district and additional training considered, including perhaps resi­dential training for adolescents with brain injuries.⁹ (Domitor Dep. at 158.) The extra training should continue at least through high school, depending on Christopher’s aca­demic success. Finally, Dr. Domitor stated he would not make a prognosis as to Christo­pher’s future as it would depend on develop­ments over the next four to five years. (Domitor Dep. at 161.) Dr. Domitor had no further plans to treat or test Christopher.

Todd J. Mayther, counselor for the Oro-­ville School District, grades kindergarten through seven, first knew Christopher during the fourth grade when he taught refusal skills. (Mayther Dep. at 14.) He first met Mike Chappie during the fall of 1992 when the school had some concerns about Christo­pher’s progress in the fifth grade. Those problems encompassed inappropriate behav­ior stemming from what Mr. Mayther de­scribed as an inability to relate cause and effect. (Mayther Dep. at 16.) Additionally, Christopher was having unusual problems with math. Mr. Mayther met with Christo­pher in counseling sessions on a weekly ba­sis. At first, Christopher was dealing with grief issues, anger and depression about death. He noted he had spent over 100 hours with Christopher during the fifth and sixth grades, 1992 through 1993. (Mayther Dep. at 21.)

Mr. Mayther noted Christopher does not seem to have close friends due in large part to his behavior. Mr. Mayther has had good cooperation from Mike Chappie. Character­izing Christopher as a hard-working student and not a “quitter” (Mayther Dep. at 28), Mr. Mayther opined the cause of Christopher’s problems was more than simple depression. (Mayther Dep. at 29.) The counsellor also noted Christopher’s fourth grade tests would indicate he was college material. (Mayther Dep. at 53.) In comparison, his test scores in sixth grade were in the fourth percentile, similar to children who are mildly mentally retarded. (Mayther Dep. at 54.) Mr. Mayther concluded the problems would get worse as Christopher’s responsibilities be­came more stressful. (Mayther Dep. at 63.)

Robert F. Nevins of Omak, Washington, a county mental health professional and chil­dren’s specialist, treated Christopher through the Friendship Program, a joint ven­ture between the school district and the men­tal health clinic. Additionally, Jenne Williams, a mental health technician, provid­ed case management services involving Christopher. He was referred to the pro­gram on October 21, 1993, after some inap­propriate behavior observed by the school. (Nevins Dep. at 14, 23.) The behavior in­cluded ingesting five aspirin, as well as at­tempting to put a piece of foil in an electrical socket.

The goals set for Christopher included dealing with grief issues, inappropriate be­havior, personal safety including suicidal ges­tures, and parenVchild relationship. (Nevins Dep. at 29.) In February 1994, Christopher was doing reasonably well meeting his goals. Mr. Nevins concluded the aspirin incident was merely an attempt to impress a girl, rather than a serious suicide attempt. (Nev-­ins Dep. at 30.) Mr. Nevins opined some of the behavior problems could be a result of his father’s remarriage. (Nevins Dep. at 36.)

The expenses associated with Chris­topher’s care during the months following the accident and prior to this hearing are, for the most part, undisputed by Defendants. Thus, Plaintiff shall be awarded the sum of $29,013 for past medical expenses incurred.¹⁰

Plaintiff also seeks reimbursement for charges made by Dr. Catherine Mateer who, at the request of counsel, performed certain tests to determine if Christopher has a permanent cognitive deficit. Defendants object to the inclusion of this item as a past medical expense because Dr. Mateer was not a treating physician, but was hired at the request of Plaintiffs counsel to render an expert opinion for litigation purposes. The court agrees; Plaintiff may not be awarded the éxpenses incurred as a result of Dr. Mateer’s testing, as a past medical expense.

2. Future Medical Expenses.

Under Washington law, one may recover for future medical expenses reason­ably certain to be incurred. Prior to an allowance for the cost of future medical care, evidence must indicate the care will be neces­sitated by the plaintiffs injury. Erdman, 41 Wash.App. at 197, 704 P.2d 150.

Based on Dr. Domitor’s assessment, Christopher is experiencing the behavior and cognitive problems associated with frontal lobe injury in children. He has displayed socially inappropriate behavior at school and an inability to control his impulses. The court concludes Plaintiff sufficiently has es­tablished that additional training, including residential treatment, is warranted as a nec­essary future medical expense. Plaintiff seeks $50,000 for remediation services at Mountlake Terrace, an additional $14,000 for counseling services by Mr. Nevins, and costs associated with rehabilitation of organization­al skills of $60,000. In a letter addressed to defense counsel, Dr. Joseph Moisan, a voca­tional rehabilitation expert, recommended the Brown Schools in Texas for residential, head injury treatment. The cost associated with a residential program would range from $100,000 to $160,000, depending on the length of treatment. The evidence supports an award of $124,000¹¹ as reasonably neces­sary for future medical expenses, whether those services be provided locally or in Tex­as.

3. Loss of Parent-Child Consortium,.

RCW 4.24.010 authorizes an award of damages for the loss of parent-child consortium resulting from the injury or death of a minor child. To maintain such an action, there must be evidence of an injury to the child with resulting damages. Benoy, 66 Wash.App. at 64, 831 P.2d 167. In such an action, damages may be recovered for the loss of two types of non-pecuniary injury: (1) love and companionship of the child and (2) for injury to or destruction of the parent-­child relationship. These items of damage are separate and distinct; recovery may be had for each. Colleen v. United States, 843 F.2d 329 (9th Cir.1987); Hinzman v. Pal­manteer, 81 Wash.2d 327, 501 P.2d 1228 (1972). In Colleen, the court awarded par­ents $300,000 in nonpecuniary damages for the injury to their daughter who was brain damaged at birth. In Shaw v. United States, 741 F.2d 1202, 1210 (9th Cir.1984), the court reduced from $2,000,000 to $50,000 an award made to parents of a severely handicapped child.

Here, the evidence is that Christo­pher suffered a moderate brain injury that has affected, temporarily, his executive funct­ion.¹² Although there is evidence he may require special education during his minority to enable him to compensate for these im­pairments, there is insufficient evidence he will be totally or permanently disabled and unable to live independently and successfully support himself after reaching the age of majority. See also discussion, infra, at 25, et seq. Based on this evidence, the court awards Michael Chappie $15,000 for each item, a total of $30,000.

4. Lost Earning Capacity and Employment Opportunities.

Recovery for lost wages or earning capacity compensates an injured party for loss of economic value associated with one’s vocation; recovery for disability compensates for the inability to lead a normal life; and recovery for loss of enjoyment of life com­pensates for the loss of a specific, unusual activity outside of one’s vocation, such as athletics or artistic pursuits. Kirk v. Wash­ington State University, 109 Wash.2d 448, 461, 746 P.2d 285 (1987).

Plaintiff argues Christopher should be awarded in excess of $2,000,000 for his lost earning capacity and employment opportuni­ties. He contends that prior to the accident, Christopher was a reasonable candidate to obtain a four-year college degree. As a re­sult of the accident, Plaintiff argues Christo­pher will, more probably than not, be limited to entry level positions at a minimum wage. The court notes the extent of this loss de­pends upon the extent of permanent disabili­ty suffered by Christopher. Not surprising­ly, the experts disagree.

Dr. Domitor opines that frontal lobe injury may result in significant impairment of cer­tain cognitive functions and behavior. He notes these conditions are not always imme­diately apparent but may become more symptomatic as the child’s environment be­comes more demanding and stressful. Thus, he was not surprised by the development of problems, both academic and behavioral, ob­served by school officials in the second year following Christopher’s accident. He was unwilling to make a prognosis as to Christo­pher’s future.

At the request of Plaintiffs counsel, Chris­topher was examined and tested by Dr. Catherine Mateer, neuropsychologist, Di­rector of Neuropsychology Services at the Good Samaritan Hospital, and research asso­ciate professor at the University of Washing­ton. Dr. Mateer’s conclusions are summa­rized in her report at 9 and 10:

Christopher is an 11 year-old male who suffered a moderate to severe traumatic brain injury secondary to a motor vehicle accident on June 7,1992. Secondary to his injury changes have been noted in Christo­pher’s physical, cognitive and emotional functioning. Christopher now frequently suffers from headaches and has difficulty attending and concentrating. He is also noted to be more easily frustrated and has suffered a decline in grades since the acci­dent.

Neuropsychological evaluation revealed a youngster with average range intellectual skills and solid abilities in the areas of language and visuospatial functioning. Ar­eas of weakness or cognitive deficit were seen on measures assessing attention and concentration, and measures of new learn­ing and memory. Though Christopher did score within the normal range on some of these tasks, he appears to have more diffi­culty with tasks requiring vigilance or a higher level of mental control. Additional­ly, there is considerable variability within his new learning and his ability to retain information over time.

Deficits in attention/eoncentration and new learning/memory abilities are common se-­quelae secondary to traumatic brain injury. Such deficits are particularly troublesome for children within an academic setting. In addition to the injury suffered, Christo­pher also suffered the loss of his mother, and what was described as a close relation­ship between he [sic] and his mother. The impact of this loss on Christopher’s overall well being may be in part responsible for changes in his attitude and mood. Though Christopher did exhibit some symptoms of depression, several measures of cognitive function which would be sensitive to the effects of depression were within the nor­mal range. As such, deficits noted are felt to be directly related to the head injury he sustained in the motor vehicle accident.

Dr. Mateer testified that no single test “con­firms or disconfirms brain impairment.” Ba­sically, a professional must look at the “pat­terns and profiles and compare them to pre-­injury levels of functioning.” (Mateer Dep. at 11.) Dr. Mateer testified that clear func­tional impairments cannot be demonstrated with all brain injuries. She noted there have been eases when brain injured persons, in­cluding persons with “penetrating brain inju-­ríes,” have recovered and led normal produc­tive lives. (Mateer Dep. at 12.)

Dr. Mateer noted that in taking a history from Christopher’s father regarding Christo­pher’s behavior prior to the accident, Mr. Chappie related that Christopher had “a few behavior problems before” (throwing spit­balls and talking in class), but that he had not required detention. Dr. Mateer also re­lated that Mr. Chappie did not indicate Christopher had been graded below average with respect to behavior and deportment, was seen as spoiled and demanding, and somewhat hyperactive, and had she known of such factors,¹³ their significance would have “depended]” on “what was being observed and whether or not it was—if there was difference in behavior before and after.” (Mateer Dep. at 34.) Given Christopher’s age, gender and his placement in the family as the youngest child, it was not surprising to her that these characteristics were noted and she did not consider them to be outside the realm of normal. (Mateer Dep. at 37.) Dr. Mateer considered Christopher’s injury to be in the moderate to severe range, loss of consciousness up to or exceeding 24 hours. (Mateer Dep. at 42.)

Dr. Mateer observed that on Christopher’s school MAT tests, the second grade total composite battery was approximately within the 71st percentile, and in the third grade, the 76th percentile. In the fourth grade, a Comprehensive Tests of Basic Skills (CTBS) test was administered rather than the MAT test, and the composite battery percentage was 71. After the injury in the fifth grade, Christopher’s overall percentile dropped to 45%, still “within the norm.” (Mateer Dep. at 87-88.) In the sixth grade, however, his test results dropped dramatically. In fact, it was “beyond” what Dr. Mateer said she would have expected. Accordingly, she did not have an explanation for the decline in the sixth grade achievement test. She concluded the decline “may have been related to atten­tional memory, motivational or emotional fac­tors. I just don’t know.” (Mateer Dep. at 91.)

On July 9, 1993, about one year post acci­dent, Dr. Mateer’s staff tested Christopher. The testing took several hours, and during the testing, “[h]e appeared to interact appro­priately, appeared to put forth good effort, seemed to work diligently on task presented. He was quite quiet. Not very much sponta­neous speech, although he did answer ques­tions and did respond appropriately.” (Ma-­teer Dep. at 44.) That is, he presented normally and seemed to understand the in­structions given. (Mateer Dep. at 44.)

The test results were consistent with those of other children who had suffered frontal lobe injury. Although Dr. Mateer testified no individual test can indicate a child is brain impaired, a review of all the tests adminis­tered can indicate the potential effects of a brain injury. (Mateer Dep. at 51.) The evaluator

[Ljooks at the constellations and profiles of strengths and weaknesses. And the pur­pose of neurophysiological assessment is to compare domains of cognitive ability in reference to a standard such as a general intellectual capacity and look at how differ­ent domains of cognitive function are relat­ed to that. What I can tell you is that a child of average intelligence would never perform this poorly on measures sensitive to attention and memory.

(Mateer Dep. at 52.)

Dr. Mateer opined Christopher scored within normal range on measured intelli­gence, the K-BIT (Kaufman Brief Intelli­gence Test), and he scored within normal range on the trail making test; the sentence imitation, word sequence and oral direction subtests of the Detroit Test; the Taylor Complex Figure; the Individual Achievement Test; the Wechsler Reading Comprehension and Listening Comprehension; and the Hoo­per Visual Organization test. She noted these tests reflected the basic integrity of his language system, his visual perception sys­tem, and revealed maintenance of average range IQ and academic achievement. (Ma-­teer Dep. at 53.) With respect to the Atten­tion Capacity Test, she concluded Christo­pher was “significantly impaired,” saying there were not 10% of children with an aver­age IQ who would perform as poorly as he did on the test. (Mateer Dep. at 55.)

Dr. Mateer admitted that a child can suffer from attentional capacity problems without necessarily being brain-impaired; e.g., severe depression has been associated with attention capacity difficulties. (Mateer Dep. at 58.) She opined that the death of a child’s mother could result in emotional problems of the nature and degree that might cause these attention difficulties. (Mateer Dep. at 59.) Another stressor which could result in atten­tion deficit would be the criminal prosecution and sentencing of a close family member. (Mateer Dep. at 60.)

Dr. Mateer noted the sound and visual symbol recall test also demonstrated impair­ment because over a span of time, Christo­pher’s ability to recall fell dramatically. (Mateer Dep. at 64.) She also concluded the level of learning subtest of the auditory ver­bal learning test demonstrated impairment.

She considered Christopher’s scoring un­der the paragraph copy test to be abnormal and, although not a localizing test, to be consistent with frontal lobe impairment. She considered his reading speed to be below his age expectation. (Mateer Dep. at 68.) She rated the attention deficit disorders evalua­tion scale with low percentiles, thus consider­ing them below normal. These scores, how­ever, are based upon the subjective history as related by Mr. Chappie to Dr. Mateer and are wholly dependent upon the accuracy of the history reported. (Mateer Dep. at 69.) Dr. Mateer noted:

[Tjhere are likely some psychogenic fac­tors related to the loss of a parent, and readjustment to life without that parent, as well as now to remarriage and combining of families, but I think that the impact on the cognitive and behavior functioning of Chris of those factors is difficult. I would have to say it’s difficult to determine, but I believe that his cognitive abilities and the nature of his behavior changes is fully explainable and accountable and consistent with the nature of his brain injury.

(Mateer Dep. at 71-72.)

Dr. Mateer disagreed with Dr. Domitor’s conclusion that Christopher’s cognitive im­pairment is mild; rather she thought some of the “deficits are at least moderate.” (Mateer Dep. at 76.)

Dr. Mateer concluded the bulk of Christo­pher’s recovery has been made. She con­cluded he is likely to be left with permanent residual problems with attention, memory and executive functions. She believed that, with appropriate support within the school setting, as well as counselling, academic and cognitive support, he should be able to com­plete high school; without such support, he would be at high risk for dropping out. She also noted the major focus of therapy should be to teach use of the compensatory strate­gies to help him acquire an understanding of his personal deficits, enabling him to improve his coping skills. However, she also noted it is more difficult to teach children because they do not have a previously fully-developed system. (Mateer Dep. at 86.)

When asked on a more probable than not basis to a reasonable degree of neuropsycho-­logical certainty, whether these remediation programs would be successful, she said she did not believe anything was going to make Christopher’s problems go away. She con­cluded the remedial programs will be “criti­cal and necessary to him to provide him with support and assist in monitoring and the kind of environmental controls to allow him to move forward the best he can.” (Mateer Dep. at 87.) When asked on the same basis, whether Christopher was going to be em­ployable, she concluded he was at a “much higher risk for difficulties with employment and that there may well be various employ­ment he would have been capable of perform­ing that he will clearly not be now.” (Mateer Dep. at 87.)

Dr. Mateer opined Christopher was an ex­ample of how easy it was to overlook or ' misinterpret the fact he had been brain in­jured. On one hand, his vocabulary, his kind of “basic sustained simple attention,” and his visual, spaeial, and language skills were con­sistently tested above the 50th percentile and as high as the 75th percentile for verbal IQ and vocabulary knowledge. However, when reviewing scores involving attention, concen­tration, new learning and memory, he fell below the 25th percentile. Thus, there is some indication of impairment. (Mateer Dep. at 98.)

Characteristic of this type of impairment, are persons with problems involving low self esteem, motivation, self-confidence and orga­nizational skills. (Mateer Dep. at 99.) She concluded Christopher has suffered frontal brain injury and reflected “continuing prob­lems secondary to that frontal image.” (Ma-­teer Dep. at 101.)

In contrast to Plaintiffs evidence, Defen­dants argue Christopher does not have a permanent brain injury, but that the prob­lems which are manifested now could have been predicted based upon Christopher’s school history before the accident, particular­ly his declining academic performance and increasing problems with behavior. Defen­dants also attribute Christopher’s current problems to the death of his mother and his father’s remarriage and the adjustments in­herent in blending families. Defendants’ ar­guments are based on evidence Christopher had no behavioral problems while visiting his sister in New York on two occasions and Christopher’s own statement that his grades are improving and that he enjoys school. Defendants’ also offer the testimony of medi­cal experts, Patrick S. Lynch, M.D., and Ralph M. Reitan, M.D.

Dr. Lynch, a consultant in neurosurgery and neurology, reviewed the history of Chris­topher’s injury and the clinical findings after the injury, including the CT scan. Based on that history, Dr. Lynch opined Christopher would make a full, uncomplicated recovery without any demonstrable neurological defi­cits. He noted if there was some permanent loss of brain tissue from the accident second­ary to the hemorrhages in the frontal lobes, the loss of tissue would, accordingly to CT scans, be relatively small in comparison to the total mass of white matter in the frontal lobe. Additionally, the cortical brain cells that transmit through this dead area would seek other roots and transmit impulses to other brain cells nearby, thus bypassing the damaged areas. Children are more likely to develop this type of compensation because the brain is not fully developed. Dr. Lynch also referred to his clinical practice where he has observed many patients make a full re­covery from what appeared to be a severe brain injury.

Plaintiff contends Dr. Lynch’s testimony does not meet the evidentiary re­quirements of Daubert v. Merrell Dow Phar­maceuticals, Inc., — U.S. -, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).¹⁴ Having re­viewed Dr. Lynch’s opinion under the Dau-­bert criteria, the court accepts Dr. Lynch’s testimony. Of significance is the fact, Dr. Lynch’s testimony is based on his personal observations involving patients he has treat­ed over the years.

There is no Daubert challenge to the testi­mony of Ralph M. Reitan, Ph.D., although Plaintiff does argue that Dr. Reitan’s meth­odology is viewed by some experts as outdat­ed. Dr. Reitan reviewed Christopher’s histo­ry, his raw test scores administered under Dr. Domitor’s direction, reports by Dr. Ma-­teer and raw test data, as well as Christo­pher’s school records. Dr. Reitan adminis­tered most of the Halstead-Reitan Neuro-­psychological Test battery for older children. He noted that most of the test scores fell in the normal range. Dr. Reitan also conclud­ed, however, that there were certain mild deviations that could be of significance re­garding minor brain dysfunction. (Reitan Report at 2.) In Dr. Reitan’s report he noted:

Some scores are very good; some scores are below normal; most scores are in the average range. This is exactly what hap­pens with normal (non brain-damaged) children. In terms of the objective test results, Chris appears to be essentially normal. Nevertheless, from a clinical point of view, I would postulate that there might be some very mild left cerebral defi­cits and that Chris might be having more trouble in school as a result. If brain impairment of a very mild nature is pres­ent, it would be compatible with head trau­ma.

(Reitan Report at 2.) It was noted the poor­est scores were on the Tactual Performance Test-Localization (TPT-L) and Grip Strength. Dr. Reitan concluded a serious error had been made in test administration of the TPT-L, rendering the score invalid. As to the grip strength, it was not indicative of intellectual or cognitive abilities.

Dr. Reitan rejected Dr. Domitor’s conclu­sions, finding fault with his reliance on the mazes test and picture arrangement subtest as being indicative of frontal lobe injury. (Reitan Report at 4.) Dr. Reitan noted that Dr. Domitor may have relied on results from adult literature and incorrectly applied these results to a child. This was incorrect, in Dr. Reitan’s view, because children have not yet developed their brain-related abilities to a full extent.

Dr. Reitan compared Christopher’s scores to those scores of normal and brain-damaged children. Although there was a significant difference, Christopher’s scores were, for the most part, higher than the normal controls on nine of the 18 tests and nearly identical scores on four more. His scores clearly were lower than either group on the TPT-L and grip strength as discussed earlier. (Reitan Report at 6.)

Dr. Reitan also rejected Dr. Mateer’s as­sessment, as it was not what he described, a “neuropsychological” examination, but in­stead “was the kind of ability and cognitive testing that might be used to assess a normal child.” (Reitan Report at 9.) Christopher’s test results were never compared with those of brain-damaged children, with the single exception of the Trail Making test, one devel­oped by Dr. Reitan. (Reitan Report at 11.) In contrast, under the Reitan method, the standard scientific procedure for developing neuropsychological tests is to perform re­search on brain-damaged and normal con­trols and then to determine how the test results differ. The results of the research on these two groups then must be correlated and compared with the results of the individ­ual subject. Finally, Dr. Reitan suggests Dr. Mateer may have been biased by her knowl­edge of the circumstances that led to the testing, including the history of head injury. (Reitan Report at 16.) Dr. Reitan espouses making conclusions first and then corroborat­ing those conclusions by reviewing the sub­ject’s history.

Dr. Reitan also reviewed Christopher’s ac­ademic history, noting his grades were in a steady decline from second through fourth grade. In Dr. Reitan’s view, the Bs, Cs and Ds earned in fifth grade may have been a continuation of the trend. Christopher’s be­havior scores also improved following the first year of the injury. His scores on the CTBS administered the year after injury were closely in line with an expectation based on his IQ. (Reitan Report at 19.) Finally, Dr. Reitan notes that the significant drop in his MAT scores in 1993, could not be corre­lated to the recovery pattern noted by chil­dren with significant brain injury. (Reitan Report at 19.) Dr. Reitan speculates Chris­topher may not have been trying hard enough on the tests. Dr. Reitan concluded it is extremely difficult to make predictions re­garding the long-term outcome of children with mild brain damage. (Reitan Report at 22.)

In addition to the medical testimony re­garding the possible existence of a perma­nent medical disability, Defendants also offer evidence regarding the economic prospects of those students graduating from rural high schools. A report on the success of the achievement of youth in rural low-income areas indicates that family influence is the most important factor in educational attain­ment. The child’s own characteristics are second. Based on the educational and voca­tional history of the Chappie family, only April Chappie has pursued successfully ave­nues involving higher education. The other two Chappie sons have been involved in retail sales and have advanced through on-the-job training. No one in the Chappie family has a four-year degree, although the court recog­nizes Peggy Chappie had very high expecta­tions for Christopher in that regard, as she had come to fully appreciate the value of higher education.

Oroville High School statistics reflect that in the Class of 1993, 49 students entered as freshmen and 37 graduated. Of those 37, only 8 were admitted and attended a four-­year college. Only one in eight will obtain a four-year degree. Nine others went to trade school and 17 directly into employment. (Moisan Report,¹⁵ App. 3.)

Studies support the conclusion that most people who are raised in a rural area will remain in that area throughout their adult life. Those persons remaining in Okanogan County obtain jobs in fields of mining, or­chards, ranching, lumber or construction. (Moisan Report at 6.) Wages in those fields range from $5.25 an hour to $12.40 an hour. Dr. Moisan noted if Christopher successfully completes high school and a trade school, he will be eligible for 74% of the currently iden­tified jobs in the United States.

Based on the evidence, specifically the lack of medical evidence as to long-term prognosis, the court is unable to conclude that Christopher has permanent, organic brain damage. This conclusion is supported by the rapid recovery of his physical symp­toms, Dr. Domitor’s assessment that Christo­pher did not need treatment during the first year after the accident, his fifth grade per­formance, his unremarkable visits to New York,¹⁶ and some indication prior to the acci­dent that his academic performance and be­havior patterns were on the decline. In sub­stantial part, the court finds that causation of Christopher’s problems during the sixth grade was due to his father’s marriage fol­lowing the death of Christopher’s mother, and the adjustment of living with a stepmoth­er and stepbrother, as well as the reaction by the other siblings to the remarriage. The court accepts the test results as they indicate normal scores in most areas. As to those areas which show below normal scores, there is not sufficient scientific evidence to support the conclusion those scores are indicative of permanent organic brain damage in children.

It is noted that sibling April Chappie has left the local job market and resides in New York. Yet, the court also accepts the statis­tical evidence that students graduating from rural high schools more likely will attend a trade school and obtain jobs in the local market.

The court disagrees with Plaintiffs conten­tion that Christopher will be limited to entry level jobs at a minimum wage level. Rather, the court concludes that after intensive reha­bilitation during the remaining years of his minority, Christopher will exhibit, more probably than not, the same success as his stepbrother, Rusty, or his sister. According­ly, no award is made for lost earning capacity or employment opportunities.

Christopher also claims damages for disability which under the Kirk analysis, is the loss of the ability to lead a normal life. The court recognizes that life for Christopher has not been “normal” since the accident and, given the recommended rehabilitation and counseling programs, will not be normal for some time to come. Therefore, the court concludes an award of $125,000 is a reason­able sum to compensate him for the time he will spend during the rest of his minority learning to adjust to the changes in his life that were caused by the accident.

Christopher also seeks an award for loss of enjoyment of life. Under the Kirk definition, there has not been sufficient evi­dence that Christopher is unable to partici­pate in any avocational activities. He is pur­suing athletics in school and is capable of traveling throughout the country. Accord­ingly, no damage award is made for the loss of enjoyment of life.

5. Christopher’s Past and Future Pain and Suffering, and Compensation for Fear.

Recovery for pain and suffering compensates the injured party for the physi­cal and mental discomfort caused by the injury. Kirk, 109 Wash.2d at 461, 746 P.2d 285, citing Thompson v. Nat. R.R. Passenger Corp., 621 F.2d 814 (6th Cir.), cert. denied, 449 U.S. 1035, 101 S.Ct. 611, 66 L.Ed.2d 497 (1980). Given the length of his hospitaliza­tion, the severity of his injuries, and the rehabilitation Christopher must undergo, the court concludes a sum of $325,000 is appro­priate. Additionally, under the same analy­sis used in the survival claim, Christopher is to be awarded $30,000 for the fear he experi­enced immediately before the accident.

6. Set-Off.

Defendants represent advancement of an undisputed $83,000 to Plaintiffs, including $6,000 for funeral expenses and $3,880 for property damage. That amount shall be set off against the final judgment. Accordingly,

IT IS ORDERED:

1. Plaintiffs are awarded judgment against Defendants, jointly and severally as follows:

A. Estate of Peggy Chappie:

Funeral Expenses $ 6,000

Chappie Vehicle 3,880

Pear 25,000

Net Loss of Earning 198.288

Total Award to Estate of Peggy Chappie: $233,168

B. Wrongful Death Claims—Adult Children:

Rusty Chappie $60,000

Greg Chappie $60,000

April Chappie $60,000

C. Christopher Chappie:

Wrongful Death Claim $160,000

Tort Claims:

Past Medical $ 29,013

Future Medical $124,000

Temporary Disability $125,000

Pain and Suffering $325,000

Fear $ 30,000

Total Awarded to Christopher Chappie: $793,013

D. Michael Chappie:

Wrongful Death Claim $75,000

Tort Claim:

Parent-Child Consortium 30.000

Total Awarded to Michael Chappie: $ 105.000

TOTAL JUDGMENT BEFORE SET-OFF $1,311,181

Set Off ($83,000)

TOTAL JUDGMENT AFTER SET-OFF $1,228,181

Plaintiffs also are awarded their reasonable costs.

2. The Clerk shall enter this Order, pro­vide a copy to counsel for Plaintiffs and Defendants and arrange for return of exhib­its to parties. Judgment shall be. entered for Plaintiffs and the file closed.

1 . The court commends the parties and counsel for agreeing to address the issues in this matter through a summaiy bench proceeding. Not only did proceeding as stipulated result in a savings of expense and time to the parties and to the court, but in addition, and more importantly, address­ing the issues under the stipulation exposed the Chappie family to fewer hours of reliving the tragic events forming the basis of Plaintiffs’ claims.

2 . RCW 4.20.060 provides:

No action for a personal injury to any person occasioning death shall abate, nor shall such right of action determine, by reason of such death, if such person has a surviving spouse or child living, including stepchildren, or leaving no surviving spouse or such children, if there is DEPENDENT upon the deceased for support and resident within the United States at the time of decedent's death, parents, sisters or brothers; but such action may be prosecuted ... by the executor or administrator of the deceased.

3 . The modified calculation appears as follows:

Expected annual earnings $ 18,000

Collection period—-years x 16.2

Expected worklife earnings $291,600

Consumption factored at 32% — 93,312

Net loss of earnings $198,288

4 . RCW 4.20.010 provides:

When the death of a person is caused by the wrongful act, neglect or default of another his personal representative may maintain an action for damages against the person causing the death.

5 . In so concluding, it is noted that $160,000 is more than the amount suggested by counsel. Yet, a review of awards in other cases for loss to a minor child of parental consortium following wrongful death reveals this amount to be within the range of an average award, if the term “aver­age” could ever be used when describing such a tragic loss.

6 . "Ecchymosis” is the medical term for a bruise. American Medical Association, Encyclopedia of Medicine, 1989, at 387.

7 . Conjugate gaze refers to eyes which focus to­gether rather than pointing in different di­rections. (Moise Dep. at 32.)

8 . Tests that were administered included the Aphasia Screening, Benton Visual Retention, Draw-a-Bicycle and Clock Category, Rey Com­plex Figure Drawing, Lateral Dominance, Manu­al Finger Tap, Sensory Perceptual, Tactual Per­formance, Verbal Fluency, WRAT-R, Woodock-­Johnson Selected Subtests, Draw a Family, Draw a Person, Group Peg Board, Incomplete Sen­tences, Knox Cube, Peabody Picture, Vocabulary, Ruff Figure of Fluency, Stroop, Symbol-Digit Modalities, WISCX-R, Wisconsin Card Sorting, Trails, Speech, Sounds, Perceptions and Sea­shore Rhythm. (Reitan Dep. at 61.)

9 . Dr. Domitor suggested Mediplex in Mountlake Terrace or the Center for Cognitive Rehabilita­tion in Puyallup. (Domitor Dep. at 177.)

10 . Those expenses reimbursed are for the follow­ing amounts:

Oroville Emergency Aid $ 157.00

North Valley Hospital 1,934.41

North Valley Family Med. 399.80

Lifeline Ambulance, Inc. 218.60

Deaconess Medical Center $16,884.89

Dr. John Demakas 1,306.00

Dr. Vivian Moise 636.21

P.T. Works 140.00

Spokane Radiology Consultants 416.00

Dr. Paul Domitor 2,499.00

Robert F. Nevins/Jean Williams 4,520.89

TOTAL $29,013.00

11 . The court accepts the total offset method used by Plaintiff's expert; thus, the damages awarded for future medical expenses will not be reduced.

12 . Neuropsychologist Dr. Catherine Mateer de­fined "executive functions" as "a broad range of skills and functions that are known to be sensi­tive to frontal lobe functioning. It includes such things as being able to initiate or start behaviors, being able to set goals, to anticipate conse­quences of one’s actions, to seek and organize one's self, and to be able to respond to environ­mental and social constraints. It really incorpo­rates a range of both cognitive and psychosocial behavior phenomena." (Mateer Dep. at 92.)

13 . The history taken by Dr. Mateer was inconsis­tent with the one taken by psychologist Dr. Rou-­bos during Christopher's hospitalization to the extent that Dr. Roubos noted from talking to Christopher's father that Christopher was "some­what spoiled and demanding.” (Roubos Dep. at 36.) Dr. Roubos also reported Christopher’s pre-­accident history as Christopher being a "little hyper with a tendency to act out.” (Mateer Dep. at 38.)

14 . Daubert provides factors for the court to con­sider in determining whether expert testimony is based on "good” science. Rather than making it more difficult to admit expert scientific and tech­nical testimony into evidence, Daubert purports to liberalize the standard for admission. In abol­ishing the "general acceptance" standard of Frye v. United States, 54 App.D.C. 46, 47, 293 F. 1013, 1014 (1923), the Daubert Court recognizes that scientific or technical theories which are ground­ed on valid scientific principles are admissible even though perhaps not "generally accepted" as relevant and reliable in the scientific community. The court recognizes that it takes time for new and innovative theories to become "generally accepted." General acceptance is a factor to be considered; however, it is not dispositive.

The focus is on the "methodology" of the ex­perts, and not the conclusions which they generate. Daubert, - U.S. at -, 113 S.Ct. at 2797. This does not mean, however, that a conclusion will be admissible merely because some part of the methodology is scientifically valid. The en­tire reasoning process must be valid. Daubert, at -, 113 S.Ct. at 2796. A credible link must be established between the reasoning and the con­clusion. Once that is accomplished, the inquiry crosses the line from one of admissibility to one of the weight the trier of fact should accord to the conclusion.

A distinction also must be made between the methodology and qualifications. An expert may be “qualified” to render an opinion, but the methodology may be suspect. Whether a deter­mination can be made that an expert has used reliable methodology, but that the expert is not "qualified” seems unlikely, although perhaps not inconceivable. The undersigned believes there are three separate areas of inquiry: qualifica­tions, methodology, and conclusions. In making inquiry into these areas, it is important not to blur the lines between admissibility and weight of the evidence.

15 . Plaintiff challenges the testimony of Dr. Moi-­san, arguing it does not meet the Daubert stan­dard as that testimony relates to Dr. Moisan's opinion that Christopher will enter the job mar­ket in Okanogan County in the mining field. The court agrees this is Dr. Moisan's personal opin­ion and is unsupported by any scientific analysis. However, the court does not rely on this specific conclusion in making its findings.

16 . The court notes April Chappie testified in her deposition that Christopher did not have behav­ioral problems during his visits with her in New York. (April Chappie Dep. at 19-20.) This was so, although April Chappie also stated she had noticed changes in Christopher, specifically that he appeared depressed and seemed to be frus­trated. (April Chappie Dep. at 24.)