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Johnston-Forbes v. Matsunaga

Supreme Court of Washington, En Banc

August 28, 2014

Cathy Johnston-Forbes, Petitioner ,
v.
Dawn Matsunaga, Respondent

Argued May 29, 2014

Page 389

Appeal from Clark County Superior Court. 09-2-02318-6. Honorable Diane M. Woolard.

Michael H. Bloom, for petitioner.

Douglas F. Foley (of Douglas Foley & Associates PLLC ); and Vernon S. Finley, for respondent.

Philip A. Talmadge on behalf of Government Employees Insurance Company, Farmers Insurance Company of Washington, and Progressive Casualty Insurance Company, amici curiae.

AUTHOR: Justice Charles W. Johnson. WE CONCUR: Chief Justice Barbara A. Madsen, Justice Susan Owens, Justice Mary E. Fairhurst, Justice Sheryl Gordon McCloud. AUTHOR: Justice Mary I. Yu. WE CONCUR: Justice Debra L. Stephens, Justice Charles K. Wiggins, Justice Steven C. Gonzá lez.

OPINION

Page 390

C. Johnson, J.

[181 Wn.2d 348] ¶ 1 This case concerns whether, under Evidence Rules (ER) 702 through 705, the trial court properly admitted expert biomechanical testimony in an automobile collision case. In August 2006, Dawn Matsunaga rear-ended the car that Cathy Johnston-Forbes was riding in. Johnston-Forbes claimed that she suffered injuries as a result of the collision and sued Matsunaga. Before trial, Matsunaga identified Dr. Allan Tencer as an expert who would be testifying as a biomechanical engineer. In a motion in limine, Johnston-Forbes moved to exclude Tencer's testimony, arguing that he was not qualified as an engineer, that his opinion lacked sufficient foundation, and that in viewing photographs he could not account for Johnston-Forbes's precise body position at the time of [181 Wn.2d 349] impact. The trial court limited Tencer's testimony but denied Johnston-Forbes's motion, and the jury returned a verdict for Matsunaga. The Court of Appeals affirmed. We affirm the Court of Appeals.

Facts

¶ 2 Johnston-Forbes is a professional golfer. Once a year, the Ladies Professional Golf Association (LPGA) holds a tournament in the Portland/Vancouver area. Johnston-Forbes, her husband, and her two young daughters came to Vancouver for the tournament in August 2006. After she finished her first round, Johnston-Forbes and her family were heading back to their hotel room, driving in a Toyota Camry rental car. Johnston-Forbes was seated in the backseat between two car seats holding her two young daughters. They had come to a complete stop for a red light. Johnston-Forbes was leaning forward and twisted back and to the left, facing one of her daughters, when the car was struck from behind by Matsunaga's Ford Mustang.

¶ 3 Johnston-Forbes testified that she started experiencing headaches and pain and stiffening of the muscles of her neck that evening. The pain continued, and while the pain in her back eventually resolved, the pain in her neck did not. In 2010, four years after the accident, an MRI (magnetic resonance imaging) revealed that Johnston-Forbes had a herniated disc in her neck. She did not return to the LPGA tour.

¶ 4 In May 2009, Johnston-Forbes sued Matsunaga for general and special damages arising from Matsunaga's alleged negligence in the 2006 car accident. Matsunaga admitted that she struck Johnston-Forbes's vehicle but denied that the collision caused Johnston-Forbes's injuries. Johnston-Forbes moved in limine to exclude the vehicle damage photographs and the expert testimony of Tencer. [1] [181 Wn.2d 350] Johnston-Forbes moved to exclude Tencer's testimony on three grounds:

1) Qualifications - Mr. Tencer is not a licensed professional engineer and Washington prohibits anyone who is not licensed in Washington as a professional engineer from giving engineering opinions.
2) Foundation - Mr. Tencer only viewed pictures taken of defendant's vehicle. He did not examine her vehicle. More importantly, he did not examine any pictures of plaintiff's rental car and never examined that car either. In addition, Mr. Tencer ...

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