2008, an employee of Jefferson County Public Transportation
Benefit Area (Jefferson Transit) caused a vehicle collision
with Michael Gilmore. Gilmore brought a personal 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.
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.
unpublished decision, the Court of Appeals reversed, holding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. (Wash.Ct.App.
Apr. 25, 2017) (unpublished),
We reverse the Court of Appeals.
was stopped at a traffic light. Charles Cotterill, a
Jefferson Transit employee, was driving a bus behind 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,  Gilmore described the collision as
"devastating." 5 Verbatim Report of Proceedings
(VRP) at 773.
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 thoracic lumbar
spine, left elbow, and both of his hips and knees.
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 opioids and placed
on a "high risk medication management" program. He
finally underwent neck surgery in 2015.
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
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.
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,
having 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.
granting Gilmore's motion to exclude Dr. Tencer's
testimony, the trial court engaged in a lengthy discussion
with 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.
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--1 think it will be
confusing to the jury. I think that it will be misleading to
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, Gilmore's sons, Alex and Matthew Gilmore, each
testified to Gilmore's physical and mental condition
after the collision. Alex Gilmore testified:
Um, well, it was -- it was such a long time ago, but I do my
best here, uh. He, well, wasn't able to work as soon as
the collision happened. He had to stop working, uh. And he,
pretty much, at -- things, kind of, hit the fan when, uh, he
wasn't able to work. And, uh, it was hard to pay the
He - he and my mom didn't exactly get along very well for
-- for much longer after [the collision] happened. Uh, lots
of financial issues causing them to argue. And my dad and I,
at one point, ended up, uh, moving out into a travel trailer,
uh, with some friends and -- because of the arguments between
them -- between my parents.
at 508. And Matthew Gilmore testified:
Um, after the collision he started drinking. Uh, he, I guess,
didn't feel like he was able to provide for his family
the way he should and wasn't able to work. You know, he -
he was working 80 hours a week prior to the accident. Uh, sat
records with Brother's Plumbing for, uh, installs on
water heaters and all sorts of stuff.
Um, and to go from that to nothing he didn't know what to
do. He went way downhill, uh, you know. You could see the
sadness in his eyes. You could see the pain. Um, and he
started drinking and eventually became addicted to it. I - I
guess he was addicted to it years and years and years ago.
Uh, well before I was ever born, he quit and, uh, picked it
back up. And that's when our relationship started going
Id. at 532. After Matthew Gilmore's direct
examination, Jefferson Transit argued that Alex and Matthew
Gilmore's testimony opened the door to collateral source
payments since it violated the motion in limine prohibiting
any "mention of Plaintiff s financial status, " and
Jefferson Transit moved to allow evidence of Gilmore's
L&I payments. Id. at 536. The trial court denied
this request, but also explained:
[I]f there's a case out there that suggests to me that
she's opened the door and this L&I stuff can come in,
then it'll probably come in. But as of right now, I
haven't seen that case or anything so I'm not going
to go down that road.
Id. at 543.
closing arguments, Gilmore's counsel made some
questionable statements to the jury. She said:
So what do we do? Do we let the government win?
Mike can't fight the government alone. He can't.
Can't fight the government. We certainly can't fight
the government in this case without you. Because it's you
who are going to determine the amount that's going to
fairly and reasonably compensate Mike for these injuries.
7 VRP at 989, 991, 996. She added:
I'm going to tell you something, that there has been a
fraud perpetuated in this courtroom during this trial. There
has been. There has been someone in this trial who has
continually tried to mislead you, who has continually thrown
evidence at you to try to take you off what's really at
issue in this case. And that's the Defense.
I'm going to talk to you about some of the . . . frauds
that the Defense has ...