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Gilmore v. Jefferson County Public Transportation Benefit Area

Supreme Court of Washington, En Banc

April 19, 2018

MICHAEL GILMORE, a single man, Petitioner,
JEFFERSON COUNTY PUBLIC TRANSPORTATION BENEFIT AREA, d/b/a Jefferson Transit Authority, a municipal corporation, Respondent.

          MADSEN, J.

         In 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.

         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.

         In an unpublished decision, the Court of Appeals reversed, holding that the trial court abused its discretion with respect to each issue.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. (Wash.Ct.App. Apr. 25, 2017) (unpublished), We reverse the Court of Appeals.



         Gilmore 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, [1] Gilmore described the collision as "devastating." 5 Verbatim Report of Proceedings (VRP) at 773.

         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 thoracic lumbar spine, left elbow, and both of his hips and knees.

         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 opioids and placed on a "high risk medication management" program. He finally underwent neck surgery in 2015.

         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.


         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.

         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, 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.

         Before 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.

         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--1 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.


         At 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 bills.
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.

         4 VRP 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 way downhill.

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 Argument

         During 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 ...

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