IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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CHANNARY HOR, No. 70761-2-1 cr m ^-;
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Cross Respondent, 33*
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THE CITY OF SEATTLE, a Washington UNPUBLISHED
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municipal corporation,
FILED: Auqust 3, 2015
Respondent/
Cross Appellant,
OMAR TAMMAM,
Defendant.
Cox, J. — Channary Hor appeals the judgment on an adverse jury verdict
in this personal injury action. The trial court did not abuse its discretion in either
giving its jury instructions or in refusing to give Hor's proposed instructions.
Further, the trial court did not abuse its discretion in admitting the expert
evidence that she challenges. Finally, the court did not abuse its discretion in
denying her mistrial motion based on alleged misconduct of the City's counsel
during opening statements. We affirm.
This action arose from a tragic accident on May 17, 2006. Before the
accident, Hor was a healthy 16 year old. While riding as a passenger in a car
No. 70761-2-1/2
driven by Omar Tammam, she was rendered quadriplegic. Tammam crashed
into a rockery after failing to negotiate a turn at a high rate of speed. Shortly
before this crash, Tammam had sped away from a police officer who approached
the car where he was seated with Hor in Seward Park.
Because the park was closed at the time, Officer Adam Thorp left his
vehicle, approached Tammam's car on foot, and knocked on its window. Rather
than speaking with Officer Thorp, Tammam sped away with Hor in the car.
Officer Aaron Grant, who was outside Seward Park in his vehicle,
observed Tammam speed past Officer Thorp. Officer Grant turned his car
around and followed Tammam's car. Officer Thorp returned to his vehicle and
followed the other two cars.
Tammam, after speeding from Seward Park, turned left onto Juneau
Street and followed that road uphill to its intersection with Seward Park Avenue
South. Tammam then turned left on Seward Park Avenue South and continued
on that street until he reached the top of the hill. At the top of the hill, Tammam
crashed into a rock wall, severely injuring Hor. Seconds before the crash, the car
reached 86 miles per hour.
Hor sued both Tammam and the City of Seattle. She alleged the City and
its officers were negligent by engaging in a high speed pursuit of Tammam as he
fled.1 Specifically, she claimed their actions violated the Seattle Police
Department's internal pursuit policies. She claimed their negligence was a cause
Appellant's Opening Brief at 23-26.
No. 70761-2-1/3
of her damages. The City denied liability, claiming Tammam's negligent driving
was the sole cause of Hor's damages.
At trial, the jury rendered a defense verdict as to the City. The court
entered judgment on the verdict and denied Hor's motion for a new trial.
Hor appeals. The City cross-appeals.
JURY INSTRUCTIONS
Hor argues that the court abused its discretion in giving certain jury
instructions. We hold that the court did not abuse its discretion in giving its
instructions.
This court reviews legal errors in jury instructions de novo.2 If a jury
instruction correctly states the law, we review for abuse of discretion the trial
court's decision to give the instruction.3 We also review for abuse of discretion
the trial court's refusal to give an instruction.4 "Whether to give a particular
instruction" is also within the court's discretion.5 "Jury instructions are generally
sufficient if they are supported by the evidence, allow each party to argue its
theory of the case, and when read as a whole, properly inform the trier of fact of
the applicable law."6 Whether a jury instruction is appropriate is "governed by the
2 Feraen v. Sestero. 182 Wn.2d. 794, 803, 346 P.3d 708 (2015).
3 State v. Stacy. 181 Wn. App. 553, 569, 326 P.3d 136, review denied. 335 P.3d
940(2014).
4Jd,
5 Stilev v. Block, 130 Wn.2d 486, 498, 925 P.2d 194 (1996).
6 Feraen, 182 Wn.2d at 803.
No. 70761-2-1/4
facts of the particular case."7
Instruction 17 & Proposed Instruction 27
Hor argues that the court abused its discretion by giving instruction 17 and
declining to give her proposed instruction 27. We disagree.
Instruction 17 deals with emergency vehicles. The instruction, based on
WPI 71.01 and RCW 46.61.035, reads:
A statute provides that:
The driver of an emergency vehicle, when in the pursuit of
an actual or suspected violator of the law shall use visual signals,
and audible signals when necessary, to warn others of the
emergency nature of the situation. The driver of an emergency
vehicle may exceed the maximum speed limit so long as life or
property is not endangered.
The driver of an emergency vehicle has a duty to drive with
due regard for the safety of all persons under the circumstances.
The duty to drive with due regard for the safety of all persons
means a duty to exercise ordinary care under the circumstances. A
driver of an emergency vehicle shall be responsible for the
consequences of his disregard for the safety of others.[8]
Hor initially proposed this instruction. But when the court took formal
exceptions to its proposed instructions to the jury, she excepted to this one. She
asked, instead, that the court substitute her proposed instruction 27 for
instruction 17.
Her proposed instruction, based on WPI 71.06, reads:
At the time of this occurrence, Officer Thorp's and Officer
Grant's vehicles did not qualify to be operated as emergency
vehicles. Accordingly, the officers^] vehicles were governed by the
7jd
8 Clerk's Papers at 2924.
No. 70761-2-1/5
same rules and standards as apply to the operators of motor
vehicles generally.191
The notes to WPI 71.06 state that "[t]his instruction should be used in those
instances in which an emergency type of vehicle is involved, but the court
decides as a matter of law that it failed to qualify as such."10
The court declined to substitute Hor's proposed instruction 27 for its
instruction 17 and gave the latter to the jury.
Hor claims that instruction 17 is unsupported by the evidence, misstates
the applicable law, and serves to encourage juror confusion. She is mistaken in
all respects.
Instruction 17 is supported by evidence in the record of Hor's theory of the
case. Hor presented evidence at trial that the officers were negligent by
engaging in a high speed pursuit of Tammam's car with their vehicles when he
sped away from Seward Park. And she argued this theory to the jury during
closing.
Moreover, this instruction was a correct statement of the law. The jury
had been instructed that they could consider the violation of a statute as
evidence of negligence. Instruction 17 informed the jury that it was a violation of
a statute for the driver of an emergency vehicle to endanger life or property by
exceeding the speed limit. It also informed the jury that "[t]he driver of an
emergency vehicle has a duty to drive with due regard for the safety of all
9 Clerk's Papers at 2901.
10 6 Washington Practice: Washington Pattern Jury Instructions: Civil
71.06 (6th ed. 2012).
No. 70761-2-1/6
persons under the circumstances."11 Thus, the instruction was appropriate to the
facts of the case, as it informed the jury about the scope of the emergency
vehicle privilege and the duty that drivers of emergency vehicles owe to others.
We see nothing in either this instruction or the record that supports the
assertion there was any jury confusion based on this instruction. And Hor does
not explain this bald assertion. Thus, we do not further address this contention.
The court also properly refused to give Hor's proposed instruction 27. It
simply does not apply to this case. First, the usage note for the instruction states
that it should be given when the court decides as a matter of law that a vehicle is
not an emergency vehicle.12 There was no such ruling here.
Hor argues that the trial court's ruling on a motion in limine was such a
conclusion. But she is incorrect. The judge who ruled on the motion in limine
was not the trial judge. The court ruled that, due to the City's answers to
discovery, it could not claim that the officers' cars were privileged to speed
because they were acting as emergency vehicles. This ruling was based on
estoppel principles—the officers denied using their lights or sirens, thus the court
determined that they could not later claim that they were privileged to speed as
emergency vehicles.
But the court did not rule as a matter of law that the officers were not
operating their cars as emergency vehicles. Hor testified that the officers pursed
Tammam's car with their lights and sirens turned on. They denied doing so.
11 Clerk's Papers at 2924.
12 6 Washington Practice: Washington Pattern Jury Instructions: Civil
71.06 (6th ed. 2012).
No. 70761-2-1/7
Thus, there was a question of fact whether the officers were driving emergency
vehicles. The fact that the City was estopped from changing its position is not a
ruling that the officers were not driving emergency vehicles as a matter of law.
Accordingly, giving the proposed instruction would have been incorrect.
Second, giving such an instruction, where the factual issue whether the
police vehicles were operating as emergency vehicles was contested, would
likely have been a comment on the evidence. This is an additional reason why
giving such an instruction would have been erroneous under the facts of this
case.
Instruction 26
Hor next argues that the court abused its discretion by giving instruction
26. Specifically, she claims this instruction misstates the law, is misleading and
confusing, is a comment on the evidence, and served to undercut her valid
theory of liability. She is again mistaken.
Instruction 26 stated that "Defendant City of Seattle had no duty to control
Omar Tammam's acts."13
Hor correctly concedes that this statement of the law is "generally true."
One does not generally have any duty to control another absent special
circumstances. But she argues that under her theory of the case, this instruction
was inappropriate. We disagree.
13
Clerk's Papers at 2933.
No. 70761-2-1/8
First, she argues that her theory of liability was that the two police officers
were "controlling" Tammam's actions by pursuing him at high speed. This theory
is without support in any of the cases on which she relies.
Hor cites three cases for the proposition that police officers control the
actions of a fleeing driver. First, she cites Suwanski v. Village of Lombard.14 Hor
relies on the following statement by the Appellate Court of Illinois:
A police pursuit is unique in the sense that it can occur only if two
vehicles are involved, the car that is fleeing and the car that is
chasing. It is essentially symbiotic; both vehicles are necessary to
have a chase. Thus, from the standpoint of causation in fact, it is
difficult, if not impossible, under the facts of this case, to separate
the two in terms of causation. Of course, a jury may very well
conclude that both drivers were the proximate cause of the harm.[15]
This statement does not stand for the proposition that police officers control the
actions of a fleeing driver. It merely states that both a police officer and a fleeing
driver may jointly be the proximate cause of harm.
Second, Hor cites Mason v. Bitton.16 But that case merely states that
police officers may be concurrently negligent if a pursued vehicle harms a third-
party.17
Finally, she cites Yong Tao v. Henq Bin Li.18 But that case is
14 342 III. App. 3d 248, 794 N.E.2d 1016 (2003).
15 ]d at 255-56.
16 85 Wn.2d 321, 534 P.2d 1360 (1975).
17 Id at 326-27.
18 140 Wn. App. 825, 166 P.3d 1263 (2007).
8
No. 70761-2-1/9
distinguishable because it is based on an agent/principal relationship.19 There,
the plaintiff was injured after the van he was riding in crashed.20 The van had
been the second vehicle in a three-vehicle caravan.21 The lead driver instructed
the other drivers to follow him and drove "too fast for the road conditions."22
"According to the lead driver, the second driver was under the lead driver's
control and direction on the journey."23
Division Three of this court held that those circumstances "support a
finding of both control and consent."24 Thus, whether the lead driver and the
second driver had an agency relationship was a question of fact for the jury.25
Here, there was no agency relationship between the officers and
Tammam. Thus, Hor has failed to establish that the officers controlled
Tammam's actions. Consequently, it was appropriate for the court to instruct the
jury that the City had no duty to control Tammam.
Hor also argues that this instruction was a comment on the evidence,
instructing the jury to disregard Hor's theory of the case. Hor is mistaken.
As we noted, there is no support for the proposition that police officers
control the actions of a pursued driver. Moreover, the instruction did not state the
19 ]d at 828.
20 id
21 Id
22 id at 829.
23 id
24 id at 831
25 Id.
No. 70761-2-1/10
City had no effect on Tammam's actions, or that they did not in fact control him.
Instead, it stated that the City had no dutyXo control him. Thus, this instruction
was not a comment on the evidence.
Instruction 27
Hor also argues that the court abused its discretion by giving instruction
27. Specifically, she contends this instruction is both factually and legally
erroneous. She is wrong.
Instruction 27 stated, "Defendant City of Seattle owed Plaintiff Channary
Hor no duty to protect her from Omar Tammam's criminal acts."26
This statement of law is correct, and Hor fails to make a persuasive
argument that any exception applies in this case. She argues that because the
officers had a duty not to negligently enhance the danger she faced, this
instruction was inappropriate. But a duty to avoid negligently exacerbating
danger is not the same thing as a duty to protect Hor from criminal acts.
Instructions 23, 24, and 25
Hor argues that the trial court abused its discretion by giving instructions
23, 24, and 25. We disagree.
Under CR 51 (f), when excepting to jury instructions, a party "shall state
distinctly the matter to which he objects and the grounds of his objection,
specifying the number, paragraph or particular part of the instruction to be given
or refused and to which objection is made." "This objection allows the trial court
26 Clerk's Papers at 2934.
10
No. 70761-2-1/11
to remedy error before instructing the jury, avoiding the need for a retrial."27 If a
party fails to except to a jury instruction at trial, the party cannot raise the issue
on appeal.28
We first note that Hor formally excepted to the court's instructions 17, 19,
26, 27, 29, and the jury verdict form. She did not except to the court's
instructions 23, 24, or 25, as CR 51(f) requires.
When the court took exceptions to its instructions, it ruled that Hor could
submit additional exceptions in writing. But she did so after the case had gone to
the jury with the court's instructions, and the jury had rendered a defense verdict.
Hor did challenge instructions 23, 24, and 25 in a footnote to her motion
for a new trial. Thus, she has preserved this issue for review, but only with
respect to whether the trial court abused its discretion in denying the motion for
new trial. Having failed to except to these instructions prior to the case going to
the jury, as CR 51 (f) requires, we see no basis for overturning the court's
instructions on that basis.
Instruction 23 states that "Omar Tammam was guilty of vehicular assault
for the manner in which he drove on [the date of the accident]."29 Instruction 24
defines vehicular assault as "driv[ing] any vehicle in a reckless manner and
27 Washburn v. City of Federal Way, 178Wn.2d732, 746, 310 P.3d 1275 (2013).
28 id at 747.
29 Clerk's Papers at 2930.
11
No. 70761-2-1/12
caus[ing] substantial bodily harm to another."30 And Instruction 25 states that
"Omar Tammam's reckless driving was a proximate cause of [Hor's] injuries."31
Hor argues that these instructions confused the jury by using the word
"reckless," because the jury was instructed to allocate fault between negligent
parties. She states: "[N]owhere within the [court's] instructions is there any
indication that it had already been determined as a matter of law, (due to the
entry of a default order), that Mr. Tammam had been found 'negligent.'"32
But this statement is false. The court's second instruction told the jury that
"[i]t has already been established, and it should be accepted by you, that Co-
Defendant Omar Tammam was negligent and that his negligence was a
proximate cause of injury and damage to the plaintiff."33 Thus, the court's
instructions, as a whole, adequately informed the jury that Tammam had been
found negligent and that his negligence was a cause of Hor's injuries.
Hor also argues that the instructions overemphasized the City's theory of
the case. Not so. The court's instructions as a whole properly instructed the jury
on the duties that the officers owed to Hor. Instruction 12 provided the general
duty of care that drivers owe to avoid placing others in danger. And instruction
17 stated that "[t]he driver of an emergency vehicle has a duty to drive with due
regard for the safety of all persons under the circumstances" and "[a] driver of an
30 id at 2931.
31 ]d at 2932.
32 Appellant's Opening Brief at 36.
33 Clerk's Papers at 2909.
12
No. 70761-2-1/13
emergency vehicle shall be responsible for the consequences of his disregard for
the safety of others."34
Accordingly, the instructions did not overemphasize the City's theory of
the case. The trial court did not abuse its discretion in denying the motion for a
new trial based on the challenges to these three instructions after verdict.
Instruction 21
For the first time on appeal, Hor argues that the trial court abused its
discretion by giving instruction 21. Because she did not except to this instruction
below, she cannot do so for the first time on appeal.
As just discussed, Hor formally excepted to the court's instructions 17, 19,
26, 27, 29, and the jury verdict form. At the taking of exceptions, the court
permitted Hor to later submit additional exceptions in writing. In her reply brief on
appeal, she identifies her motion for a new trial as the document in which she
excepted to instructions 21, 23, 24, and 25. But while Hor objected to
instructions 23, 24, and 25 in a footnote, her motion for a new trial is silent on
instruction 21. Accordingly, we deem any challenge to this instruction to have
been abandoned.
At oral argument of this case, Hor argued that she preserved for appeal
exceptions to the court's instructions by challenging them prior to the court taking
formal exceptions. That argument is not well-taken.
First, as CR 51 (f) makes clear, the point of formal exceptions is to alert the
court of any and all challenges to the court's instructions so that alleged errors
34 id at 2924.
13
No. 70761-2-1/14
may be either corrected or preserved for appeal. That is our proper focus for
purposes of review, not informal discussions between the court and counsel.
Second, in this case, a review of the record does not clearly show what
material was before the court and counsel during discussions prior to the taking
of formal exceptions. Thus, there was no preservation for appeal of issues then
discussed.
Proposed Instruction 18
Hor also assigns error to the court's failure to give her proposed
instruction 18. Because she neither excepted to this failure below nor argues this
matter in her opening brief, we do not reach this issue.
As we previously discussed, CR 51 requires a party to timely except to the
failure to give a proposed instruction. This record fails to show that Hor did so
below.
Further, "A party that offers no argument in its opening brief on a claimed
assignment of error waives the assignment."35 Hor's opening brief contains no
argument on this assignment of error.
For both of these reasons, we deem this claim of error abandoned.
Verdict Form
Hor argues that the court abused its discretion by omitting the names of
the individual officers from the verdict form. It is uncontested that the form
retained the name of the City of Seattle. She characterizes this omission as a
35 Brown v. Vail, 169 Wn.2d 318, 336 n.11, 237 P.3d 263 (2010).
14
No. 70761-2-1/15
"de facto dismissal" of the officers as defendants in this action. This
characterization is inaccurate and the claim has no merit.
This court reviews special verdict forms under the same standard as jury
instructions.36 "Essentially, when read as a whole and with the general charge,
the special verdict must adequately present the contested issues to the jury in an
unclouded, fair manner."37
We first note that Hor fails in her burden to show prejudice by the omission
of the names of the individual officers from the verdict form. That is because the
only reason she advances for including their names is for the purpose of
apportioning liability. But the jury verdict rendered apportionment of liability
among the City defendants moot because the jury determined there was no
liability of the City. Because it was uncontested that the officers were acting
within the scope of their employment, the City was the ultimate source of Hor's
claim for damages. Absent liability, there simply was no claim for damages.
Even if Hor could overcome this barrier and show prejudice, her
characterization of the omission of the individual officers' names from the special
verdict form as a "de facto dismissal" is simply a mischaracterization of the
record. The record reveals that Hor agreed to omit the names of the officers
from the caption of the case, provided they remained as defendants. We find
nothing in the record to evidence that they were ever dismissed as defendants to
this case.
36 Capers v. Bon Marche, 91 Wn. App. 138, 142, 955 P.2d 822 (1998).
37 Id.
15
No. 70761-2-1/16
Next, when read with the jury instructions, the special verdict form fairly
and adequately presented the issues to the jury. Instruction 3 informed the jury
that "[a] City can act only through its employees. The knowledge gained and the
acts and omissions of city employees while acting within the scope of their
authority are deemed to be the knowledge, acts and omissions of the City."38
Additionally, instruction 4 informed the jury that "[t]he law treats all parties
equally whether they are government entities or individuals. This means that
government entities and individuals are to be treated in the same fair and
unprejudiced manner."39
Thus, the jury was informed that the City could only be negligent through
the acts and omissions of its officers. In this case, there were no allegations that
the officers were acting outside the scope of their employment. Thus, the jury
could not find that the officers were negligent but the City was not. Additionally,
the jury was instructed to treat the City as it would an individual. Accordingly, the
special verdict form adequately presented the issue to the jury. There was no
error.
EXPERT WITNESS TESTIMONY
Hor argues that the trial court abused its discretion by permitting
speculative expert testimony. We disagree.
"Under ER 702, the court may permit 'a witness qualified as an expert' to
provide an opinion regarding 'scientific, technical, or other specialized
38 Clerk's Papers at 2910.
39 Id at 2911.
16
No. 70761-2-1/17
knowledge' if such testimony 'will assist the trier of fact.'"40 Admissibility under
this rule involves a two-part analysis: "'(1) does the witness qualify as an expert;
and (2) would the witness's testimony be helpful to the trier of fact.'"41
Expert testimony requires adequate foundation:
Before allowing an expert to render an opinion, the trial court must
find that there is an adequate foundation so that an opinion is not
mere speculation, conjecture, or misleading. It is the proper
function of the trial court to scrutinize the expert's underlying
information and determine whether it is sufficient to form an opinion
on the relevant issueJ42]
We review a trial court's decision on expert witness testimony for abuse of
discretion.43 This court will overturn the trial court's rulings only if its decision
was manifestly unreasonable, based on untenable grounds, or based on
untenable reasons.44 A decision is manifestly unreasonable if "it falls 'outside the
range of acceptable choices, given the facts and the applicable legal standard.'"45
Accident Reconstruction Testimony
Hor argues that the court abused its discretion by admitting the testimony
of the City's two accident reconstruction experts. Specifically, Hor argues that
40
State v. Yates. 161 Wn.2d 714, 762, 168 P.3d 359 (2007) (quoting ER 702).
41 State v. McPherson, 111 Wn. App. 747, 761, 46 P.3d 284 (2002) (quoting
State v. Guilliot, 106 Wn. App. 355, 363, 22 P.3d 1266 (2001)).
42 Johnston-Forbes v. Matsunaga, 181 Wn.2d 346, 357, 333 P.3d 388 (2014).
43 id at 352.
44 State v. Dye, 178 Wn.2d 541, 548, 309 P.3d 1192(2013).
45 ]d (quoting In re Marriage of Littlefield, 133 Wn.2d 39, 47, 940 P.2d 1362
(1997)).
17
No. 70761-2-1/18
the experts' testimony lacked adequate foundation and was essentially
speculation. We disagree.
Here, adequate foundation supported the expert testimony on accident
reconstruction. Hor does not challenge the expert witnesses' qualifications, only
whether their testimony is "speculation."
The City first presented the testimony of Nathan Rose. Rose testified that
he reconstructed the accident to determine the distance between the Cadillac
Tammam was driving and the patrol cars during the period before the accident.
He and his partner measured the roads where the alleged pursuit happened.
They also performed detailed tests on the car models involved, including their
acceleration capabilities. Rose stated that he also used data recovered from the
Cadillac's "black box" to determine how fast the Cadillac was going in the five
seconds before impact.
Using this data, Rose and his partner created a computer model of the
scene and the vehicles involved. Rose then used this model to evaluate the
witnesses' different versions of events. Specifically, he varied the speed that the
cars were going to determine how it affected the separation distance. Based on
these simulations, he concluded that "the officers' description is physically
possible and reasonable. Ms. Hor's is not."
The City also presented the testimony of William Neale, Rose's partner.
Neale's role in the accident reconstruction involved visualization—"anything that
deals with visibility, lighting, computer animations, computer graphics and alike."
Neale testified that he studied the scene of the accident, taking "a lot of data
18
No. 70761-2-1/19
points[,] photographs, video and a survey of the area." He also compared the
scene to photographs from the time of the accident to make sure there were no
significant differences. Based on this data, Neale calculated the lines of sight on
the roadway.
Neale then used Rose's simulations to determine the separation between
the vehicles during the alleged pursuit. With this data, Neale determined the
vehicles' lines of sight. According to Neale, Tammam would not have been able
to see the officers after he turned from Juneau Street to Seward Park Avenue
South.
Neale also testified that he conducted acoustic tests to determine whether
Tammam would have been able to hear the officers' sirens. He measured the
decibel level of the sirens from various locations. He took the decibel readings in
a variety of ways, including while being inside a car with the windows rolled up
and with the windows rolled down. Neale also calculated the amount of noise
Tammam's car likely made, taking readings from a similar car. Neale took
decibel readings while driving the car at a variety of speeds. Using this
information, Neale testified that Tammam would not have been able to hear the
officers' sirens for 15 to 18 seconds before the crash.
In sum, both Rose and Neal gave detailed descriptions of the data that
they relied on. They also described the methods by which they gathered that
data. Accordingly, it was not an abuse of discretion for the trial court to rule that
adequate foundation supported their testimony and it was not speculation.
19
No. 70761-2-1/20
Hor argues that Rose failed "to take into consideration the random
variables of speed, the driver's experience and skill, etc." But Rose testified that
given the speed of the Cadillac before impact, the location of the alleged pursuit,
and the physical capabilities of the cars, it was "physically impossible for the
officers to keep up with the Cadillac." Because Rose testified that it was
physically impossible, he was testifying that it was impossible under any set of
variables. Thus, his testimony was not dependent on variables such as driving
skill and experience. Accordingly, the fact that Rose did not account for certain
variables is not material.
Hor argues that Rose's simulation "was primarily, if not exclusively, based
on the false premise that if a car is capable of driving faster than another car, it
will do so." Hor argues that Rose assumed that Tammam drove faster than the
police cars merely because the Cadillac was capable of doing so. This is an
inaccurate characterization of Rose's testimony. Rose testified that the
Cadillac's "black box" revealed that it was going 86 miles per hour five seconds
before the crash. Based on this data, he "assum[ed] that [Tammam] is going as
much throttle that he needs to, in order to reach that 86 miles per hour, five
seconds prior to the impact." Thus, Rose's testimony was not improperly
speculative.
Hor also argues that Neale's line of sight evidence resembles a line of
sight video that was excluded in an out-of-state case. In Lorenz v. Pledge, the
Illinois Court of Appeals ruled that a line of sight video was inadmissible because
the party failed to "demonstrate that the essential conditions of the line-of-sight
20
No. 70761-2-1/21
evidence offered by their expert were substantially similar to the conditions" at
the time of the accident.46 But that case is distinguishable.
In Lorenz:
[T]he pursuit involved speeds in excess of 100 miles per hour, while
the SUV and squad car in the video were driving at 40 miles per
hour. The vehicles in the experiment were in a different lane than
the SUV and [the defendant's] vehicle, and standing traffic is visible
in the video that was not present when the accident occurred. The
SUV's lights were on in the video, contrary to the pursued SUV,
which had turned off its lights during the pursuit. The video was
taken from a static position in the left-turn lane, while the evidence
at trial suggests [the plaintiff's] minivan was consistently moving
through the intersection.[47]
Thus, in Lorenz, the video was significantly different from the events that
transpired.
In contrast, here, Neale's testimony establishes that he reasonably
replicated the conditions of the accident. Thus, there was a showing that the
conditions were substantially similar to the conditions at the time of the accident.
Hor argues that the software Rose used for his simulations, PC-CRASH,
is unreliable, making his testimony "inherently speculative." Hor relies on State v.
Sipin for this argument.48 That reliance is misplaced.
In that case, the State used a version of the PC-CRASH software to try to
prove that Michael Sipin had been driving a car.49 Sipin and his friend were both
46 2014 IL App (3d) No. 130137, H 21, 12 N.E.3d 550. appeal denied, 21 N.E.3d
714(2014).
47 id at H20.
48130 Wn. App. 403, 123 P.3d 862 (2005).
49 id at 405-06.
21
No. 70761-2-1/22
inside a car when it crashed and were both ejected from the car.50 The State
attempted to use PC-CRASH to demonstrate that based on the physical
evidence, Sipin had been in the driver's seat at the time of the collision.51
Sipin challenged this evidence under the test announced in Frye v. United
States52 for the admissibility of novel scientific evidence.53 At the Frye hearing,
the State's expert witness relied on two studies validating PC-CRASH.54 One
study "showed a comparison between staged collisions of vehicles that
measured tire marks, speed, and direction, and PC-CRASH simulations, and
found that the computer simulations predicted speeds in car crashes that were in
agreement with 'real world' results."55 The other study was a validation of PC-
CRASH's model of collisions between vehicles and pedestrians.56
But no validation studies supported the specific use of PC-CRASH
involved in that case—simulating the movement of bodies within a vehicle.57 The
expert admitted that "no studies currently existed that validated PC-CRASH for
use in simulating the interaction between a person and the interior surfaces of a
50 id at 407.
51 Id at 408.
52 293 F. 1013 (D.C. Cir. 1923).
53 Sipin, 130 Wn. App. at 408.
54 id at 408-09.
55 id at 409.
56 Id at 410.
57 Id.
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No. 70761-2-1/23
vehicle during an accident."58 The trial court allowed the expert to testify over
Sipin's objection.
After the jury convicted Sipin, he moved for a new trial. Sipin submitted
three studies that arguably undermined the validity of using PC-CRASH to
simulate the movement of occupants within vehicles.59 He also submitted an
assessment of the State's PC-CRASH simulation from PC-CRASH's North
American distributor.60 The distributor stated that the "program had not been
validated for use in modeling the interaction of occupants within the vehicle
interior, and that [the State's] use represented 'an overextension of the
capabilities of the model.'"61
On appeal, after conducting additional, independent review of scientific
materials, this court held that the State's use of PC-CRASH had not been
accepted by the scientific community.62 The Sipin court carefully limited its
holding to that expert's specific use of PC-CRASH.63 It noted that in State v.
Phillips,64 Division Two of this court had held that PC-CRASH is generally
accepted by the scientific community.65 But the Sipin court noted that in Phillips
58 id
59 id at 412.
60 id at 413.
61 id
62 Id at 420.
63 Id at 421.
64 123 Wn. App. 761, 98 P.3d 838 (2004).
65 Sipin, 130 Wn. App. at 420-21.
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No. 70761-2-1/24
"the PC-CRASH program was used to predict movement of the vehicle in a
single-impact crash, and the relevant scientific community of accident
reconstructionists agreed that the computer program was reliable for that
purpose."66
Hor argues that the present case is analogous to Sipin. She argues that
because the Sipin court did not allow PC-CRASH to be used to simulate the
movement of multiple bodies within a vehicle, this court should not allow PC-
CRASH to be used to simulate the movement of multiple vehicles over a
distance. This argument is untenable.
First, in this case, the City's accident reconstruction experts did not use
PC-CRASH for an unsupported use, such as simulating the movement of bodies
within a car. Instead, they used the program to simulate the movement of
vehicles, calculating how far behind the officers' vehicles were from Tammam's
car. Hor fails to cite anything indicating that this is not an accepted use of PC-
CRASH.
Second, in Sipin, the court was presented with evidence that the State's
use of PC-CRASH was not accepted in the scientific community. Here, Hor has
failed to present any evidence showing that it is not accepted in the scientific
community that PC-CRASH can be used to simulate the relative positions of
multiple vehicles. Rose testified that PC-CRASH is "widely used in the industry"
and has been "heavily tested, [and] published about." Hor does not controvert
this with any evidence.
66 Id at 421.
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No. 70761-2-1/25
Economic Expert Testimony
Hor also argues that the testimony of the City's economic expert was
"false and misleading." Specifically, she argues that the expert used a discount
rate that was contrary to industry standards. This claim is without merit.
We note again that Hor raises an issue without meeting her burden on
appeal to show prejudice. Specifically, this claim attacks a basis for the
determination of damages. The jury assessed damages solely against
Tammam, not the City. Accordingly, the challenged testimony may adversely
affect Hor's claims against Tammam. But there simply is no showing it has
anything to do with the City.
In any event, there is no merit to this claim. At trial, the City's expert
witness William Partin stated that 5.98 percent was an appropriate discount rate
to apply to the award of damages. Partin testified that the appropriate discount
rate in this case was based on the use of a "blended portfolio." That would mean
investing one third of the award in "short-term treasury bills, a third in the AAA
rated bond fund . .. and one third in an S&P 500 Index fund." Partin testified that
the discount rate that this method produced was in the middle of the range of
discount rates that economists use.
Hor objected to the use of this blended portfolio method, arguing that it
was not accepted by economists. The trial court and counsel questioned Partin
on his methodology outside the presence of the jury. Partin testified that other
economists use the same methodology and cited a journal article that supported
25
No. 70761-2-1/26
his views. The trial court ruled that Hor's objections went to the weight of Partin's
testimony rather than to its admissibility.
This was not an abuse of discretion.
Hor relies on Barth v. Rock.67 But that case is not analogous. In Barth, an
expert witness testified that the plaintiff had died from an allergic reaction to
sodium pentothal.68 To support his opinion, the witness cited a study that
purportedly showed 55 documented cases of this type of allergic reaction.69 The
witness did not have a copy of the study but gave the name of its author and the
textbook in which it was published.70
When counsel later obtained a copy of the study, he learned that the 55
cases in the study were not allergic reactions to sodium pentothal, but to
"barbiturates in general."71 Additionally, "[o]ther expert witnesses testified that an
allergic reaction to sodium pentothal was an event so rare there are only nine
reported cases out of billions of surgeries over a period of 40 years."72
This court held that because the witness's testimony misled the jury, and
because of "the speculative nature of the theory of allergic reaction to sodium
pentothal," the trial court did not abuse its discretion by ordering a new trial.73
67 36 Wn. App. 400, 674 P.2d 1265 (1984).
68 Id at 403.
69 id at 403-04.
70 id at 404.
71 Id
72 \A
73 id at 404-05.
26
No. 70761-2-1/27
Barth is not analogous to the present case. In Barth, the expert witness
gave patently false testimony. Here, Hor's expert economic witness simply
disagreed with Partin. Hor submitted a declaration by its economic expert that
disagreed with Partin. The declaration stated:
I have not come across any economist or forensic accountants
(other than Mr. Partin in this case) that have used corporate stock
returns as a component for discounting future losses for personal
injury or wrongful death claims. I have a faint recollection that a
few economists (other than Mr. Partin) may have used corporate
bond returns in discounting such losses, but that is not my
practice.1741
Thus, this case is not analogous to Barth.
Additionally, in Barth, the expert witness was not able to be effectively
cross-examined at the time of his testimony because counsel did not have the
book on which the expert relied. In contrast, Hor was able to extensively cross-
examine Partin on his discount rate. Further, Hor's own expert witness was able
to testify about his disagreement with Partin's methods. Thus, Hor is not entitled
to a new trial.
Hor also argues that the court should not have permitted Partin to "provide
an opinion regarding [Hor's] future medical care needs."
Partin testified that he had relied on a care plan created by Dr. Craig
Lichtblau, who also testified at trial, to determine the medical care that Hor
needed. He used this information to calculate the price of the needed services.
Partin testified that experts in his field "gather information by contacting
actual care providers to see what kind of care they actually deliver in a market."
74 Clerk's Papers at 2986.
27
No. 70761-2-1/28
He further testified that he contacted four health care providers. Based on the
information he received from these agencies, he calculated the cost of providing
the services Hor required.
This was not inappropriate opinion testimony. Partin did not provide
expert testimony on Hor's medical needs. Instead, he estimated the cost of her
anticipated medical needs based on a doctor's care plan.
Drug Expert
Hor next argues that the court abused its discretion by allowing
speculative expert testimony about Tammam's drug usage on the night of the
accident. We disagree.
Dr. Andrew Saxon testified that Tammam's toxicology report showed that
Tammam tested positive for marijuana and MDMA, also known as "ecstasy," on
the night of the accident. Based on the amount of MDMA in Tammam's blood,
Saxon testified that "we can say with quite a bit of certainty that he ingested
considerably in excess of 100 milligrams [of MDMA]." He also stated that, based
on studies, 100 milligrams was "sufficient to produce impairment with respect to
perception, cognition, and behavior."
Thus, adequate foundation supported Saxon's testimony that Tammam
was impaired.
Hor cites several cases to argue that the City failed to lay proper
foundation for the proposition that Tammam was impaired, but none are helpful.
In Bohnsack v. Kirkham, the supreme court held that the fact that a driver
"had consumed one or more drinks some hours before the accident" was
28
No. 70761-2-1/29
insufficient to create an issue of contributory negligence when there was
undisputed evidence that the driver was "mentally alert and not under the
influence of alcohol."75 Here, there is no undisputed evidence that Tammam was
"mentally alert" and not under the influence of drugs.
In Purchase v. Meyer, a restaurant was sued for serving alcohol to an
"obviously intoxicated" person.76 For this cause of action, '"a person's sobriety
must be judged by the way she appeared to those around her, not by what a
blood alcohol test may subsequently reveal.'"77 Thus, a blood alcohol content
test was not competent evidence that the patron was obviously intoxicated.78 But
the present case does not involve that cause of action, or its requirement that the
person appear "obviously intoxicated."
In State v. Lewis, the defendant sought to introduce testimony that the
murder victim had methamphetamine in his body, to support his theory of self-
defense.79 Division Two held that it was not an abuse of discretion to exclude
this testimony, when the defense's expert witness "had no opinion" on the effect
of the drug on the victim's behavior.80 In contrast, in the present case, Dr. Saxon
75 72 Wn.2d 183, 192-93, 432 P.2d 554 (1967).
76 108 Wn.2d 220, 223, 737 P.2d 661 (1987).
77 id at 226 (quoting Wilson v. Steinbach, 98 Wn.2d 434, 656 P.2d 1030 (1982)).
78 Id at 226-27.
79 141 Wn. App. 367, 387-88, 166 P.3d 786 (2007).
80 id
29
No. 70761-2-1/30
was able to testify that the MDMA in Tammam's blood was "sufficient to produce
impairment with respect to perception, cognition, and behavior."
Thus, these cases are not analogous to the present case.
MISCONDUCT
Hor argues that the trial court abused its discretion by denying her mistrial
motion based on the City's counsel's alleged misconduct during opening
statements. There was no abuse of discretion in denying the motion.
Under CR 59(a)(2), misconduct by the prevailing party can be grounds for
a new trial. To obtain a new trial, the misconduct must "materially affect[] the
substantial rights of the losing party."81 Additionally, the losing party must have
properly objected to the misconduct.82 The trial court should grant a new trial
only if "'nothing the trial court could have said or done would have remedied the
harm [caused by the misconduct].'"83
We review a trial court's denial of a motion for a new trial for abuse of
discretion.84
During opening statements, Hor's counsel stated:
But there is more than one cause of this crash. The fuel to
the fire was the police chasing Mr. Tammam. So we are going to
ask you to assess joint responsibility.^51
81 Teter v. Deck, 174 Wn.2d 207, 222, 274 P.3d 336 (2012).
82 Kuhn v. Schnall, 155 Wn. App. 560, 576-77, 228 P.3d 828 (2010).
83 jd (internal quotation marks omitted) (quoting A.C. ex rel. Cooper v.
Bellinqham School Dist, 125 Wn. App. 511, 522, 105 P.3d 400 (2004)).
84 Hickok-Kniqht v. Wal-Mart Stores, Inc., 170 Wn. App. 279, 324, 284 P.3d 749
(2012), review denied, 176 Wn.2d 1014 (2013).
85 Report of Proceedings Vol. 4 (June 6, 2013) at 30.
30
No. 70761-2-1/31
In response, the City's counsel stated:
There was a mention by Mr. Barcus of sharing responsibility
or allocating responsibility between the two of these. In order to
allocate responsibility by one percentage point, you have to find
and that is what this case is about, 100 percent negligence on the
part of the city.[86]
Hor did not object to counsel's statements when made. Days later, she
argued in her mistrial motion that she was entitled to relief based on these
statements by the City's counsel.
On appeal, she contends the statements of the City's counsel violated the
in limine order regarding "joint and several liability" and the City as a "deep
pocket" defendant. We disagree.
The in limine order provides, in part, for the exclusion of:
[E]vidence or argument about City's lnsurance/"Deep Pockets'VJoint and
Several Liability.1871
There simply was no mention of either insurance or "deep pockets" in
counsel's statement. So counsel did not violate these two terms of the in limine
order.
In ruling on the motion, the trial judge made several observations. First,
the court observed that counsel's reference to "shared" responsibility was likely
invited by opposing counsel's reference to "joint" responsibility. We agree.
Second, the judge observed that it was unlikely that the jury would
remember these passing references or know of their legal significance by the
time deliberations started. We again agree. In any event, we note that this
86 id at 47-48.
87 Clerk's Papers at 1956.
31
No. 70761-2-1/32
passing reference to "shared" responsibility is hardly the type of statement that
"materially affects" the substantial rights of Hor, as CR 59(a)(2) requires. This is
particularly true in view of the fact that the court properly instructed the jury with
respect to the law before its deliberations. And the jury is presumed to follow the
court's instructions.
Finally, the judge offered to add additional instructions to address the
point, provided its instructions to the jury were not adequate to address this
problem. There is no evidence in this record that Hor pursued this offer.
For these reasons, we conclude that the trial court did not abuse its
discretion by denying the mistrial motion. There was no error in this respect.
CROSS-APPEAL
The City characterizes its cross-appeal as conditional. The City states
that we need not address the issues on cross-appeal unless a new trial follows.
Because we affirm the judgment, we conclude that it is unnecessary to address
the cross-appeal.
We affirm the judgment on the jury verdict and the order denying the
motion for a new trial. We decline to address the issues on cross-appeal.
fentT.
WE CONCUR:
32