Michael Gilmore v. Jefferson County Public Transportation
48018-2
| Wash. Ct. App. | Apr 25, 2017Background
- On March 31, 2008, Jefferson Transit’s bus rear-ended or bumped a stopped van driven by Michael Gilmore; Jefferson Transit admitted liability but disputed causation and injury extent.
- Gilmore complained of neck, back, hip pain and headaches after the collision; MRIs showed disc herniation and he later had neck surgery (2015). He had preexisting conditions and a 60% VA disability rating predating the crash.
- Gilmore received Department of Labor & Industries (L&I) time-loss payments and a $40,000 lump-sum permanent partial disability award after the accident; he also underwent unrelated carpal tunnel surgery in 2008.
- At trial the jury awarded Gilmore $1.2 million in general (non-economic) damages; Jefferson Transit moved for a new trial arguing evidentiary errors and prejudicial advocacy.
- On appeal the Court of Appeals reversed and remanded, holding the trial court erred by excluding defendant’s biomechanics expert (Dr. Tencer), and addressing likely recurring issues: admissibility/scope of plaintiff’s chiropractor (Dr. Masci), admission of L&I payments, and plaintiff counsel’s inflammatory closing remarks.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exclusion of biomechanics expert (Tencer) | Tencer would confuse jury and relied on facts not in evidence; testimony unnecessary and misleading | Tencer is qualified; his force/impact analysis uses accepted engineering principles and would aid the jury | Reversed: exclusion was erroneous. Expert met ER 702/703 criteria; trial court applied wrong legal standard by disallowing reliance on facts not in evidence and abused discretion. |
| Scope/admissibility of plaintiff’s chiropractor (Masci) | Masci exceeded chiropractic scope by opining on neurological/surgical matters and relied on plaintiff’s inaccurate history | Masci performed exam and records review; chiropractors may explain neuro findings and make referrals; testimony was within scope | Affirmed: Masci’s testimony was within chiropractic expertise and properly admitted. |
| Admission of L&I payments (collateral source) | L&I payments are collateral and should be excluded; plaintiff didn’t seek reimbursement so evidence is prejudicial | Payments rebut plaintiff’s testimony about financial hardship and can be admitted if plaintiff "opens the door" | Reversed in part: court erred by excluding L&I evidence after plaintiff elicited testimony about financial hardship; plaintiff opened the door so L&I evidence could be admissible. |
| Improper closing arguments / motion for new trial | Closing was aggressive but not so prejudicial as to warrant new trial; defendant waived by not objecting | Plaintiff’s counsel made inflammatory appeals ("fight the government," fraud accusations) that were flagrant and incurable, causing prejudice and excessive verdict | Reversed: counsel’s repeated inflammatory, anti-government and fraud accusations were flagrant misconduct that likely prejudiced the verdict; new trial warranted on this basis in context of other errors. |
Key Cases Cited
- Johnston-Forbes v. Matsunaga, 181 Wn.2d 346 (Wash. 2014) (expert admissibility and helpfulness to trier of fact under ER 702)
- Burnet v. Spokane Ambulance, 131 Wn.2d 484 (Wash. 1997) (factors for discovery-sanction analysis)
- Cox v. Spangler, 141 Wn.2d 431 (Wash. 2000) (collateral source rule and its purpose)
- Johnson v. Weyerhaeuser Co., 134 Wn.2d 795 (Wash. 1998) (party may waive collateral-source protections by opening the door to such evidence)