292 P.3d 764
Wash. Ct. App.2012Background
- Stedman and Cooper's collision occurred in January 2006; arbitration awarded Stedman $23,300 total damages.
- Cooper sought trial de novo; trial court later excluded defense biomechanical expert Dr. Allan Tencer.
- Trial evidence described the mechanism of injury as a jarring side impact with various medical and chiropractic opinions.
- The jury found no contributory negligence by Stedman and awarded $22,000; Stedman sought attorney fees under MAR 7.3.
- Supreme Court Niccum v. Enquist (2012) later held it improper to subtract costs from an offer of compromise; the issue affected the attorney-fee award on trial de novo.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Tencer's biomechanical testimony | Exclusion was appropriate; testimony would mislead jury about injury likelihood. | Testimony offered relevant biomechanical insight useful to jurors. | Exclusion not an abuse of discretion; testimony Logically irrelevant to injury extent. |
| Whether Cooper improved her position on trial de novo | Costs were properly factored; offer of compromise should be compared to arbitration award plus costs. | Niccum retroactively prohibits subtracting costs from the offer; she improved position. | Niccum applies; Cooper improved position; attorney-fee award reversed. |
| Proper calculation and impact of costs on the offer of compromise | Costs were properly considered under RCW 7.06.050 prior to Niccum change. | Niccum requires not deducting costs from the offer of compromise. | Niccum retroactively controls; costs cannot be subtracted; affects fee outcome. |
Key Cases Cited
- State v. Yates, 161 Wn.2d 714 (2007) (abuse of discretion standard for expert admissibility)
- Anderson v. Akzo Nobel Coatings, Inc., 172 Wn.2d 593 (2011) (ER 702 relevance and helpfulness standard for experts)
- Ma’ele v. Arrington, 111 Wn. App. 557 (2002) (admissibility of biomechanical testimony in damages contexts)
- Schultz v. Wells, 13 P.3d 846 (Colo. App. 2000) (limits on mechanical-force testimony in car accidents)
- Tittsworth v. Robinson, 252 Va. 151 (1996) (unreliable threshold-for-injury biomechanical testimony)
- Niccum v. Enquist, 175 Wn.2d 441 (2012) (cannot subtract costs from an offer of compromise; retroactive application)
- Clemente v. Blumenberg, 183 Misc. 2d 923 (1999) (sample size and relevance concerns in biomechanical injury testimony)
- Schwartz v. Wells, 13 P.3d 846 (Colo. App. 2000) (see Schultz for discussion of admissibility factors)