Expert Testimoney - Washington Pattern Instruction 2.10

Posted Monday, July 17, 2017 by Ed Harper

Washington Pattern Instruction (WPI) 2.10 states the following: “The witness who has special training, education, or experience may be allowed to express an opinion in addition to giving testimony as to facts.

You are not, however, required to accept his or her opinion. To determine the credibility and weight to be given to this type of evidence, you may consider, among other things, the education, training, experience, knowledge, and ability of the witness. You may also consider the reasons given for the opinion and the sources of his or her information, as well as considering the factors already given to you for evaluating the testimony of any other witnesses.”

The case of Gerberg v Crosby, 52 Wn.2d 792, 329 P.2d 184 (1958), is informative on this pattern instruction. “In the case at bar the jury was instructed generally that they were the sole and exclusive judges of the credibility of the several witnesses and the weight to be attached to the testimony of each. It perhaps would’ve been wise to specifically call the jury’s attention to the fact that this instruction also applied to expert witnesses.”

In Gerberg, which was an action arising out of the collision between a automobile and a motorcycle, there was a dispute as to fault as the Defendant Crosby had allegedly turned left in front of plaintiff Gerber without yielding the right of way. A city police officer, Wayne Hendren could give his opinion on the point of impact between the car and the motorcycle. Hendon arrived at the scene after the accident had occurred. He based his opinion on the point of impact and on the physical facts he had observed at the scene of the accident.… “This Court has long recognized that a qualified expert is competent to express an opinion on a proper subject even though he expresses an opinion on the ultimate fact to be found by the trier of fact.” Gerber, at 796.

Thus, it was not error for the trial court to allow Officer Hendren to testify on the point of impact and its location as the ultimate fact(s) .

“Upon review of whether to give this pattern jury instruction or not, the court will use a ‘sound discretion’ standard upon review. This provides much latitude to the trial court to determine the necessity and importance of providing this instruction to the jury.

“The jury shall also determine what weight should be given expert – opinion testimony. This ultimate fact question is within the province of the jury but also may be the proper subject for opinion testimony from a qualified expert.” Gerberg, supra.

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