The Harper Law Blog

The Harper Law Blog offers news, announcements, thoughts and articles on life, law and our practice areas of emphasis.

Reliability of Evidence - Evidence Rule 403

Posted Monday, December 11, 2017 by Ed Harper

Evidence Rule 403 stands for the proposition that evidence which is more prejudicial than probative should be excluded from a jury’s purview. A recent unpublished decision, Gilmore v. Jefferson County Public Transportation, (Jefferson Transit) rendered by Division 2 of the Court of Appeals of Washington on April 25, 2017, concluded that a trial court committed reversible error when the court granted the exclusion of the expert witness under Evidence Rule 403. The case has now been brought up to the Supreme Court of Washington.

Defendant Jefferson Transit had proposed the testimony of Allen Tencer, PhD, a biomechanical engineer, that Mr. Gilmore could not have been injured in this collision. Or more specifically, Tencer calculated the forces which occurred to be below the speed necessary for one to be injured. Jefferson Transit did not submit Tencer’s opinion as a medical opinion but merely this proved the collision did not rise to the level of severity where one could be injured.

Dr. Tencer has testified numerous times in “low crash - no cash” injury claims. While Tencer has significant education and experience in biomechanics relative to injury prevention, the trial court precluded the admission of his testimony because it was “intended to create an inference with some aura of authority” and the court felt this evidence was not reasonable or justified.

Tencer’s opinion, according to the trial court, would be prejudicial to plaintiff Gilmore not out-weighed by the probative value of the evidence. Dr. Tencer, by looking at photographs, and making certain assumptions, almost always concludes that the forces experienced in a motor vehicle collision were not sufficient to overcome the threshold of injury. Additionally, as well as providing the defense testimony with an aura of authority, the trial court concluded that Tencer’s opinion would be confusing and misleading to the jury.

Plaintiff Gilmore pointed out to the court there are deficiencies in Tencer’s testing methods. Further, according to Plaintiff Gilmore, Tencer provided speculative testimony on the speed of the defendant’s bus, the damage done to the vehicles, and the plaintiff’s height and weight. In sum, Plaintiff Gilmore contested Tencer’s opinions and his extrapolations from mere averages, and from crash tests different than the situation in each particular case. Therefore, Dr. Tencer’s opinion should not be presented to the jury as it is prejudicial and unreliable under ER 403. It will be interesting to see how the Supreme Court of Washington Rules on this case.

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Loss of Earning Capacity - What can you recover if you cannot work up to your capabilities?

Posted Monday, November 27, 2017 by Ed Harper

Washington Pattern instruction 30.08 stands for the proposition that one’s loss of earning capacity is the inability to earn money. This is the permanent diminution or decrease in the ability to work. It may only entail an increasing difficulty with completing the tasks which comprise your employment.

This is separate from “lost earnings”. Loss of earning capacity focuses on the injured person’s diminished ability to earn money because of his or her injuries. Bartlett v. Hantover, 9 Wn.App. 614, 619 – 620, 513 P. 2d 844 (1973), was affirmed on lost earning capacity, and reversed in part on other grounds by the Supreme Court on review, 84 Wn.2d 426, 520 P.2d 1217 (1974).

In Murray v. Mossman, 52 Wn.2d 885 (1958) the injured party was a private secretary who testified that after the accident she experienced a loss of sensation in her arm and hand and that her ability to take shorthand and to type, indicated her work was affected. She also testified that she often needed to retype her work and was not as efficient as she had been prior to the accident. A co-worker confirmed this testimony. The Washington Supreme Court held this testimony by the plaintiff and by her coworker warranted inclusion of an impairment of earning capacity instruction to the jury although the plaintiff testified that she had lost no wages because of the accident. (Id. at 890)

In Bartlett, the plaintiff was working as a manager of a motel, when he was injured severely when shot by intruders. The injured plaintiff was shot in the head and shoulder and somehow survived. The court stated, “In order to instruct on lost earning capacity, the evidence must show with reasonable certainty that the injured party has suffered an impairment in his ability to make a living. (See McCormick, Damages, Sec. 86, 1935) In Bartlett, the court continues by stating the showing that must be made is that the injury suffered by the plaintiff is an injury that, in fact has diminished the ability of the plaintiff to earn money. (Citing Murray v. Mossman, at 889)

“The requirement of the law leaves the fixing of the amount of loss to the discernment of the jury. Thus, a child of 3 and an unemployed man of 71 can suffer a loss of earning capacity.” (Sherman v. Seattle, 57 Wn.2d 233, 350 P.2d 316, 1960; Riddell v. Red Lion, 124 Wn. 146, 213 P. 487, 1923) “Evidence of physical impairment must be presented and from that evidence of injury to the body and/or mind of the plaintiff, the jury must assess the amount that will compensate for his lessened money-making faculties and reduced income potentialities.” (Kelley v. Great Northern Railway, 59 Wn.2d 894 370 P.2d 528, (1962); Johnson v. Howard, 45 Wn.2d 433 230 P.2d 736, (1954); Handley v. Anacortes Ice Company, 5 Wn.2d 384 100, P.2d 505, (1940); Sheppard v. Smith, 198 wash. 395, 80 8P. 2d 601, (1939); Hirst v. Standard Oil Company of California, 145 Wash. 597, 260 1P. 405, (1927); annotation, 18 A.L.R. 3d 88, (1968). “Evidence of the bodily impairment suffered from the two gunshot wounds amply supported lost earning capacity as an element of damage.” (Bartlett at 9 Wn.App. 619 – 620)

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Giving Back: Military & First-Responders

Posted Monday, November 06, 2017 by Ed Harper

As John F. Kennedy once said, “As we express our gratitude, we must never forget that the highest appreciation is not to utter words, but to live by them.”

The Harper family has a long-standing history of military members and first-responders. I am the proud grandson of a Marine Corp World War I veteran, son of a retired naval officer, brother-in-law to a firefighter and paramedic captain, and father-in-law to an active duty Naval Aviator. There are countless other friends and colleagues I know who have served our country with the utmost integrity and honor.

As we honor those who have served in our military, I thought of how I could give back to our country’s service members and first responders. In partnership with Spirit 105.3 and fellow attorneys, Harper Law wants to give veterans, active-duty and retired military, and first-responders a free legal consultation to assist you in your time of need. This can be of any legal nature; I am happy to answer questions you may have. If I cannot assist you with your case or questions, I will refer you to a trustworthy attorney who can help you.

We honor you and thank you for your service. Give me a call at 425-284-3333 or email me info@edharperlaw.com.

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Product Liability - Design Defect

Posted Monday, October 30, 2017 by Ed Harper

Washington’s Product Liability Act – RCW 7.72.030 (a): “A product is not reasonably safe as designed if, at the time of manufacture, the likelihood that the product would cause the claimant’s harm or similar harms, and the seriousness of those harms, outweighed the burden on the manufacturer to design a product that would’ve prevented those harms and the adverse effect that on the alternative design that was practical and feasible would have on the usefulness of the product…

(3) In determining whether a product was not reasonably safe under this section the trier of fact shall consider whether the product was unsafe to an extent beyond that which would be contemplated by the ordinary consumer. RCW 7.72.030(1) (a)(3) there are two tests for determining whether a product is defective:

1 – the Risk Utility Test

2 – the Consumer Expectation Test.”

The risk utility test requires a showing that the likelihood and seriousness of a harm outweigh the burden on the manufacturer to design a product that would’ve prevented that harm and would not have impaired the products usefulness. The consumer expectation test requires a showing that the product is more dangerous than the ordinary consumer would expect. Higgins v. Intex Rec. Corp. et al., 123 Wn.App 821, 90 9 P.3rd 421 (2004).

In* Higgins v. Intex Rec. Corp*, which was a suit for personal injuries based on product liability, the plaintiffs submitted the question of a snow tube’s safety to the jury. The plaintiffs submitted that the snow tube went too fast, had no means for the rider to control it, and then turned the rider into a fixed backward position.

The jury determined that the tube was not reasonably safe as designed and the case was upheld on appeal utilizing the two tests to determine whether this product was unsafe. Using the risk utility test and facts supporting this view of defectiveness, “speeding backward at 30 mph down a crowded snow covered hill is not safe,… The user cannot watch for others in his or her path. And bystanders cannot always move fast enough to avoid them. There was ample evidence that an alternative design would permit the user to see what is in his or her path and avoid collisions by either bailing out or by using minimal steering.”

The court also reviewed the consumer expectation test “comparing it to another device called a Snow-Boggan which provides a fast ride but not a blind high-speed ride. The jury could then find that a reasonable consumer would expect that the snow sliding product would not put him or her in a backward, high-speed slide.” (Higgins at 830).

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U. S. Vaccine Court and Fund Set Up for Injured Persons

Posted Monday, September 18, 2017 by Ed Harper

Recently the United States Federal Government has set up a vaccine court and fund to assist with the claims management of issues arising from vaccines to reduce the number of lawsuits against drug companies. The US Court of Federal Claims, commonly called the Vaccine Court, was established to help with resolving claims outside the traditional United States tort system. The program was established in 1986, after high-profile lawsuits were made against drug companies. Several children had serious, adverse reactions – including seizures and brain damage – that appeared to be linked to the diphtheria, pertussis, tetanus vaccine or DPT vaccine (this version was later replaced by the DTaP Vaccine). The parents sued the makers of the DTP vaccine and, in at least 2 cases, were awarded millions of dollars.

The National Childhood Vaccine Injury Act of 1986 created a unique mechanism for compensating persons injured by certain pharmaceutical products. The act established the National Vaccine Injury Compensation Program as an alternative to traditional product liability and medical malpractice litigation for persons injured by vaccinations. These include their receipt of one or more standard childhood vaccines. According to the courts website over the last 21 years, the fund has provided compensation to 2319 people, paid via this fund, and more than $1.8 billion combined has been paid out since the program’s inception in 1988.

To qualify, eligible claimants can recover compensation for vaccine injury – related medical and rehabilitative expenses, for pain-and-suffering, and lost earnings. Of significance, claimants may also recover “reasonable” attorney’s fees and costs, and the program also permits attorney fee awards to be made when a claim is otherwise denied, as long as the claim had a reasonable basis and was pursued in good faith.

Vaccines covered under the program include those that protect against diphtheria, tetanus, pertussis (whooping cough), measles, mumps, rubella (German measles), polio, hepatitis A, hepatitis B, varicella (chickenpox), Hemophilus influenzae type b, rotavirus, pneumococcal conjugate, trivalent influenza (seasonal flu), meningococcal and human papillomavirus.

The benefit of this program is that patients need not prove fault. The typical requirement in a tort case is to prove the person suffering injury or death must prove a medical causation or linkage to the event. However, in a vaccination case, this causal relationship has been lessened to allow claimants to merely determine whether it could be reasonably presumed that the injuries suffered could be related to the vaccine absent a more plausible explanation. Therefore, these claims can be brought with sufficient evidence of the vaccination. And coupled with information such as an expert opinion providing evidence for a reasonable presumption, these claims can be highly beneficial for an injured person suffering from the after-effects of a vaccination gone awry.

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