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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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Non-economic Damages - The Province of the Jury

Posted Monday, July 03, 2017 by Ed Harper

The jury is given the constitutional role to determine questions of fact, such as the amount of damages. (James v. Robeck, 79 Wn.2d 864, at 869, 490 P.2d 878 [1971]). The trial court can grant a remittitur or additur as part of their inherent power. (Additur – when value is added or increase in the damages award. Remittitur – when court reduces the damages award in a jury verdict.) “An appellate court will not disturb an award of damages made by the jury unless it is outside the range of substantial evidence in the record, shocks the conscience of the court, or appears to been arrived at as a result of passion or prejudice.” (Bingaman v. Grays Harbor, 103 Wn.2d 831, 690 P.2d 1230 [1985]), Appellate remittitur was part of the common law in 1889 when the Washington Constitution was ratified. Appellate courts also have the authority to reduce jury damages awards.

The case of Bunch v. King County, 155 Wn.2d 165, 116 P.3d 381 (2005) sheds light on the power of the jury in granting noneconomic damages. The Washington Supreme Court upheld the trial court’s decision not to grant the defendants remitted her (reduction of the jury verdict). This reversed the Court of Appeal decision to grant remittitur of the jury’s verdict.

In Bunch, the jury verdict held that Ralph Bunch was discriminated against by King County Department of Youth Services. The jury rendered a verdict of over $600,000 of which noneconomic damages were granted for $260,000. The trial court upheld this decision. However the Court of Appeal reduced the non-economic damages from $260,002 downward to $25,000. Bunch was a King County Corrections Officer and the jury found King County actions were racially motivated in a discriminatory manner. He was originally awarded $340,000 in lost future wages, $3500 in lost past wages, and $260,000 in noneconomic damages.

The appellate court, in reducing the noneconomic damage award incorrectly, determined that Bunch had not presented enough evidence to convince an “unprejudiced, thinking mind of his anguish.” The Washington Supreme Court stated “that is enough to support an award of emotional distress” by proving that he suffered from anguish and emotional distress. Bunch, at 181. “The jury’s award of noneconomic damages is not so excessive as to be flagrantly outrageous and extravagant, particularly in light of the strong presumption we accord to jury verdicts before passion or prejudice can justify reduction of a jury verdict, it must be of such manifest clarity as to make it unmistakable.” Bingaman, at 836. “As to the other factors from which the idea of passion and prejudice may be derived, sometimes there may occur during the trial, untoward incidents of such extreme and inflammatory nature that the court’s admonitions and instructions could not cure or neutralize them.” Robeck, at 871. “As explained above, the size of the verdict is within the bounds of the evidence presented, and there is no indication of anything untoward in the proceedings that justify setting the verdict aside based on passion or prejudice. In sum, the Court of Appeals is not justified to reduce the noneconomic damages from $260,000-$25,000…The jury’s award of noneconomic damages is within the range of the evidence presented, is not flagrantly outrageous and extravagant, nor was it motivated by passion and prejudice.” Bunch, at 183.

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Combining Pattern Instructions

Posted Monday, June 26, 2017 by Ed Harper

When submitting economic and noneconomic damage instructions in a personal injury case, the jury instruction can include multiple jury instructions compiled together making it easier for the court to articulate these instructions.

Washington Pattern Instruction 30.04 is one such instruction regarding noneconomic damages. This instruction states the following:

“In addition you [the jury] should consider the following noneconomic damages elements:1. The nature and extent of the injuries; and2. The disability experienced and with reasonable probability to be experienced in the future; and3. The loss of enjoyment of life experienced, and with reasonable probability to be experienced in the future; and4. The pain-and-suffering experienced, and with reasonable probability to be experienced, in the future.

The burden of proving damages rests upon the plaintiff. It is for you to determine, based upon the evidence, whether any particular element has been proved by a preponderance of the evidence. Your award must be based upon evidence and not upon speculation, guess, or conjecture.”

The law has not furnished us with any fixed standards by which to measure noneconomic damages. With reference to these matters you must be governed by your own judgment, by the evidence in the case, and by these instructions.

Recently, with Co-Counsel, we obtained a jury verdict well over $1.3 million. The case is Lawrence v. Trugreen, a case that went up on appeal and an unpublished opinion by Justice Leach on January 7, 2013 upheld this verdict. One of the issues in this case was the damage instruction for noneconomic damages.

Briefly, however, the facts were somewhat typical for a rear end motor vehicle collision injuring plaintiff, Rebecca Lawrence. The Plaintiff sustained serious neck and back injuries from the rear end automobile collision. The Defendant, Trugreen Inc., admitted liability for these injuries proximately caused by the collision and the case proceeded to trial on causation and damage issues only. On June 27, 2007, a Trugreen truck driven by its employee, rear-ended Rebecca Lawrence’s car. Multiple procedures were received by Ms. Lawrence including the implant of a spinal cord stimulator in her back.

Plaintiff Lawrence sued Trugreen and the driver. Before trial Trugreen admitted fault and went to trial on the issues of causation and damages. While Trugreen acknowledged that the collision could have caused Lawrence’s continuing neck pain, Trugreen maintained that it did not cause Lawrence’s lower back pain, which led to the spinal surgeries. One issues for the appellate court was the trial court’s instruction on the measure of damages. Trugreen claimed the court erred by “instructing the jury to consider the single quote nature and extent’ of the injuries as a separate line of damages on the verdict form…Trugreen claims the single ‘nature and extent’ clause instructed the jury to award Lawrence a recovery for the injury itself in addition to recovering for all of the elements of damages. We disagree.”

The appellate court determined that the trial court did not instruct the jury to find the “nature and extent” of Lawrence’s injuries as an itemized line of damages on the verdict form. “The jury instruction - regarding noneconomic damages - that the jury should consider the nature and extent of injuries as only one of the multiple elements of any noneconomic damages award, and the special verdict form provides only ‘line items’ for past economic damages and future noneconomic damages. This comports with Washington law, and we find no abuse of discretion in the trial court’s decision to give it.”

As shown in this case, listing out noneconomic elements in a jury instruction is often done.

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Pain and Suffering as Seperate

Posted Tuesday, June 20, 2017 by Ed Harper

Washington Pattern Jury Instruction 30.06 allows for pain and suffering as separate elements of damages. WPI 30.06 states: “The pain and suffering, both mental and physical any inconvenience, mental anguish, disability, or disability experienced and with reasonable probability to be experienced in the future.” In the case of Green v. Floe, 28 Wn.2d 620, the Washington Supreme Court in 1947 determined these are separate elements - mental suffering and physical pain.

The court stated as follows “physical pain and mental suffering are bracketed together as elements of damage in personal injury cases. The former is the immediate felt effect upon the nerves and brain of some lesion or injury to a part of the body. The latter is distressed when it is not felt as being directly connected with any bodily condition. Mental suffering is regarded by the courts as the usual accompaniment of physical pain, and the difficulty of distinguishing the two has been deemed the reason for allowing damages for mental suffering. A claim for bodily pain lets in mental suffering.” (Green, at 636 – 637).

The court went on further stating, “Mental pain and suffering in connection with the wrong which apart from such pain and suffering constitutes a cause of action is a proper element of damages where it is a natural and proximate consequence of the wrong.” (Green, at 637).

Here, the Plaintiff Green had a permanent disability to his knee. “The knee was broken in eight places. The leg bothers him continually, and especially in damp weather. It squeaks. As a result of a demonstration in the courtroom… the squeak in respondent’s knee was audible to the jury’s.… Additionally, there was testimony of Green’s physician to the effect that the kneecap was completely fractured; there were several fractures; that as a result Plaintiff Green has an unstable knee.

“It was alleged in the complaint that as a result of the injuries received, Green suffered a severe nervous and mental shock, and much pain and anguish, and that for a long time to come he will continue to suffer physically and mentally.

“In view of the above allegations and testimony in this case did the court error in instructing the jury that they might consider whether Green suffered mental and physical pain on account of the injury to his leg.

“The general rule is that in an action for physical injury the recoverable damages may include compensation for mental anguish or suffering which results so directly from that injury as to be the natural, legitimate, and proximate consequence thereof.” (Cites omitted).

A reason given for the rule is that the mind is a part of the body, and injury to the body includes the whole, and its effects are not separable. In such cases the mental suffering is merely an aggravation of damages when it naturally ensues from the act complained of. Mental suffering when connected with any bodily injury, is always to be considered in damages. (Green, at 636).

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Measure of Damages – Elements of Noneconomic Damages

Posted Tuesday, June 13, 2017 by Ed Harper

WPI 30.06 states, “The pain and suffering, both mental and physical [see RCW 4.56.250(1)(b)] experienced and with reasonable probability to be experienced in the future.”

RCW 4.56.250(1)(b) – this statute holds noneconomic damages are “subjective, nonmonetary losses, including but not limited to pain, suffering, inconvenience, mental anguish, disability or disfigurement incurred by the injured party, emotional distress, loss of society and companionship, loss of consortium, injury to reputation and humiliation, and destruction of parent – child relationship.”

The case of Bitzan v. Parisi, 88 Wn.2d 116, 550 P2d 775 (1977) is instructive on this issue. The Supreme Court in Washington determined this damage instruction must include all elements supported by the evidence. Failure to include an element of damage in a jury instruction is a reversible error when there is enough evidence to support it.

Here, Defendant Ernest Parisi rear-ended Plaintiff Thomas Bitzan’s car. The plaintiff recovered on a verdict for future and present damages. A motion at the trial court level overturned this verdict, which the appellate court upheld. At the Supreme Court, the court granted review and reversed the appellate court’s decision. This decision was based on the failure of the trial court to allow a damages instruction on future damages based solely on lay witness supportive testimony.

“The question of what evidence here is necessary to support an instruction on future disability, pain, suffering and loss of earnings requires an examination of the sufficiency of lay testimony for that purpose including testimony of subjective symptoms is contrasted with objective symptoms.… In this case there is, however, lay testimony generally to the effect of it bits and sustained pain, suffering, disability and loss of earnings from the time of the December 14, 1971 accident to the date of trial on July 23, 1973, a period of over 19 months. For reasons next stated, we hold the lay testimony, reviewed sufficient, alone, to support the instruction on future damages. There is no reason layman may not testify to their sensory perceptions, the weight of the testimony to be determined by the trier of fact. Physical movement by the injured person can be seen and described by a layman with no prior medical training or skill.” Bitzan at pgs. 119 – 121.

Regarding future damages, “Proof of pain and suffering as late as the time of trial even though subjective and character will warrant an instruction on future damages. The same is true of proof of disability and lost earnings. The continued existence of these elements of damage at the time of trial permits a reasonable inference that future damage will be sustained. Expert medical testimony to this effect may also be given, but it is not essential. Such evidence if unfavorable is admissible however to limit recovery.” Bitzan at 122, (cites omitted).

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