Ginger M. Smith v. Michel Lundy, Et ux

FILED
JUNE 26,2014
I n the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
GINGER M. SMITH, a single person, 	) 	No. 31617-3-III
)
Appellant, 	)
) 	UNPUBLISHED OPINION
v. 	)
)
MICHAEL LUNDY and JANE DOE 	)
LUNDY, a marital community, 	)
)
Respondents. 	)
KORSMO, J. - 	Plaintiff Ginger Smith won a motion-in-limine, but it did not have
the desired effect of keeping the defendant's expert witnesses off the stand. Finding no
abuse of discretion in the trial court's rulings, we affirm.
FACTS
In February of2008, Michael Lundy struck a vehicle being driven by Ms. Smith.
The force of the collision caused Ms. Smith's vehicle to roll over. She suffered
numerous physical injuries and possibly a closed head injury.

No. 31617-3-111
Smith v. Lundy
As time passed, Ms. Smith's physical injuries largely resolved, but she appeared to
have sustained a permanent neuropsychological impairment. Prior to the collision, Ms.
Smith worked as a certified nursing assistant (CNA) and also attended school with the
hope of becoming a registered nurse. After the collision, she never felt well enough to
return to work or school.
Believing herself permanently disabled, Ms. Smith filed for disability benefits. In
early 2009, the Washington State Department of Social and Human Services (DSHS)
referred Ms. Smith for a neuropsychological exam with Debra Brown, Ph.D., to
determine the nature and extent of her claimed mental disability. Dr. Brown found that
Ms. Smith had several mild to moderate forms of dysfunction in different places in the
brain, no indication of malingering, cognitive disorder not otherwise specified, and post-
traumatic stress disorder. Ms. Smith obtained disability benefits based on these findings.
In September of2010, Ms. Smith filed her complaint against Mr. Lundy. Ms.
Smith claimed that the collision caused her debilitating mental impairment. 	She claimed
that this impairment permanently prevents her from returning to work as a CNA and from
being able to complete nursing school.
Mr. Lundy retained neuropsychologist Ronald Klein, Ph.D. 	In 2011, Dr. Klein
performed a CR 35 mental examination on Ms. Smith. Based on his testing and
examination, Dr. Klein believed Ms. Smith to be malingering her mental impairment. He
also found that Ms. Smith's self-described symptoms did not match the recognized
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No.31617-3-III
Smith v. Lundy
clinical patterns of someone with her claimed mental injuries. He found a lack of
causation between Ms. Smith's claimed anxiety disorder and the collision with Mr.
Lundy. He also believed that Ms. Smith's pre-injury educational and vocational history
suggested that Ms. Smith was never likely to have completed college and become a
registered nurse.
To support her allegations, Ms. Smith retained Dr. Brown-the same
neuropsychologist who examined Ms. Smith on behalf of DSHS. Dr. Brown conducted
additional testing on Ms. Smith and found the results to be consistent with her original
tests in 2009.
Dr. Klein reviewed Dr. Brown's updated findings. 	In a follow-up report, Dr.
Klein argued that Dr. Brown misinterpreted the data from her testing on Ms. Smith.
Instead of showing a mental impairment, Dr. Klein believed that the results from Dr.
Brown's testing data showed a person with average mental capacity.
Ms. Smith filed a motion to exclude Dr. Klein's opinion of malingering. Ms.
Smith supported her motion with a declaration from her rebuttal expert,
neuropsychologist Kristoffer Rhoads, Ph.D. Dr. Rhoads explained that Dr. Klein's test
results did not fall within the range of malingering. He also explained that Dr. Klein's
interpretation of the testing data and resulting opinion regarding malingering substantially
departed from the generally accepted standards applied by the neuropsychological
community. After a hearing, the court excluded Dr. Klein's malingering opinion.
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No.31617-3-III
Smith v. Lundy
Ms. Smith then brought motions to completely exclude Dr. Klein, and Mr.
Lundy's two damages experts~Erick West and Deborah Lapoint - on the basis that all of
their testimony was predicated entirely on the excluded malingering opinion. The court
denied the motions because Dr. Klein had other helpful opinions to present, and because
the exclusion of the malingering diagnosis did not render the damages experts' opinions
unreliable.
At trial in December of 20 12, Ms. Smith's counsel conducted a voir dire
examination of Dr. Klein. Counsel asked Dr. Klein if he had any reason, other than
malingering, for rebutting the objective testing that showed Ms. Smith had suffered a
closed head injury. Dr. Klein responded that his finding of malingering was the only way
he could rebut the testing, but also testified that he still maintained additional opinions
that were not dependent on a malingering opinion. Ms. Smith renewed her motion to
exclude Dr. Klein completely. The court denied the motion, noting that "there's quite a
bit of information and material on which a skillful and searching cross-examination of
Dr. Klein can be conducted even without Dr. Klein's ability to testifY on the subject of
malingering." Report of Proceedings at 411.
Dr. Klein then testified in front of the jury on direct examination that Ms. Smith
did not suffer a closed head injury and that she did not have any psychological
impediment that would prevent her from returning to work. Dr. Klein testified that the
long-delayed manifestation of Ms. Smith's neuropsychological symptoms weighed
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No. 31617-3-III
Smith v. Lundy
against there being a causal connection to the collision. He also testified that Ms. Smith's
self-reported symptoms did not match known manifestation patterns of other brain injury
patients. He further testified that the tests done by Dr. Brown were all within normal
functioning ranges and that Dr. Brown misinterpreted the data.
At the conclusion of the trial, Ms. Smith asked the jury to award past economic
and non-economic damages as well as future economic and non-economic damages due
to Ms. Smith's permanent mental impairment. The jury returned a special verdict
awarding past economic and non-economic damages, but refused to award any future
damages. 	Ms. Smith then appealed to this court.
ANALYSIS
Ms. Smith primarily challenges the trial court's refusal to exclude Dr. Klein under
ER 702. This court reviews evidentiary rulings for abuse of discretion. State v. Guloy,
104 Wn.2d 412, 429-30,705 P.2d 1182 (1985). A court abuses its discretion when it
exercises discretion on untenable grounds or for untenable reasons. State ex rei. Carroll
v. Junker, 79 Wn.2d 12,26,482 P.2d 775 (1971). 	"If the trial court's ruling is based on
an erroneous view of the law or involves application of an incorrect legal analysis it
necessarily abuses its discretion." Dix v. ICT Group, Inc., 160 Wn.2d 826, 833, 161 P.3d
1016 (2007).
To admit expert testimony, the proponent must show that the testimony would be
helpful to the jury. ER 702. Expert testimony is not helpful if the judge determines that
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No. 31617-3-111
Smith v. Lundy
the testimony is based on speculation or is unreliable. Miller v. Likins, 109 Wn. App.
140, 148,34 P.3d 835 (2001); Lakey v. Puget Sound Energy, Inc., 176 Wn.2d 909, 918,
920,296 P.3d 860 (2013). A court also may not admit expert testimony if the court
determines that the facts or data relied on by the expert are not of a type reasonably relied
upon by experts in the particular field. Lakey, 176 Wn.2d at 918.
Ms. Smith argues that Dr. Klein should have been excluded as unhelpful because
he did not have any admissible opinions to offer to the jury. 	She directs the court to her
voir dire examination of Dr. Klein where he testified that his only basis for discounting
Ms. Smith's impaired test results was to opine that she was malingering.
However, the fact that Dr. Klein could not tell the jury the full reason why he did
not trust the test results did not mean that he did not have other relevant testimony to
provide. Dr. Klein had other admissible opinions that did not rely on the excluded
diagnosis of malingering, including his partial disagreement with Ms. Smith's test results
because he believed that Dr. Brown misinterpreted the testing data. He testified that Ms.
Smith's pre-injury educational and vocational history made it doubtful that she would
have completed nursing school with or without having suffered a closed head injury. He
believed that Ms. Smith's clinical presentation did not match the recognized clinical
patterns of someone who had suffered Ms. Smith's claimed mental impairment.
Although these opinions fed into and supported Dr. Klein's ultimate opinion that Ms.
Smith was malingering, the fact that Dr. Klein could not support a full opinion of
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No. 31617-3-II1
Smith v. Lundy
malingering did not make these component opinions any less relevant and helpful to
determining the nature and extent of Ms. Smith's injuries. Accordingly, the trial court
had tenable grounds for denying the motion.
Ms. Smith also argues that the trial court abused its discretion by delegating its
gatekeeping function to the jury. While the court under ER 702 must make a threshold
determination of reasonability, the trier of fact must also make a determination of
reasonability. Reviewing in full the record on the motion, rather than focusing on the
limited excerpt of the ruling relied on by counsel, we conclude that the court did not
delegate its gatekeeping function to the jury. After reviewing the record, listening to Dr.
Klein testify, and receiving argument from counsel, the court found that Dr. Klein had
plenty of opinions other than malingering. 	Because there were no challenges to the facts
or data relied on by Dr. Klein to reach these other opinions, the court was not required to
delve further before permitting him to testify.
Ms. Smith next challenges the trial court's refusal to exclude Mr. Lundy's two
damages experts whose opinions were based on Dr. Klein's reports. Because the court
properly permitted Dr. Klein to offer his opinions to the jury, the court did not err by also
permitting Mr. Lundy's damages experts to testify based on those opinions.
Finally, Mr. Lundy requests his attorney fees on appeal for having to defend
against what he believes was a frivolous appeal. 	While Ms. Smith did not ultimately
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I
I!
No. 31617-3-II1
Smith v. Lundy 	IIprevail in her appeal, we do not believe that this appeal is so lacking in merit as to 	~
warrant an award of attorney fees under RAP 18.9.
IAffinned. I
A majority of the panel has detennined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
~_ 	JJ-Korsmo, J. J (Y
WE CONCUR:
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