Opinion
No. 52185-3-I.
Filed: March 29, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Island County. Docket No. 02-2-00326-0. Judgment or order under review. Date filed: 03/17/2003. Judge signing: Hon. Vickie I Churchill.
Counsel for Appellant(s), Mark J. Dynan, Attorney at Law, 2511 S Hood St, Tacoma, WA 98402-1223.
Counsel for Defendant(s), Norman Forrest #934499 (Appearing Pro Se), Clallam Bay Correction Center, 1830 Eagle Crest Way, Clallam Bay, WA 98326.
Counsel for Respondent(s), Guy M. Bogdanovich, Law Lyman Daniel Kamerrer et al, PO Box 11880, Olympia, WA 98508-1880.
Brian and Barbara Seaforth and Shirley and Marco Foster appeal the trial court's order striking certain exhibits and dismissing their case on summary judgment. Specifically, they contend the court erred by striking documents based on improper expert testimony, improper authentication, and hearsay. But because the experts improperly expressed opinions based on speculation and copies of official records were not certified by the documents' legal custodians, we affirm the order striking documents. And there is no material issue of fact about whether Deputy Legasse's pursuit caused the accident, so the trial court properly granted summary judgment.
FACTS
In August 1999, police spotted Norman Forrest driving a stolen vehicle on a state road in Oak Harbor, Washington. Island County Sheriff's Department Deputy Brian Legasse followed Forrest into a driveway where he identified himself to Forrest, displayed his badge and gun, and ordered Forrest to surrender. Forrest then fled the driveway in the stolen car, and Legasse followed. Both Forrest and Legasse drove at high speeds. Less than one mile down the road, Forrest lost control and struck Brian Seaforth and Shirley Foster, Department of Transportation employees who were performing construction work off the roadway. Both Seaforth and Foster sustained severe injuries. Forrest was arrested at the scene and later convicted. During his trial, Forrest testified that he drove quickly because he was startled by Legasse in the driveway. When asked if he knew whether Legasse was following him, he testified, 'I didn't look to see, as it wouldn't have made any difference.'
Later in his testimony, Forrest again stated that he was not looking to see whether anyone was following him after he left the driveway.
Seaforth and his wife (collectively Seaforth) and Foster and her husband (collectively Foster) sued Forrest and Legasse for negligence and loss of consortium. Specifically, Seaforth and Foster argue that Legasse negligently pursued Forrest by exceeding safe and reasonable speeds in violation of RCW 46.61.035. The trial court entered a default judgment against Forrest for approximately $3,000,000. Legasse moved for summary judgment, arguing that there was no evidence that he proximately caused the collision, and he moved to strike declarations submitted by Seaforth and Foster. The trial court granted both motions and dismissed the case.
RCW 46.61.035 requires drivers of authorized emergency vehicles to drive with due regard for the safety of others when responding to an emergency call or when in the pursuit of one who has violated the law.
DISCUSSION I. Legasse's Motion to Strike Exhibits
Seaforth and Foster argue that the trial court erred by striking several exhibits. Although we generally review a trial court's decision to exclude evidence for abuse of discretion, we review de novo a trial court's evidentiary rulings made for summary judgment.
State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998) (citing State v. Pirtle, 127 Wn.2d 628, 648, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026 (1996); State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995); State v. Swan, 114 Wn.2d 613, 658, 790 P.2d 610 (1990), cert. denied, 498 U.S. 1046 (1991)).
Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998) ('The de novo standard of review is used by an appellate court when reviewing all trial court rulings made in conjunction with a summary judgment motion.'). See also, Seybold v. Neu, 105 Wn. App. 666, 678, 19 P.3d 1068 (2001).
A. Declarations of Charles Lewis and Timothy Perry
Seaforth and Foster first challenge the court's decision to strike an expert witness declaration because the witness lacked expert qualifications. Evidence Rule (ER) 702 states that '[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.' Practical experience is sufficient to qualify a witness as an expert, and academic credentials alone may also be sufficient. The admissibility of expert testimony is within the trial court's discretion.
State v. McPherson, 111 Wn. App. 747, 762, 46 P.3d 284 (2002) (citing State v. Ortiz, 119 Wn.2d 294, 310, 831 P.2d 1060 (1992)).
State v. Flett, 40 Wn. App. 277, 284, 699 P.2d 774 (1985) (citing Harris v. Robert C. Groth, M.D., Inc., P.S., 99 Wn.2d 438, 449, 663 P.2d 113 (1983); State v. Brooks, 16 Wn. App. 535, 539-40, 557 P.2d 362 (1976), review denied, 88 Wn.2d 1012 (1977)).
State v. Kalakosky, 121 Wn.2d 525, 541, 852 P.2d 1064 (1993) (citing State v. Cauthron, 120 Wn.2d 879, 890, 846 P.2d 502 (1993); Swan, 114 Wn.2d at 655).
Charles Lewis is a qualified expert witness in the field of traffic collision reconstruction. He was a sergeant with the Alaska State Troopers and a qualified expert witness in police procedures, use of force, and police pursuit policies in Alaska. Lewis investigated the accident in this case by viewing the accident site and reviewing the Washington State Patrol's investigation, all witness statements, Incident Review Board testimony, and Island County Sheriff's Office Policies on Pursuit Driving. In his declaration, Lewis opined that Legasse 'negligently executed pursuit driving practices' and that based on the roadway's contour and the speeds and distances involved, 'it is probable that [Forrest] saw Detective Legasse in high-speed pursuit.' Based on that probability, Lewis concluded that Seaforth's and Foster's injuries were a 'direct and proximate result' of Legasse's negligent pursuit driving.
The trial court struck this declaration, stating that Lewis is a qualified expert in accident reconstruction but not in vehicular pursuits. But a witness' training in a related field may be sufficient to qualify him as an expert. In State v. Brooks, the trial court allowed a witness to testify as a ballistics expert even though his primary field of expertise was serology and tool-marking comparisons. We found no error since the witness was trained in ballistics and had performed considerable research and study in that area. Here, Lewis qualifies as an accident reconstruction expert in Washington and as a vehicle pursuit expert in Alaska. This is sufficient to admit his expert testimony in the present case.
Flett, 40 Wn. App. at 284-85 (citing Harris, 99 Wn.2d at 449; Brooks, 16 Wn. App. at 539-40). See also Hall v. Sacred Heart Med. Ctr., 100 Wn. App. 53, 58-60, 995 P.2d 621, review denied, 141 Wn.2d 1022 (2000) (an intensive care physician could testify as an expert about an intensive care nurse's standard of care because he had sufficient medical training and nursing supervisory experience).
Brooks, 16 Wn. App. at 539-40.
Id. at 540.
The trial court also excluded Lewis' declaration because he expressed an opinion about proximate cause, the ultimate issue before the court. But ER 704 states that an expert's opinion testimony is not objectionable simply because 'it embraces an ultimate issue to be decided by the trier of fact.' An expert may not testify to legal conclusions, but proximate cause is generally a question of fact and experts frequently opine about causation. The fact that Lewis opined that Legasse caused the injuries is an insufficient reason to exclude the testimony.
See also State v. Christopher, 114 Wn. App. 858, 862, 60 P.3d 677, review denied, 149 Wn.2d 1034 (2003) (citing State v. Baird, 83 Wn. App. 477, 485, 922 P.2d 157 (1996), review denied, 131 Wn.2d 1012 (1997)).
State v. Olmedo, 112 Wn. App. 525, 532, 49 P.3d 960 (2002), review denied, 148 Wn.2d 1019 (2003) (citing Hyatt v. Sellen Constr. Co., Inc., 40 Wn. App. 893, 899, 700 P.2d 1164 (1985); Everett v. Diamond, 30 Wn. App. 787, 791-92, 638 P.2d 605 (1981)).
Attwood v. Albertson's Food Ctrs., Inc., 92 Wn. App. 326, 330, 966 P.2d 351 (1998) (citing Bernethy v. Walt Failor's, Inc., 97 Wn.2d 929, 935, 653 P.2d 280 (1982)).
See, e.g., Reese v. Stroh, 128 Wn.2d 300, 308, 907 P.2d 282 (1995) (citing McLaughlin v. Cooke, 112 Wn.2d 829, 837, 774 P.2d 1171 (1989); O'Donoghue v. Riggs, 73 Wn.2d 814, 824, 440 P.2d 823 (1968)) (expert testimony is required on the issue of proximate cause in medical malpractice cases); Ma'ele v. Arrington, 111 Wn. App. 557, 45 P.3d 557 (2002) (biomechanical engineer testified as expert about whether a low-speed collision caused the plaintiff's injuries); Rasmussen v. Bendotti, 107 Wn. App. 947, 29 P.3d 56 (2001) (scuba diving expert testified that diver's error did not cause his diving partner to drown); Esparza v. Skyreach Equip., Inc., 103 Wn. App. 916, 15 P.3d 188 (2000), review denied, 144 Wn.2d 1004 (2001) (experts testified about causation in products liability case).
That having been said, the trial court's decision to strike was nevertheless proper. Lewis' opinion was based on speculation that Forrest saw Legasse chasing him, and speculative expert testimony is not admissible. While Lewis studied the accident report and later viewed the accident scene, his statement that 'it is probable that the suspect saw Detective Legasse in high-speed pursuit' is mere speculation. First, Forrest's sworn testimony indicates otherwise. Second, in making this statement, Lewis testified about what Forrest saw, which is not a proper subject for expert testimony. Third, it is unclear how, relying on the roadway, speeds, and distances, one could form an opinion that Forrest both looked behind him and also saw Legasse. Because Lewis' opinion on causation depends on inadmissible factual speculation, the trial court properly struck the declaration.
Flett, 40 Wn. App. at 285 (citing Crowe v. Prinzing, 77 Wn.2d 895, 898, 468 P.2d 450 (1970)).
The trial court also struck the declaration of Timothy Perry, an undisputed expert in police procedures, training, and investigations. Like Lewis, Perry stated that '[g]iven the configuration of the roadway and Detective Legasse's actions, it is clear that Mr. Forrest knew he was being pursued.' Perry concluded that Legasse's high-speed pursuit of Forrest was a proximate cause of the injuries. For the same reasons stated above, the court did not err by striking this document.
B. Mark Brown's Affidavit
Seaforth and Foster submitted a copy of Officer Mark Brown's affidavit of probable cause. The affidavit describes the events surrounding the collision and contains no information regarding causation. The trial court struck the affidavit because it was not properly authenticated and was inadmissible hearsay.
A copy of an official record is properly authenticated if it is certified by the original document's legal custodian. The Brown affidavit is attached to the seventh exhibit of the Dynan Declaration in Support of Seaforth's Response to the Motion for Summary Judgment, but the declaration in no way incorporates the affidavit, and the affidavit is not certified by the legal custodian. And while the document is signed, it is not dated and it does not state where it was or would be signed. This was a proper basis on which to strike the affidavit.
Even if the Dynan declaration properly incorporated the affidavit, this would still be insufficient for authentication purposes. Burmeister v. State Farm Ins. Co., 92 Wn. App. 359, 367, 966 P.2d 921 (1998).
Even if the affidavit were properly authenticated, it is still inadmissible hearsay. Seaforth and Foster argue that it is not hearsay because it falls within the business records exception. A business record is admissible hearsay if a qualified witness testifies to its identity and mode of preparation and it was made and kept in the ordinary course of business. A document falls in this category if it is a routine record and if cross-examination of the record's generator would serve little or no purpose. Here, the record is ostensibly a summary of Brown's observations and witness interviews. The affidavit cannot be taken as true on its face, as cross-examination would permit Legasse to test the accuracy of the investigation. It was therefore not admissible on this basis.
RCW 5.45.020; State v. Hines, 87 Wn. App. 98, 100, 941 P.2d 9 (1997).
Hines, 87 Wn. App. at 101 (citing State v. Sosa, 59 Wn. App. 678, 684, 800 P.2d 839 (1990)).
See id. at 101-02 (the police officer's investigation summary did not fall within the business records exception because cross-examination would permit the opposing party to test its accuracy).
C. William Bellah's Witness Statement
Seaforth and Foster submitted a voluntary statement form completed by William Bellah, an accident witness. The statement said that 'immediately' after the collision, an automobile (presumably belonging to Legasse) arrived. The court struck the document because it was not authenticated by the officer who took the statement.
Seaforth and Foster argue that the statement is authenticated because both Bellah and the officer signed the document under penalty of perjury. But this is insufficient to authenticate a document. As mentioned above, a copy of an official report must be accompanied by the legal custodian's certification. The Dynan declaration attempts to authenticate the statement, but an 'attorney cannot testify to the authenticity or the contents of the police report based on personal knowledge.' Seaforth and Foster argue that copies of signed and sworn documents are admissible under ER 1003 and 1004. But even if document copies are admissible, they must still be properly authenticated. The trial court did not err.
Burmeister, 92 Wn. App. at 367.
Burmeister, 92 Wn. App. at 367.
ER 1003 and 1004 state that a duplicate is admissible to the same extent as an original in most circumstances.
II. Legasse's Motion for Summary Judgment
The trial court dismissed this case on summary judgment, concluding that Forrest caused the collision while fleeing Legasse's attempt to arrest him, not while fleeing Legasse's pursuit. In reviewing a trial court's decision to grant summary judgment, this court considers all facts and reasonable inferences in the light most favorable to the nonmoving party. Absent a genuine issue of any material fact, the moving party is entitled to summary judgment as a matter of law. Summary judgment is proper 'only if reasonable persons could reach only one conclusion from all of the evidence.' Here, because the trial court properly struck the declarations and exhibits discussed above, the only evidence of causation is Forrest's uncontradicted testimony that he did not know that Legasse was behind him when he caused the collision. While we sympathize with the plaintiffs who were badly injured, we conclude that even viewing the evidence in the light most favorable to them, there is no question of material fact and the court did not err.
Mason v. Kenyon Zero Storage, 71 Wn. App. 5, 8-9, 856 P.2d 410 (1993).
Condor Enters., Inc. v. Boise Cascade Corp., 71 Wn. App. 48, 54, 856 P.2d 713 (1993) (citing CR 56(c); Marincovich v. Tarabochia, 114 Wn.2d 271, 274, 787 P.2d 562 (1990)).
Hansen v. Friend, 118 Wn.2d 476, 485, 824 P.2d 483 (1992) (citing Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982)).
King County Fire Prot. Dists. No. 16, No. 36 and No. 40 v. Housing Auth. of King County, 123 Wn.2d 819, 826, 872 P.2d 516 (1994) (citing Dunlap v. Wayne, 105 Wn.2d 529, 535, 716 P.2d 842 (1986)) (a court may not consider inadmissible evidence when ruling on a summary judgment motion).
We affirm.
APPELWICK and COX, JJ., concur.