Expert Witnesses – Current Standards

Evidence Rules for Admission of Expert Testimony in Washington State   Cathy Johnston-Forbes v Dawn Matsunaga (August 28, 2014 WSC) Opinion: 140828 Johnston-Forbes v Matsunaga WSC In the context of a dispute over the admissibility of a biomechanical expert’s testimony, the Washington Supreme Court provided the most current summary of expert testimony law in Washington State: Generally, expert testimony is admissible if (1) the expert is qualified, (2) the expert relies on. generally accepted theories in the scientific community, and (3) the testimony would be helpful to the trier of fact. In applying this test, trial courts are afforded wide discretion and trial court expert opinion decisions will not be disturbed on appeal absent an abuse of such discretion. In re Marriage of Katare, 175 \Vn.2d 23, 38, 283 P.3d 546 (2012), cert. denied, _ U.S. __, 133 S. Ct. 889, 184 L. Ed. 2d 661 (2013). If the basis for admission of the evidence is ‘”fairly debatable,”‘ we will not disturb the trial court’s ruling. Grp. Health Coop. of Puget Sound, Inc. v. Dep’t of Revenue, 106 Wn.2d 391, 398, 722 P.2d 787 (1986) (internal quotation marks omitted) (quoting Walker v. Bangs, 92 Wn.2d 854, 858, 601 P.2d 1279 (1979)). In Washington, there are four main Evidence Rules regarding the use of expert witnesses. ER 702 generally establishes when expert testimony may be utilized at trial: “If 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...

Parol Evidence Admissible to Prove Intent Where Contract is Ambiguous

Brogan & Anensen LLC v. Lamphiear, — P.3d —- (Wash. Mar 12, 2009) (NO. 81825-8) Lamphiear owned 64 acres just outside of McCleary, Washington. He frequented the Next Door Café, a local restaurant, as did Garry Anensen, one of the sellers. According to the excluded evidence, several patrons overheard the negotiations. Lamphiear wanted to be allowed one year to move his manufactured home to the new property. Anensen told Lamphiear that he and Brogan were interested in only the land, so Lamphiear could continue to live on the property for a year while he dismantled the buildings and moved them to his new property. After the sale closed, Anensen then told Lamphiear to get off the property and leave the buildings behind. When Lamphiear insisted that he had one year to move his house, Anensen and Brogan filed suit to enforce possession under the sales agreement. The trial court granted summary judgment to Brogan and Anensen, concluding that that agreement was fully integrated and thus extrinsic evidence was inadmissible to modify the agreement’s terms. The court awarded attorney fees to Anensen and Brogan under the agreement. The Court of Appeals affirmed, holding that the affidavits were not admissible to modify the terms of the fully integrated agreement. The Supreme Court reversed because the term “possession date” was ambiguous. The sale form agreement stated that the “possession date” was on closing, any number of days after closing, or at any other agreed time. Next to each of these choices was a box. But the parties did not check any of the boxes. The “possession date” was therefore undefined. It does...

Inadvertent Disclosure of Privileged Information – Flawed Balanced Approach

Sitterson v. Evergreen School Dist. No. 114, — P.3d —- (Wash.App. Div. 2 Nov 25, 2008) (NO. 36218-0-II) Thousands of pages of documents are routinely produced in litigation. Normally, certain documents, like letters from attorneys to clients, are placed on the privilege log. Occasionally, a mistake is made and the privileged document is produced. The law has moved away from a strict waiver for inadvertent production toward a more liberal approach that allows the privilege to be reasserted in certain situations. This is known as the “Inadvertent Disclosure” Rule. Sitterson is the first Washington case on the subject. Generally Washington follows the federal rules but has not yet adopted the most recent changes. In that situation, Washington courts properly refused to legislate the rule. See State v. Darden, 145 Wn.2d 612, 627, 41 P.3d 1189 (2002) (refusing to adopt a new privilege under ER 501 that was accepted by federal courts under Fed.R.Evid. 501 because federal rule is “entirely different” from Washington rule). However if there is no rule in place, the court has the freedom to adopt one. As of September 19, 2008, Federal Rule of Evidence 502(b) provided that a disclosure made in a federal proceeding does not operate as a waiver if: (1) the disclosure is inadvertent; (2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and (3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B). From a policy standpoint, the court must weigh two competing doctrines: 1) Full disclosure of all the facts – decisions of a court...