Opinion
No. 56452-8-I.
May 29, 2007.
Appeal from a judgment of the Superior Court for King County, No. 03-2-28320-7, Carol A. Schapira, J., entered June 13, 2005.
Darrell Hayes sued Doris Collinson after she injured him in an automobile collision. The jury awarded Hayes some damages, but because the verdict was less than Collinson's Civil Rule 68 offer of judgment, the trial court awarded Collinson postoffer costs. The court also granted Collinson's posttrial motion to protect tax records that were placed in the court file. Hayes appealed the jury's verdict, arguing that improper expert testimony had skewed it. He also appealed the cost award and the protective order. Although the court erred in admitting the expert testimony, we affirm the jury's verdict because the error was harmless. We also affirm the order regarding the tax records, because judges have wide latitude to control the conduct of attorneys who litigate in their courtrooms. We reverse and remand the cost order, because some of the costs were awarded in error or did not have adequate support in the record.
I
Collinson, driving a sedan approximately 30 miles per hour, rear-ended a large truck driven by Hayes, who was stopped at a red light. The force was enough to push the truck two or three car lengths ahead, but there was no visible damage to it. Collinson's car sustained severe front-end damage. Hayes was experiencing neck and back problems before the collision, but held a physically demanding job building swimming pools, earning an average of $18 per hour. After the collision, Hayes kept working, but experienced progressively worsening pain and stiffness in his back and neck. He eventually was diagnosed with herniated disks that required surgery.
Although surgery improved his condition, Hayes was still on limited physical activity and was advised to modify his strenuous job duties. Vocational rehabilitation counselors estimated Hayes's future earning potential as $20,000 to $40,000 per year. Hayes dropped out of a career retraining program, citing an addiction to pain medication and his need to work full time during his employer's busy season. He acknowledged that he still qualified for "some pretty good jobs" and could work full time with modified duties. Hayes continued to work the same swimming pool jobs for two to three years after the collision.
Report of Proceedings (RP) (May 23, 2005) at 153.
At trial, Collinson sought to admit the testimony of Richard Harding, an injury causation analysis expert, about the forces Hayes experienced during the collision. In the context of an automobile collision, delta v is the change in velocity of a particular object, in this case Hayes's body, during the incident. Delta v can be expressed in miles per hour. It is based on the physical principle of conservation of momentum: the product of mass times velocity of the complete event will equal the sum of mass times velocity of all vehicles involved in the event. For example, Harding explained, if two cars of equal mass collide, with one car stationary and the other going 30 m.p.h., the delta v for each vehicle will be approximately 15 m.p.h. The delta v of a human body inside will be the same as that of the vehicle. The higher the delta v, said Harding, the greater the likelihood of injury. Harding was prepared to testify that the delta v for Hayes was 3 to 4 m.p.h., a relatively low impact.
The trial court had reservations about Harding's method of calculating delta v. Initially, the judge excluded Harding's testimony because it was based on calculations produced by EDCRASH, a computer program used in accident reconstruction. The court's concern was not with the EDCRASH software per se, but with the fact that someone other than Harding had actually run the EDCRASH program, and had changed at least one critical parameter. During an intense pretrial battle to admit Harding's testimony, several other gaps in methodology were revealed. Ultimately, the court agreed to let Harding testify based on his own delta v calculations, but not on any results from EDCRASH. At trial, he testified about the factors that affect delta v, but also told the jury that delta v was calculated using a computer program.
Harding was also excluded from giving any medical testimony or diagnosis.
After telling the jury that Hayes experienced a delta v of three to four m.p.h., Harding concluded by explaining what that amount of force would have done to Hayes's body, referred to as "occupant kinematics." He also offered new testimony — not included in his report, his deposition, or in voir dire — as to what the delta v for Collinson would have been. Hayes repeatedly objected during Harding's testimony, but was generally overruled.
The jury returned a verdict for Hayes: $35,675 for past economic damages; $23,000 for past and future non-economic damages, and $0 for future economic damages. This was less than the $75,000 CR 68 pretrial offer Collinson made. The trial court awarded Collinson costs incurred after the offer.
"At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against him for the money or property or to the effect specified in his offer, with costs then accrued. If within 10 days after the service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the court shall enter judgment. An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer. The fact that an offer is made but not accepted does not preclude a subsequent offer. When the liability of one party to another has been determined by verdict or order or judgment, but the amount or extent of the liability remains to be determined by further proceedings, the party adjudged liable may make an offer of judgment, which shall have the same effect as an offer made before trial if it is served within a reasonable time not less than 10 days prior to the commencement of hearings to determine the amount or extent of liability." CR 68.
Posttrial, it was revealed that counsel for Hayes had disseminated Harding's tax returns to unknown third parties. Collinson had filed the tax returns in response to a discovery order, and had not initially sought any protective order or seal. The returns contained Harding's personal information, including his address and Social Security number. The trial court ordered the documents to be returned, and replaced with redacted copies bearing a protective watermark. The court also ordered Hayes's counsel to cease dissemination of Harding's tax returns, and disclose all parties who had received the returns.
Hayes appeals the verdict, the costs order, and the order regarding the tax returns.
II.
Hayes argues that the trial court erred in admitting Harding's expert testimony. He claims that Harding's methods do not conform to the Frye test, and that his testimony was also inadmissible under Evidence Rules 401, 403, and 703. Collinson responds that injury causation analysis (ICA) is an accepted scientific method, and the methodology flaws Hayes identifies are actually irrelevant to the delta v analysis.
Frye v. U. S., 293 F. 1013 (D.C. Cir. 1923).
The other two issues raised by Collinson, that Hayes's experts were permitted to testify, and Hayes did not present his own ICA experts, are unsupported by any authority and need not be addressed. State v. Dennison, 115 Wn.2d 609, 629, 801 P.2d 193 (1990).
Admission of Expert Testimony
This court undertakes the Frye analysis de novo. The trial court's decision to permit Harding's expert testimony is reviewed for abuse of discretion. In Washington, a court can admit novel scientific evidence if it passes theFrye test. Under that test, scientific evidence is admissible if (1) it is based on a theory or principle generally accepted in the relevant scientific community, and (2) there are generally accepted methods of applying that theory to produce reliable results. Even if the evidence passes theFrye test, expert testimony is reviewed to see if it will assist the trier of fact:
State v. Sipin, 130 Wn. App. 403, 414, 123 P.3d 862 (2005).
Davidson v. Metropolitan Seattle, 43 Wn. App. 569, 572, 719 P.2d 569 (1986).
Sipin, 130 Wn. App. at 414.
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 form of an opinion or otherwise.
ER 702.
ER 702.
And under ER 403, the court may exclude any evidence that will confuse or mislead the jury.
The first issue is whether the EDCRASH program meets theFrye test in this case. This court in State v. Sipin recently enunciated a specific Frye test applicable to computer-generated models or simulations. Such programs may be the basis of expert testimony regarding substantive matters:
It is not, as Collinson suggests, an evaluation of injury causation analysis. The trial court was concerned specifically with the scientific method used to calculate delta v, not methods of injury causation analysis.
130 Wn. App. 403, 123 P.3d 862 (2005).
[C]onditioned upon a sufficient showing that (1) the computer is functioning properly; (2) the input and underlying equations are sufficiently complete and accurate (and disclosed to the opposing party so that they can be challenged); and (3) the program is generally accepted by the appropriate community of scientists for use in the particular situation at hand.
Sipin, 130 Wn. App. at 415.
Sipin, 130 Wn. App. at 415.
In Sipin, this court invalidated under the third prong a program designed to predict vehicle occupant kinematics. The evidence demonstrated that the relevant scientific community disagreed about the program's usefulness in predicting body movement in multi-impact collisions.
Sipin, 130 Wn. App. at 421.
This case involves a single-impact collision, soSipin is not directly on point. But applying theSipin test to the facts of this case, prongs one and two are lacking. Harding could not verify the computer's functionality, other than to state that the program was generally "guaranteed" and "validated." It was undisputed that Harding did not enter the data into EDCRASH, and he could not verify its accuracy for the court. In his deposition, he said that the amount of damage to the Buick was particularly important in the EDCRASH calculations, but he derived that information solely by looking at photographs. Harding did not know if there was frame damage, which he claimed was important because of the relative stiffness of the frame compared to other parts of the car. When the court pressed him on this matter, he suddenly reversed himself and claimed that damage to the Buick was irrelevant, and only damage to the Ford mattered.
Hayes's experts also questioned the completeness of Harding's data, particularly the reduction of the preprogrammed stiffness coefficients of the Buick. The court told Harding to reproduce the delta v calculations on a blackboard at trial and not rely on the EDCRASH numbers, but Harding told the jury that his delta v calculations were obtained using a computer program and the record does not reflect any independent calculations. We conclude that the trial court erred in admitting any testimony about delta v based on EDCRASH calculations in this case.
Harding's testimony about delta v and occupant kinematics was unhelpful to the jury even without the EDCRASH numbers. Harding contradicted himself several times regarding what information is or is not important in the calculation of delta v. He said in depositions and in voir dire that the speed of the striking vehicle did not matter in a delta v calculation. But then Harding said that in a collision between two cars of equal mass where one is stopped, the delta v for each car is one half of the striking speed. He also testified that the equation underlying the delta v calculation is mass times velocity, but Harding never identified the velocity he used to calculate the delta v in the Hayes-Collinson collision. In fact, when he was asked to reverse-calculate the striking speed of Collinson's car in his deposition, he concluded that it was 13 to 17 m.p.h. However, it was undisputed that Collinson was traveling at 30 m.p.h. and barely braked, and possibly even hit the gas, before she collided with Hayes. When confronted with this discrepancy at trial, Harding claimed that the 13 to 17 m.p.h. figure referred to the delta v of Collinson's car, not the striking speed. But the deposition transcript clearly indicates that he was talking about the striking speed:
Q. What do you calculate the speed, striking speed of the Collinson's vehicle to be, the Buick?
A. Well, I didn't calculate that either because I don't need to know that to get to a Delta V, nor does the program do that. If I had, then I can make a very rough estimate of what that velocity may have been, but I didn't do it for this case.
Q. What was your testimony about the striking speed of the Buick?
MR. BRYANT: Do you want him to try to calculate something now?
THE WITNESS: I can tell you, sir. I think that the — using a very simplistic conservation of momentum, given that one vehicle was stationary when it was struck, then not accounting for restitution of which there won't be very much because of the crush on the Buick, then I think for a Delta V of the Ford of 3 to 4 miles an hour, the striking speed of the Buick could be something between 13 and 17 miles an hour.
Q. (BY MR. WELLS) You would believe that that was the speed of the vehicle striking the — the Buick striking the Ford?
A. That would be my conclusion had I wanted to draw that or calculate it, but I've done that at your request, obviously.
RP (May 25, 2005) at 85.
RP (May 25, 2005) at 85.
There were other deficiencies in Harding's statements during voir dire. He admitted that the override of Hayes's bumper affected delta v, because it affected the amount of energy absorbed by each vehicle. But Harding did not know the height of either vehicle's bumper. Harding also stated that the masses of the vehicles matters in delta v, but he did not know the weight of Hayes's truck. If the delta v calculation is wrong, it is impossible to properly assess occupant kinematics.
Harding was challenged about these deficiencies on cross-examination. On redirect, counsel for Collinson asked if any of the above factors were relevant for establishing delta v. Harding's answer was perplexing:
Under my analysis, it is not relevant. It has to be considered. The circumstances of this collision with the Delta V as determined by me, means that those things, while aware of their potential influence, would not be playing a role.
RP (May 25, 2005) at 114.
RP (May 25, 2005) at 114.
This is confusing testimony that would not assist the jury.
Finally, Harding's trial testimony regarding the delta v for Collinson was also improper. It was not disclosed in his report, in discovery, or during voir dire. This was a significant, substantive opinion that should have been disclosed in discovery. Failure to do so was a basis for the trial court to exclude it. Because there was no explanation for this egregious discovery violation, the trial court should have stricken that portion of Harding's opinion.
Viereck v. Fibreboard Corp., 81 Wn. App. 579, 587-88, 915 P.2d 581 (1996).
Viereck, 81 Wn. App. at 588.
Harmless Error
Collinson claims that admission of Harding's testimony, if error, was harmless. Error is only grounds for reversal if it is prejudicial, which in matters of evidentiary error means "`within reasonable probabilities, had the error not occurred, the outcome of the trial would have been materially affected.'"
State v. Smith, 106 Wn.2d 772, 780, 725 P.2d 951 (1986) (quoting State v. Cunningham, 93 Wn.2d 823, 831, 613 P.2d 1139 (1980)).
Reviewing the record as a whole, the error does appear harmless. Ample other evidence explains the jury's decision not to award greater damages and future time loss. Hayes testified that he was experiencing the same level of pain in his back on May 16, 2000, six weeks before the accident as he was experiencing shortly afterward. He also said he could continue his construction work full time, but might have to modify his duties. He qualified for, in his words, "some pretty good jobs," like accountant or pharmacist, but dropped out of a college retraining program. Frank Eagle, Hayes's boss, testified that Hayes continued in his physically demanding job for two years after the collision. Anna Paquette, Hayes's vocational counselor, said Hayes qualified for construction management positions, which paid well and were available in the labor market. Dr. Jeff Summe, Hayes's osteopath, could not estimate the percentage of Hayes's injuries attributable to the collision. Also, extensive testimony about Hayes's addiction to pain medication raised mitigation issues. Hayes's evidence did not support his claim that he was unable to earn a good living in the future, or that Collinson was completely responsible for his economic damages.
RP (May 23, 2005) at 153.
Harding was one of 17 witnesses, and his time on the stand was relatively brief. His testimony that the delta v impact was low did not even negate Hayes's theory of the case: orthopedic surgeon Dean Ricketts emphasized that, given Hayes precollision spinal problems, serious problems could have resulted from even a low-impact collision. It is not probable that the outcome of the trial would have been materially affected had Harding's testimony been excluded.
Tax Documents
Hayes challenges the trial court's order removing Harding's tax documents from the court file and replacing them with a watermark reading, "Court Protected Hayes v. Collinson." He also challenges the order requiring him to identify parties to whom he has disclosed the records. He argues that once the tax returns were made part of the public record, Harding can no longer claim a privacy right. Collinson, on behalf of Harding, responds that tax information is private, and disclosure could lead to identity theft.
Courts have substantial authority to oversee their own affairs and ensure that justice is done. Control of attorney litigation conduct is within that authority. The trial court's order watermarking Harding's tax records, restraining counsel from sending tax records to third parties, and requiring counsel to disclose those third parties who have already received the records, was not an abuse of discretion. The order was a legitimate exercise of the court's authority over the discovery process and the conduct of attorneys.
U.S. v. Simpson, 927 F.2d 1088, 1089 (9th Cir. 1991).
Costs
Hayes challenges all costs awarded to Collinson except statutory attorney fees. A trial court's cost award is reviewed for abuse of discretion. If an offer of judgment is made 10 days or more before trial and is not accepted, and the resulting judgment is less than the offer, the trial court can award costs accrued after the offer was made. Costs awardable to a prevailing party are specifically defined in RCW 4.84.010 to include:
Bank of Am. v. David W. Hubert, P.C., 153 Wn.2d 102, 123, 101 P.3d 409 (2004).
(1) Filing fees;
(2) Fees for the service of process by a public officer, registered process server, or other means, as follows:
(a) When service is by a public officer, the recoverable cost is the fee authorized by law at the time of service.
(b) If service is by a process server registered pursuant to chapter 18.180 RCW or a person exempt from registration, the recoverable cost is the amount reasonably incurred in effecting service;
(3) Fees for service by publication;
(4) Notary fees, but only to the extent the fees are for services that are expressly required by law and only to the extent they represent actual costs incurred by the prevailing party;
(5) Reasonable expenses, exclusive of attorneys' fees, incurred in obtaining reports and records, which are admitted into evidence at trial or in mandatory arbitration in superior or district court, including but not limited to medical records, tax records, personnel records, insurance reports, employment and wage records, police reports, school records, bank records, and legal files;
(6) Statutory attorney and witness fees; and
(7) To the extent that the court or arbitrator finds that it was necessary to achieve the successful result, the reasonable expense of the transcription of depositions used at trial or at the mandatory arbitration hearing: PROVIDED, That the expenses of depositions shall be allowed on a pro rata basis for those portions of the depositions introduced into evidence or used for purposes of impeachment.
Collinson cites RCW 4.84.190 as a catch-all provision allowing the court to award costs not otherwise defined in the chapter. However, the plain language of that section indicates that it applies to actions not governed by chapter 4.84 RCW. This superior court action is governed by that chapter, therefore section .190 does not apply.
The trial court awarded some costs properly. Statutory attorney fees of $200 is allowable under RCW 4.84.080(1) and RCW 4.84.010(6). The $250 filing fee for the jury demand is proper under RCW 4.84.010(1). Deposition costs of $260.44, which the trial court prorated to reflect their actual use at trial, was proper under RCW 4.84.010(7).
Some costs awarded were either improper, or need to be explained on remand. The trial court did not clarify whether $750 in travel expenses for Collinson represents costs for in-state mileage, which is the only travel expense for witnesses authorized under the chapter. On its face, $750 seems excessive for travel from the Washington border to King County Superior Court, but the trial court needs to make that determination. Expert witness fees of $5,523.74 was improper. Costs do not include expert witness fees.
RCW 4.84.090; Kiewit-Grice v. State, 77 Wn. App. 867, 874-75, 895 P.2d 6 (1995).
Sims v. KIRO, Inc., 20 Wn. App. 229, 238, 580 P.2d 642 (1978).
The jury verdict is affirmed, but the costs order is reversed and remanded to the trial court for recalculation.
Affirmed in part, reversed in part, and remanded.
WE CONCUR:
I agree with the majority's conclusions that the trial court erred by admitting the testimony of Dr. Harding, had the authority to restrict the use of and access to Dr. Harding's tax records produced in discovery, and erred in its award of costs. However, I believe that the trial court's error in admitting Dr. Harding's testimony was of a type necessitating remand for a new trial. I also believe that the trial court employed an incorrect legal standard in resolving the dispute over the tax records, thus abusing its discretion. Accordingly, from these limited sections of the majority opinion, I dissent.
With regard to the tax document dispute, the majority is correct in noting that the trial court has the authority to control access to information divulged in discovery. CR 26(c);King v. Olympic Pipe Line Co., 104 Wn. App. 338, 16 P.3d 45 (2000). However, this authority must be properly exercised.
Our state constitution provides that "[j]ustice in all cases shall be administered openly, and without unnecessary delay." Wash. Const. art. I, §§ 10. Our Supreme Court recently made clear that this provision applies to documents such as those at issue herein.
We hold that documents filed with the court will presumptively be open to the public unless compelling reasons for closure exist consistent with the Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 640 P.2d 716 (1982), standards.
Rufer v. Abbott Labs., 154 Wn.2d 530, 535, 114 P.3d 1182 (2005).
In this case, Collinson's counsel filed Dr. Harding's tax records with the court in response to a motion brought by Hayes. The Supreme Court spoke to just this situation:
[A]ny records that were filed with the court in anticipation of a court decision (dispositive or not) should be sealed or continue to be sealed only when the court determines — pursuant to Ishikawa — that there is a compelling interest which overrides the public's right to the open administration of justice.
Rufer, 154 Wn.2d at 549.
The order entered by the trial court does not manifest the findings called for by Ishikawa and Dreiling v. Jain, 151 Wn.2d 900, 93 P.3d 861 (2004). Thus, in making its decision, the trial court employed the wrong legal standard. This constitutes an abuse of discretion. Wash. State Physicians Ins. Exch. Ass'n v. Fisons Corp., 122 Wn.2d 299, 339, 858 P.2d 1054 (1993); Gillett v. Conner, 132 Wn. App. 818, 133 P.3d 960 (2006).
The trial court's order authorized the removal of records from the court file and their replacement with redacted copies of the same records. This had the same effect as sealing portions of the records. Moreover, the trial court's order limiting the attorneys' dissemination of the information contained in the records is premised upon the correctness of the sealing decision. I would remand the matter to the trial court to allow for the entry of an order in compliance with Rufer,Dreiling, Ishikawa, and GR 15 ("Destruction, Sealing, and Redaction of Court Records").
As to Dr. Harding's testimony, I agree with the majority's analysis of the trial court's ruling admitting the testimony and the majority's conclusion that the testimony should not have been admitted. I do not share the majority's belief that the error was harmless.
Testimony at trial was that Hayes incurred $49,389.34 in medical expenses. He presented ample medical testimony in support of this claim. However, the issue of causation was hotly disputed by Collinson, who presented medical testimony in contravention of Hayes' claim. The last witness to testify at trial was Harding, who was called by Collinson to rebut Hayes' claim regarding causation. The jury's verdict included only $35,675.00 for past economic damages (including both medical expenses and wage loss).
Determining whether an evidentiary error is harmless is unquestionably an inexact, subjective process. "[W]hat influences a particular jury in a particular case can simply never be discovered." Dennis J. Sweeney, An Analysis of Harmless Error in Washington: A Principled Process, 31 Gonz. L.Rev. 277, 280 (1995-1996), citing State v. Ng, 110 Wn.2d 32, 43, 750 P.2d 632 (1988) ("The individual or collective thought processes leading to a verdict `inhere in the verdict' and cannot be used to impeach a jury verdict."). Nevertheless, Judge Sweeney carefully identifies the types of evidentiary error that can most confidently be perceived as not affecting a trial's outcome.
The first of these is an error "[r]elating to an [i]ssue [n]ot in [c]ontroversy." 31 Gonz. L.Rev. at 298. See,e.g., State v. Bozovich, 145 Wash. 227, 259 P. 395 (1927); Gallagher v. Town of Buckley, 31 Wash. 380, 72 P. 79 (1903); State v. Sykes, 2 Wn. App. 929, 471 P.2d 138 (1970). As Judge Sweeney explains:
[I]f the disputed evidence or instruction does not relate to a disputed issue, it is likely to be harmless. . . . [I]f one accepts the assumption that juries act rationally, then refusing to overturn a verdict based on the introduction of improper evidence, instructions or comments should not result in reversal if they relate to issues over which there is no controversy.
31 Gonz. L.Rev. at 304. Here, however, Harding's testimony was about causation, an issue vigorously contested at trial.
Another type of evidentiary error that can confidently be treated as harmless is one "[c]ured by the [j]ury's [v]erdict." 31 Gonz. L.Rev. at 304. See, e.g.,Miller v. Great N. Ry. Co., 105 Wash. 349, 177 P. 799 (1919); Okkerse v. Westgate Mobile Homes, Inc., 18 Wn. App. 45, 566 P.2d 944 (1977); Faust v. Benton County Pub. Utility Dist. No. 1, 13 Wn. App. 473, 535 P.2d 854 (1975). As discussed by Judge Sweeney:
The next factor influencing the determination of harmless error is distilled from those cases in which a jury arrives at a verdict which is necessarily inconsistent with the erroneous . . . evidentiary ruling. The conclusion of harmless error in those circumstances is based on the assumption that the offending . . . evidence was necessarily rejected because it is logically inconsistent with the verdict.
31 Gonz. L.Rev. at 304. Here, however, the jury's verdict is consistent with the jury having given credence to or having relied upon Harding's testimony.
An additional situation in which an evidentiary error may comfortably be deemed harmless is where "the evidence admitted or excluded was merely cumulative." 31 Gonz. L.Rev. at 319.See, e.g., Havens v. C D Plastics, Inc., 124 Wn.2d 158, 876 P.2d 435 (1994);Brown v. Spokane County Fire Protection Dist. No. 1, 100 Wn.2d 188, 668 P.2d 571 (1983); Feldmiller v. Olson, 75 Wn.2d 322, 450 P.2d 816 (1969); Allman Hubble Tugboat Co. v. Reliance Dev. Corp., 193 Wash. 234, 74 P.2d 985 (1938). Here, while there was other evidence admitted in support of Collinson's defense on the causation issue, Harding's testimony was the only such evidence purporting to be of a scientific nature. It cannot properly be dismissed as being merely cumulative.
Thus, Harding's testimony was on a hotly contested issue, was not cumulative, and was consistent with the jury's verdict. It is difficult to infer that the jury paid no heed to Harding's testimony.
The oft-repeated rule is that "[e]rror will not be considered prejudicial unless it affects, or presumptively affects, the outcome of the trial." Thomas v. French, 99 Wn.2d 95, 104, 659 P.2d 1097 (1983). However, as determined therein, when "there is no way to know what value the jury placed upon the improperly admitted evidence, a new trial is necessary."Thomas, 99 Wn.2d at 105. Such a result has long been held appropriate. See, e.g., Smith v. Ernst Hardware Co., 61 Wn.2d 75, 80, 377 P.2d 258 (1962) ("It would be sheer conjecture for this court to attempt to determine what value the jury placed upon the [improperly admitted evidence] or to conclude that the jury placed no value upon it at all. A new trial is, therefore, necessary.").
Harding was the trial's last witness. The circumstances of the case and the contents of the jury's verdict do not give rise to an inference that the jury ignored his testimony. We have no way of knowing exactly what weight the members of the jury collectively or individually placed on Harding's testimony. Thus, I cannot conclude with confidence that the erroneous admission of his testimony was harmless. I would remand for a new trial.
Harding was allowed to explain his prior unavailability — and bolster his credibility with the jury — as resulting from his being detained in Washington, D.C., until the night before he testified, working "with NASA" and "carrying out an injury causation analysis on the occupants of the shuttle [Columbia], the seven astronauts that died." Report of Proceedings (May 25, 2005) at 68.