Trial Brief - 1st Draft

Plf’s Trial Brief - 1Law Office of Thomas S. Olmstead

P.O. Box 68Poulsbo, WA 98370

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I, Barb Smith, hereby certify under the penalty of perjury

under the laws of the State of Washington that on the

___ day of __________, 2011, I served a true and

correct copy of the foregoing document to which this

is attached upon the individuals listed by the following means:

Vivienne Alpaugh

[ ] First Class Mail [ ] Facsimile _______________

[ ] Express Mail [ ] Hand Delivered [ ] Legal Messenger

___________________________________

Barb Smith

IN THE DISTRICT COURT FOR THE STATE OF WASHINGTONIN AND FOR THE COUNTY OF KITSAP

NANCY FORNEY, Individually; MICHAEL FORNEY; Individually; NANCY FORNEY and MICHAEL FORNEY, husband and wife, and the marital community comprised thereof; and ASHLEY FORNEY, Individually,

Plaintiff(s),

vs.

RACHEL NEFF and JOHN DOE NEFF, wife and husband, and the marital community comprised thereof,

Defendant(s).

Case No.: Y10-0007

PLAINTIFF’S TRIAL BRIEF

COMES NOW, the Plaintiff, James J. Olson, II, by and through his attorney of record,

Thomas S. Olmstead, and hereby submits for the Court’s consideration the following Trial Brief.

I. BACKGROUND

This is an action by Plaintiff James Olson, II, a single man, for injuries and damages he

received in an rear-end auto accident with Defendant Janeen Jones. This matter has been taken

to Arbitration and we present to the court at this point on trial de novo filed by Defendant.

II. FACTS OF ACCIDENT



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On April 7, 2008, at approximately 5:00 p.m., Mr. Olson was eastbound on 56th Street on

his way home from work in Tacoma, Pierce County, Washington. He was lawfully stopped at

the red light of 56th and Oakes in his small Lexus when the Defendant Janeen Jones, in her Ford

pickup truck, failed to stop and rear-ended our client traveling approximately 30 to 35 miles per

hour. Although the damages were substantial, they each exchanged their insurance information

and went their separate ways. Our client later made an oral report to the Tacoma Police

Department but no report was produced.

III. LIABILITY

It is Plaintiff’s contention that, as the following driver, Defendant Janeen Jones had a

duty to operate her vehicle in a safe manner to avoid colliding with the rear of Mr. Olson’s

vehicle. The primary duty of avoiding a collision rests upon the following driver as provided in

RCW 46.61.145 which reads:

(1) The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent having due regard for the speed of such vehicles and the traffic upon and the condition of the highway.

The following driver must keep his eyes on the car ahead1 and will not be heard to say

that he did not see something he should have seen.2

Defendant denies liability in her Answer to Plaintiff’s Complaint and asserts defenses

that Plaintiff failed to mitigate his damages, and that others persons or entities are at fault for

Plaintiff’s damages. Defendant Janeen Jones’ deposition was not taken in this matter; however,

in her answers to interrogatories, she did not deny liability

1 Tackett v. Milburn, 36 Wn.2d 349, 218 P.2d 298 (1950)2 Johnson v. Washington Route, 121 Wash. 608, 209 Pacific 1100 (1922)



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It is not expected that Ms. Jones will contest her liability for proximately causing the

collision that injured Mr. Olson, but rather the amount of damages therefrom.

////

//////

IV. DAMAGES

Mr. Olson had just turned 19 years old the month prior to this accident. He lived on his

own working a nearly minimum wage job with no medical benefits. He had no medical

insurance and was unsure what to do for his injuries. Mr. Olson reported to the Allenmore

Hospital shortly after the collision complaining of neck and back pain, especially with range of

motion. He was diagnosed with an acute cervical and lumbar strain, prescribed Flexeril and

Percocet, encouraged to take over the counter Ibuprofen and told no work for 3 days. He treated

with chiropractor Todd O’Mealy for a period of five months until he reached maximum medical

improvement.

A. TREATMENT EXPENSES

# Name/Address/Tel#s Tx Date(s) Amount1 Sabine L. Price

Allenmore Hospital04/07/08 1479.55

2 O’Mealy Chiropractic Clinic, Inc. 04/22/08-

09/23/08Total* 4,563.00*

3 Walgreens Pharmacy 04/07/0804/07/08

12.1916.99

4 Medical Imaging Northwest, LLP 04/07/08 67.005 Allenmore Children & Young Adult

Clinic04/28/0806/20/08

120.005.00

6 MultiCare 04/07/08 234.00

7 Brenda Johnson, LMP 04/25/08-05/12/08Total $630.00

Total Medical Specials: $7,127.73



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* Total for O’Mealy principal is 04/22/08 through 09/23/08 which includes accrued interest billing fees, and lien fees. The total bill for Dr. O’Mealy is $6,287.06 as of 12/31/10.

Mr. Olson is entitled to travel expenses for medical treatment where the travel is

reasonable and necessary to secure adequate treatment or care under Shipman v. Foisy, 49 Wn.2d

406, 302 P.2d 408 (1956) at the accepted rate of $5.00 per visit for a total of $190.00 (38 visits x

$5.00).

B. WAGE LOSS

Michelle Lowe, Bookkeeper for CC’s Classy Chassis, Inc. as well as the Plaintiff are

anticipated to testify that Mr. Olson was unable to perform his job as a detail technician at CC’s

Classy Chassis, Inc. from April 8 through April 10, 2008. Mr. Olson was employed full time at a

rate of $9.75 per hour for a total wage loss amount of $234.00.

C. AMOUNT OF DAMAGES MAY BE PROVEN WITHOUT MATHMATICAL PRECISION

Once the Plaintiff, in an action for damages, has established that damages have been

incurred, the amount of proof required to establish same is the only sufficient evidence to

provide the trier of fact with a reasonable basis for estimating the amount of the loss.

In O'Shea v. Riverway Towing Co., 677 F.2d 1194 (7th Cir. 1982), the trial judge was

upheld in concluding that there was no more than fifty percent likely of finding another job for a

middle-aged woman who was very overweight, badly scarred on one arm and one leg, unsteady

on her feet, in constant and serious pain from the accident, with no education beyond high

school, and no work skills other than cooking. The woman was working a job that happens to

require standing for long periods, which she is incapable of doing. The court also found the fact

that the job was the plaintiff's first full-time job and that the accident occurred before the plaintiff

had held that job for one year did not preclude an award of damages.



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Where the injured shows s/he suffers damages, s/he will not be precluded from receiving

a damages award merely because some amount of speculation must be used in calculating the

amount of those damages.3

The measure of damages in a personal injury case is not subject to precise mathematical

calculation. Each case must be measured by its own facts, and considerable discretion and

latitude must necessarily be vested in the jury.4

D. DEFENDANT IS NOT ENTITLED TO A FAILURE TO MITIGATE INSTRUCTION

There is no evidence that Plaintiff failed to abide by his physicians instructions for

injuries suffered in the subject incident, therefore, Defendant is not entitled to a jury instruction

on failure to mitigate.

Initially, there must be substantial evidence that there was something that the Plaintiff

could do to mitigate his loss and that requiring the Plaintiff to do so was reasonable under the

circumstances.5 Furthermore, it must be shown that the Plaintiff acted unreasonably in failing to

undertake the mitigating activity; Shewry v. Heuer, 255 Iowa 147, 121 N.W.2d 529 (1963)

("[A]n injured person is under no absolute obligation to follow the advice of his physician in

order to minimize his damages. His duty in this respect is to use ordinary care in the matter of

following such advice."); Kirk v. Union Pac. R.R., 514 N.W.2d 734, 737 (Iowa App.1994).

Such an instruction was properly rejected in Hawkins v. Marshall, 92 Wash. App. 38, 962

P.2d 834 (1998):

3 TXG Intrastate Pipeline Co v. Grossnickle, 716 So. 2d 991 (Miss. 1997)

4 Hyundai Motor Co. v. Chandler , 882 S.W.2d 606 (Tex. App. Corpus Christi 1994), reh'g overruled, (Nov. 3, 1994) and writ denied, (Feb. 16, 1995)5See Tanberg v. Ackerman Inv. Co., 473 N.W.2d 193, 24 A.L.R.5th 837 (Iowa 1991) (overruled on other grounds by, Greenwood v. Mitchell, 621 N.W.2d 200 (Iowa 2001))



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This instruction should be used when "(1) there is evidence creating an issue of fact as to the injured person's failure to exercise ordinary care in receiving or submitting to medical treatment, and (2) the evidence permits a segregation of the damages resulting from that failure to exercise ordinary care." WPI 33.02. Here, Marshall presented evidence that Hawkins failed to follow her doctor's advice [to join the YMCA or to follow up with her doctors for care. But Marshall did not present testimony or other evidence that Hawkins' omissions aggravated her conditions or delayed recovery. Accordingly, the evidence did not create a question of fact on the issue of mitigation of damages, and the trial court did not err in refusing to give such an instruction.

Id. 92 Wn.App. 47-92 Wn.App. 48. See also Jurgensen v. Smith, 611 N.W.2d 439, 2000

SD 73 (S.D., Jun 07, 2000)("The record is replete with evidence that Jurgensen took reasonable

steps to improve his condition, including enrolling in a six- year pharmacy program at South

Dakota State University . There is little, if any, evidence in the record to support a jury

instruction on mitigation of damages. We find that the instructions given at trial correctly

apprised the jury of the applicable law and the requisite quantum of proof.") See also Brockman

v. Webber, 2000 WL 210421 (Iowa App., Feb 23, 2000) (holding that no failure to mitigate

instruction was warranted to assert plaintiff's weight loss contributed to her back injury

condition).

E. PLAINTIFF MAY TESTIFY CONCERNING HIS OWN SUBJECTIVE SYMPTOMS

An injured person's testimony concerning his own subjective symptoms, including pain,

suffering and limitations of physical movements, is admissible and probative.6

F. STATEMENTS OF INJURED PERSON REGARDING PAIN ARE ADMISSIBLE AND NOT OBJETIONABLE AS HERESAY

In Shearer v. Buckley, 31 Wash. 370, 376, 72 Pac. 76 (1903), the court said:

The next assignment of error is that the court denied the motion for a new trial. A number of questions were discussed under this

6 Bitzan v. Parisi, 88 Wn.2d 116, 123, 558 P.2d 775, 778-79 (1977)



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assignment. It is first urged that error was committed in permitting a witness to testify as to complaints made by respondent a few days after the accident, relating to the nature and extent of his injuries. Such evidence is admissible under the following authorities: . . .

Also in Buell v. Park Auto Transportation Co., 132 Wash. 92, 96 231 Pac. 161 (1924),

the court said:

The fifth claim seems to have been decided by this court in the cases of Bothell v. Seattle, 17 Wash. 263, 49 Pac. 491; Peterson v. Seattle Traction Co., 23 Wash. 615, 63 Pac. 539, 68 A.L.R. 586; and Shearer v. Buckley, 31 Wash. 370, 72 Pac. 76.

The last two cases cited are more nearly in point upon this question than is the other, it being cited in both of the cases that testimony of complaints made by the injured person to another not a doctor, a few days after the injury, relating to the nature and extent of the injuries, is admissible.

G. NON-EXPERTS MAY TESTIFY AS TO PHYSICAL CONDITION OF INJURED PERSON

Lay witnesses may testify to their sensory perceptions of the physical disability of an

injured person. Furthermore, such lay testimony of symptoms persisting from the time of the

injury to the time of trial will support a damage instruction for future pain, lost earnings, and

disabilities. Such testimony will support an instruction for future damages even if that inference

is contradicted by expert medical testimony. In Bitzan v. Parisi, 88 Wn.2d 116, 121-22, 558

P.2d 775 (1977), the court said:

There is no reason laymen 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. See generally, Parris v. Johnson, 3 Wn.App. 853, 859, 479 P.2d 91 (1970); Annot., 11 A.L.R. 3d 1249 (1967). Furthermore, an injured person can testify to subjective symptoms of pain and suffering, and to the limitations of his physical movements. See S. Schriber, Damages for Personal Injuries and Wrongful Death Cases, 256-59 (1965); S. Sweitzer, Proof of Traumatic Injuries,



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Sec. 565, (1961). See generally, E. Cleary, McCormick's Handbook of the Law of Evidence, 680-94 2d Ed. (1972).

Proof and pain and suffering as late as at the time of trial even though subjective in 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 even though subjective in 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. Brammer v. Lappenbusch, 176 Wash. 625, 30 P.2d 947 (1934); Suprumowski v. Brown and White Cab Co., 142 Wash. 65, 252 P. 155 (1927); Paris v. Johnson, supra; Check v. Meredith, 243 Ark. 498, 420 S.W. 2d 866 (1967); Arkansas Drilling Co. v. Gross, 179 Ark. 631, 17 S.W.2d 889 (1929); Loper v. Morrison, 23 Cal. 2d 600, 145 P.2d 1 (1944); Carradus v. Lange, 203 N.W. 2d 565 (Iowa 1973); Nelson v. Tworoger, 256 Ore. 189 472 P.2d 802 (1970); Annot., 18 A.L.R. 3d 10 (1968); cf. Carr v. Martin, 35 Wn.2d 753, 759-60, 215 P.2d 411 (1950).

In cases such as these the future damage instruction can be given even though there is no medical testimony (Mabrier v. A.M. Servicing Corp., 161 N.W. 2d 180, 183 (Iowa 1968)), or even if the medical testimony is contrary to plaintiff's testimony of continued pain. Jones v. Allen, 473 S.W.2d 763 (Mo. App. 1971).

V. PRE-ACCIDENT INJURIES/CONDITIONS

On May 20, 2005, Plaintiff was involved in an automobile collision accident wherein he

received stitches to his head and was required to wear a cervical collar for a small period of time.

Plaintiff did not sustain permanent injury as a result of that accident, was asymptomatic at the

time of the accident which is the subject of this litigation, and Defendant has not alleged any

residual injury from the 2005 accident.

A. EVIDENCE OF PRIOR UNRELATED INJURY OR MEDICAL TREATMENT IS INADMISSIBLE AND IRRELEVANT



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Defendant should not be permitted to refer to or seek for admission of Plaintiff's medical

records pre-dating the incident at issue. These records are not relevant and the prejudice of said

records out weighs any probative value for numerous reasons.

First, it is anticipated that defense counsel will utilize the sheer volume of Plaintiff's

medical records in order to portray the Plaintiff as merely a complainer who seeks medical

attention at the slightest hint of a problem. Such an inference would only result in misleading the

trier of fact and is not supported by any substantive evidence.

Second, it is anticipated that the Defendant, through medical records, a medical expert, or

argument, will attempt to prove that Plaintiff's symptoms stem from an aggravation of a

previously existing condition, inferring that Plaintiff’s neck and back complaints were

symptomatic before the 2008 incident. It is also anticipated that Defendant's medical expert,

records or argument will indicate that Plaintiff's condition existed prior to the incident at issue.

Such testimony would be based purely on speculation as there are no medical records or

other evidence which would tend to support such testimony. The Plaintiff's injuries include neck

and back pain. Although Plaintiff did once complain of neck pain, these complaints resolved

after a brief period of treatment and/or time. In addition, it appears that at no time between the

2005 and 2008 accidents had x-rays or other tests been performed indicating the neck pain. It

was not until following the accident that this diagnosis was first obtained.

In Vaughan v. Bartell Drug Company, 56 Wn.2d 162, 351 P.2d 925 (1960), there was

evidence that a plaintiff had suffered injury of the same type and in the same location as the

injury previously suffered. In Vaughan, as in this case, there was no evidence that the pre-

existing injury was aggravated or symptomatic at the time of the injuries forming the subject of

the lawsuit. Vaughan held that it would be irrelevant and speculative to admit evidence of the



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previous injury. In Irrigation and Dev Co. v. Sherman, 106 Wn.2d 685, 724 P.2d 997 (1986),

our Supreme Court reiterated the misleading and improper effect of such speculation.

Sherman was involved in two rear-end collisions after his 1972 industrial accident. Dr. Bridgeford, Sherman's medical witness, testified that these accidents had no effect on Sherman's low back condition but may have resulted in some injury to his neck and upper back. Respondent's counsel asked Dr. Bridgeford and Dr. Monk, Sherman's other medical witness, whether automobile accidents or other trauma could also aggravate the pre-existing low back condition.

Because no showing was made that Sherman's subsequent auto accidents had any effect on his disability, respondent's questions were misleading. Such questions improperly suggested to the jury that there may have been a superseding cause of Sherman's condition although no proof of such a cause is in the records. (emphasis added) Id. at 691.

Our court in Greenwood v. Olympic, Inc., 51 Wn.2d 18, 315 P.2d 295 (1957), a case

involving the absence of any evidence that a pre-existing bodily condition was symptomatic

before the tortious injury, held it an error to allow a jury to speculate that a pre-existing condition

was symptomatic. As a general rule, "an expert opinion must be based upon facts in the case and

not upon conjecture and speculation.7"

B. PRIOR CONDITION NOT CAUSING PAIN WHICH IS AGGRAVATED RESULTS IN FULL RECOVERY

If an existing condition is not causing a person pain, suffering or disability and as a result

of injuries aggravated and made to cause pain, suffering or disability then the plaintiff is entitled

to recovery of 100% of the problem caused. In Bennett v. Messick, 76 Wn.2d 474, 478, 457

P.2d 609 (1969), the court said:

The rule is that when a latent condition itself does not cause pain, suffering or disability, but that condition plus an injury brings on pain or disability by aggravating the pre-existing condition and making it active, then the injury, and not the dormant condition, is the proximate cause of the pain and disability. Thus, the party at fault is held for the entire damage as a direct result of the accident.8

7 Clements v. Blue Cross of Wash. and Alaska, Inc., 37 Wn.App. 544, 549, 682 P.2d 942 (1984)8 Bennett, at 478-9.



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VI. POST-ACCIDENT INJURIES/CONDITIONS

Plaintiff was receiving chiropractic treatment for the accident which is the subject of this

litigation when he was the victim of a car jacking. On June 20, 2008, two months after his auto

accident, Plaintiff was driving the same vehicle involved in this litigation when three assailants

carjacked the Plaintiff and a passenger at gunpoint. One assailant jumped in the back seat of the

driver’s side and grabbed Mr. Olson by the throat from behind, wrapping his arm around his

neck and pinning his head and neck against the headrest in a choke hold. Authorities

investigating the accident noted Mr. Olson suffered from several minor scratches to the front of

the neck, lower and middle back pain accompanied by headache and nausea.

Defendant is claiming she is not responsible for the treatment for injuries provided by Dr.

Todd O’Mealy past June 10, 2008 due to the nature of the injuries received in the car jacking

incident. Plaintiff’s medical records from a visit with Dr. O’Mealy earlier that day demonstrate

Plaintiff was well on the road to recovery and feeling much better, but not that he was fully

recovered and at maximum medical improvement. He was required to attend an additional 19

visits post carjacking ($1,978.00 of the $4,563.00 bill).

VII. ARGUMENT/AUTHORITIES/EVIDENCE/JURY INSTRUCTIONS

A. JURY INSTRUCTIONS

A jury instruction is sufficient if it: (1) correctly states the applicable law; (2) is not

misleading; and (3) allows counsel to argue their theories of the case.9

9 See Hawkins v. Marshall, 92 Wn.App. 38, 43, 962 P.2d 834 (1998); Fenimore v. Drake Constr. Co., 87 Wash. 2d 85, 95, 549 P.2d 483 (1976)



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The instructions, viewed on the whole, must "fairly and adequately represent the

evidence and applicable law in light of the issues presented to the jury in a particular case.10"

The court need not adopt the language offered by the parties but must give an "instruction

reflecting that party's theory of the case if the instruction is legally correct and there is evidence

to support it.11"

Instructions ought to be stated in logical sequence and in common speech if they are to

serve their traditional and constitutional purpose.12

A jury need be instructed on a legal theory only if the evidence adduced at trial is

sufficient to justify the instruction.13

B. EXPERT WITNESSES

Washington only requires that the doctors' testimony establish that the incident relied on

was "more likely than not" the cause of the injury claimed.

In Clevenger v. Fonseca, 55 Wn.2d 25, 32, 345 P.2d 1098 (1959), the court said:

The rule is that it must appear from medical testimony that the incident relied upon was more likely than not the cause of the injury claimed.

The competency of an expert to testify is addressed to the sound discretion of the trial

judge.14 The rules of evidence are liberal regarding expert testimony. ER 702 is the basic rule

governing testimony by experts. It provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact and issue, a witness qualified as an expert by knowledge, skill,

10 Klisch v. Meritcare Med. Group, Inc., 134 F.3d 1356 (8th Cir.1998)11 Essco Geometric v. Harvard Industries, 46 F.3d 718, 25 U.C.C. Rep. Serv. 2d 661 (8th Cir. 1995)12 Tyler v. Dowell, Inc., 274 F.2d 890 (10th Cir. 1960)13 Foster v. Ford Motor Co., 621 F.2d 715, 6 Fed. R. Evid. Serv. 306, 29 U.C.C. Rep. Serv. 455 (5th Cir. 1980), In re Torcise, 116 F.3d 860, 37 Fed. R. Serv. 3d 1416 (11th Cir. 1997)14 State v. Shaffer, 18 Wn.App. 652, 654, 571 P.2d 220 (1977)



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experience, training, or education, may testify thereto in the form of an opinion or otherwise.

ER 703 permits the expert to rely upon material facts or data which need not be

admissible. This rule permits the expert to base an opinion on facts or data reasonably relied

upon by experts in the field. The fact that such material may be inadmissible heresay does not

affect the admissibility of the opinion.15

ER 704 permits the expert to offer opinions on the ultimate issue in the case. ER 705

permits the expert to testify without prior disclosure as to the underlying facts or data relied upon

unless the judge directs otherwise.

Expert opinion may be based upon personal knowledge, previously heard testimony plus

heresay.16 An expert may additionally testify in terms of inference if, under the circumstances,

resort to inferences is necessary to convey the full import of the factual testimony.17

Qualifications of an expert witness may be practical experience rather than through

schooling.18

C. TESTIMONY OF A TREATING CHIROPRACTOR CONSTITUTES EXPERT MEDICAL TESTIMONY

It is a general rule that a chiropractor is competent to testify in personal injury action as

an expert or medical witness, concerning matters within the scope of the profession and practice

of chiropractic.19 Chiropractors provide "medical" services and are capable of providing medical

testimony on matters within their field of practice.

15 Mannino v. International Manufacturing Company, 650 F.2d 846 (6th Cir. 1981)16 State v. Ecklund, 30 Wn.App. 313, 633 P.2d 933 (1981); LeVang v. Dep't of Labor & Industries, 18 Wn.App. 13, 16, 566 P.2d 573 (1977); Thorton v. Annest, 19 Wn.App. 174, 181, 574 P.2d 1199 (1978)17 Tokarz v. Ford Motor Co., 8 Wn.App. 645, 653, 508 P.2d 137018 State v. Smith, 88 Wn.2d 639, 647, 564 P.2d 220 (1977); Palmer v. Massey-Ferguson, Inc., 3 Wn.App 508, 511, 476 P.2d 713 (1970); Ulmer v. Ford Motor Co., 75 Wn.2d 522, 534, 452 P.2d 729 (1969)

19 52 A.L.R. 2d 1384



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In Brown v. Lawrence, 632 So.2d 462 (Ala.1994), the chiropractor who treated the

plaintiff for injuries suffered in an automobile accident with the defendant was allowed to testify,

apparently without objection on these particular points, that "the injury from the accident

exacerbated his pre-existing back condition," and that the plaintiff's "cartilage [was] scarred from

the accident and … would probably trigger recurring pain." Id. at 464. See also, e.g., Mississippi

Farm Bureau Mut. Ins. Co. v. Garrett, 487 So.2d 1320 (Miss.1986) and Badke v. Barnett, 35

A.D.2d 347, 316 N.Y.S.2d 177 (2d Dep't 1970) (holding that a treating chiropractor is qualified

to give his expert opinion regarding diagnosis, causation, and prognosis of the plaintiff's injury);

Daniels v. Bernard, 270 S.C. 51, 240 S.E.2d 518 (1978) (chiropractor held competent in a

personal injury action to interpret x-rays); Eisenbach v. Downey, 45 Conn.App. 165, 694 A.2d

1376 (1997)("[C]hiropractors are competent to testify as expert medical witnesses within their

area of expertise. Thus, a chiropractor's expert opinion, as long as it is based on reasonable

probabilities rather than mere speculation or conjecture, will satisfy the requisite standard of

reasonable medical probability.")

In Loushin v. ITT Rayonier, 84 Wn.App. 113, 924 P.2d 953 (Div. 2 1996), the court

declared:

The term "medical" is defined by Black's Law Dictionary (6th ed.) as "[p]ertaining, relating or belonging to the study and practice of medicine, or the science and art of the investigation, prevention, cure, and alleviation of disease." The practice of chiropractic in Washington includes "diagnosis or analysis and care or treatment of the vertebral subluxation complex and its effects, articular dysfunction, and musculoskeletal disorders … ." (citation omitted). As part of his or her chiropractic diagnosis, a chiropractor is authorized to perform a physical examination, which may include diagnostic x-rays, to determine the appropriateness of chiropractic care or the need for referral to other health care providers. (citation omitted). Using the above definition of "medical," it is clear that chiropractors provide "medical" services and it follows that chiropractors are capable of providing medical testimony on



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matters within their field of practice. As our Supreme Court recognized, it is a "well settled general principle that a chiropractor is competent to testify as an expert or medical witness on matters within the scope of the profession and practice of chiropractic." Brannan v. Dept. of Labor & Indus., 104 Wash. 2d 55, 700 P.2d 1139 (1985).20

For other cases where chiropractors testified regarding injuries to various portions of the

body, see, Oklahoma Natural Gas Corp. v. Schwartz, 1930 OK 458, 146 Okla. 250, 293 P. 1087

(1930); Yelloway, Inc. v. Hawkins, 38 F.2d 731 (C.C.A. 8th Cir. 1930); Johnston v. Peairs, 117

Cal.App. 208, 3 P.2d 617 (1931); O'Dell v. Barrett, 163 Md. 342, 163 A. 191 (4th Dist. 1931).

D. EXHIBITS/DOCUMENTS

1. Liberal rule regarding photographs, x-rays and other documentary evidence.

In Kelly v. Spokane, 83 Wash. 55, 58, 145 Pac. 57 (1914), the court said:

We deem it pertinent, however, to say that the practice of admitting photographs and models and evidence in all proper cases should be encouraged.

It is not necessary to call the person taking the photograph to make it admissible. 21 The

same rule applies with regard to x-rays.22 A liberal rule regarding medical and other illustrations

applies in Washington.23

It is the common practice in the courts to receive private or unofficial maps, diagrams, models, or sketches for the purpose of giving a representation of objects in places which generally can not otherwise be as conveniently shown or described by witnesses, and when proved to be correct or offered in connection with the testimony of a witness they are admissible as legitimate age to the court or jury. (citations omitted)

Models, samples and other similar objects are admissible in evidence.24

20 Id. at 118-11921 State v. Tatum, 57 Wn.2d 516, 358, P.2d 120 (1961)22 Manos v. James, 7 Wn.2d 695, 110 P.2d 887 (1941)23 Spokane v. Patterson, 46 Wash. 93, 94, 89 Pac. 402 (1908)

24 State v. Gray, 64, Wn.2d 979, 395 P.2d 490 (1964)



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2. Hospital records admissible under Uniform Business Records Act.

Hospital records are admissible under the Uniform Business Records Act (RCW 5.45).

In Bradley v. Mower, 17, Wn.App. 24, 30, 560 P.2d 719 (1977), the court said:

Defendants assign error to the trial courts admission of Bradley's entire hospital records, contending that those portions of the medical records which contain nurse's progress reports, the doctor's progress reports, the various tests and the anesthesia records were inadmissible. These portions were merely records of Bradley's condition at the time such records were made and are admissible under the Uniform Business Records as Evidence Act. Defendants additionally objected to the admission of reports from other doctors on the basis that such reports were heresay opinions of experts not present at trial, and therefore not subject to cross examination. These doctor's opinions were not disputed, nor based upon speculation, nor were they opinions as to causation, but were factual information relating to acts, conditions, or events. Therefore, they were admissible within the business records exception. (Footnote omitted. Citations omitted.)

VII. CONCLUSION

As a direct and proximate cause of Defendant’s negligence, Plaintiff suffered injuries,

including but not limited to his: back; neck; sleep depravation; and loss/limitation of range of

motion. The plaintiff should recover reasonable compensation for the injuries sustained in this

collision.

Respectfully submitted this _____ day of March, 2011.

_________________________________Thomas S. Olmstead, WSBA#8170Attorney for Plaintiff

Documents

Trial Brief - 1st Draft