IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF PIERCE
BRAEDEN SIMON,individually, Plaintiff, vs.
KELLY HOLGUIN, and SPOUSE DOE HOLGUIN, individually and the marital community composed thereof Defendants
Superior Court No. 20 2 07549 9
VERBATIM TRANSCRIPT OF PROCEEDINGS VOLUME XIII
OCTOBER 11, 2022
Pierce County Superior Court Tacoma, Washington Before the HONORABLE MATTHEW H. THOMAS
Tobiyah Abhaya, CCR, 3488 Official Court Reporter 930 Tacoma Avenue 334 County-City Bldg. Department 13 Tacoma, Washington 98402
A P P E A R A N C E S
FOR THE PLAINTIFF:
KAREN KOEHLER
Attorney at Law Stritmatter Kessler Whelan Koehler Moore 3600 15th Ave W Ste 300 Seattle, WA 98119 206.448.1777
LISA BENEDETTI
Attorney at Law Stritmatter Kessler Whelan Koehler Moore 3600 15th Ave W Ste 300 Seattle, WA 98119 206.448.1777
FOR THE DEFENDANTS:
RORY LEID Attorney at Law Cole Wathen Leid & Hall 222 Etruria Street Seattle, WA 98109 206.622.0494
LUCY WILHELM
Attorney at Law Cole Wathen Leid & Hall 222 Etruria Street Seattle, WA 98109 206.622.0494
THE COURT: Just kind of reviewing this issue. The plaintiff has moved to exclude a medical causation opinion of Dr. Tencer who has a PhD in biomechanical engineering. He is not a medical doctor. And he did not review Braeden, Mr. Simon's medical records or imaging. He did look at a chart of Mr. Simon's injuries.
The plaintiff argues that the opinion lacks a foundation and is speculative, and could mislead the jury.
The plaintiff did cite in their briefing some case law in which Johnston Forbes v. Matsunaga. In that case, the Court clarified that Dr Tencer's testimony would discuss solely biomechanics, focusing on the forces exchanged and the capacity for injury That he would not testify about whether there was injury to Johnston Forbes, and he would talk about forces and limits involved in the collision, comparing them to the activities of daily living. That case is at 181 Wn.2d 346.
In that case, the Supreme Court noted that this concession was key because Dr. Tencer lacked the appropriate expertise to testify about injuries. And it seems that in that case, there was not an attempt by the defense to give
(Herein begins the requested testimony to be transcribed.) ***
medical testimony.
Dr. Tencer repeatedly stated during his testimony that he was not testifying about Johnston Forbes' injuries, so in a sense self limiting his testimony
Plaintiff, in their briefing, argued that Dr. Tencer would be testifying regarding the necessary forces that result in an APC III injury and the corresponding force on the signpost, which caused Plaintiff's momentum to slow.
Defendant argues that the APC III injury was most likely caused by impact with the signpost and that this injury supports Mr. Simon's speed at impact that; therefore, Dr. Tencer should be allowed to testify because he has published many peer reviewed articles regarding pelvic injuries.
That Dr Tencer is an expert on pelvic injuries who has decades of experience as a biomechanical expert in impact testing And that he has done extensive workload testing of various methods of pelvic repair. That was in reference to the cadaver pelvises that he used in his testing.
The defendant said in their briefing that Dr. Tencer is not offering testimony about the extent, severity, or probability of Mr. Simon's pelvic injuries; however, they argue that Ms. Holguin has a right to present her theory to the case and allow the jury to exercise its role in weighing the evidence. And that the plaintiff will have a chance to
cross-examine Dr. Tencer.
They cite the three elements that they gave during oral argument today, that is: That the expert is qualified; that the expert relies on generally accepted theories in the scientific community; and that the testimony would be helpful to the trier of fact, citing Johnston Forbes v Matsunaga, the case I mentioned earlier, at 181 Wn.2d 346 and 352.
And in the briefing, the defendant argues that Dr. Tencer, in that case, was admitted to testify as to biomechanics on the forces exchanged and the capacity for injury.
So in looking at this, Dr. Tencer testified today during the voir dire that he had not examined medical records other than a chart exhibit that generally shows the injuries that Mr Simon has from the accident
He also apparently, from his testimony, it seems that he has not consulted with a doctor who examined Mr Simon And on the other hand, he has done studies of force, necessary to cause pelvic breaks. He's done work as a professor in orthopedics and in particular specializing in this particular area.
It seems in thinking about this, as he described how he works on things with doctors, there's usually -- it sounds like it's teamwork sort of using his biomechanical background and their medical knowledge. And it just seems that that's
one thing that's missing here is that team approach. I don't know. It just seems that that link is missing where he would normally consult with a doctor, a medical doctor, about the actual medical issue, and then they kind of team up He has his biomechanical background.
But, in this case, he did not consult with a doctor who examined Mr. Simon. And yes, he did not review the medical records. He only reviewed the chart.
On the other hand, he's very qualified to talk about force. And he's qualified to talk about the force necessary to cause an APC III injury. And I think, based on his background, he's qualified to give an opinion about the forces that it would take to break the sign. And he can discuss some of the theories that have been thrown out. For example, that was mentioned by the plaintiff, Dr Spanier's theory about the gas tank.
This sort of testimony about force and the various objects that were present at the accident scene seems to fall right within Dr. Tencer's background as a biomechanical engineer.
The one thing that's missing, though, is the medical side of it. And so I think he can't give an opinion as to the actual cause of Mr. Simon's broken pelvis, but he can talk about the force necessary to break a pelvis, and he can talk about theoretically if a pelvis were to hit that sign,
would it be enough force to break a pelvis, and if so, at what speed would the body be traveling?
That's relevant. Speed is a big issue in the case of comparative fault, and I think his testimony is relevant, and he has the background to talk about that. Just making that link to saying that this is the cause without that medical link. That's what we're missing here.
I don't think he can testify or give an opinion that this was the cause of Mr. Simon's injury, but he can certainly talk about what it takes to break a pelvis and whether or not that sign could have broken the pelvis, and he can address other theories like the gas tank, why that might not be something that would break a pelvis because that falls within his area of knowledge.
And so, that will be the order
And so, I guess, just on that ultimate issue, Mr Leid, about that this is what caused Mr Simon's broken pelvis, I think we're missing that medical side of it.
MR. LEID: I understand, Your Honor.
I have -- what I would offer is Exhibit 719. And then, I have taken out any reference linking the post to the APC III injury. I got rid of the next two pages and conclusion. And so, I'm going to be offering 719 for illustrative purposes. And I'm taking out pursuant to your Court's order --
MS. KOEHLER: I don't have an objection to the revised.
THE COURT: All right.
And it's fine because he is an expert in pelvis injuries. He can talk about, you know, would this be sufficient to break a pelvis
MR. LEID: I understand. Thank you, Your Honor.
THE COURT: And how fast would you have to be traveling if it, you know, if he hit the sign, how fast would you have to be traveling? That's relevant.
MS. KOEHLER: Your Honor, before the jury comes in, either the defense lawyer should talk to Tencer, or he should come back on. It's up to them, but my request is that this be dealt with before the jury returns.
THE COURT: That's fair
Do you need to talk with Dr. Tencer, or can you dance around it?
MR. LEID: Well, I don't want to unintentionally violate the Court's order. So I would prefer that I'm happy to tell him right here what the Court's order is.
THE COURT: All right. Let's bring him in. Do you want to talk to him alone or?
MR. LEID: No. I'm fine to expedite this if you'll let Dr. Tencer back in.
We're not on the record, hopefully.
We are, or we're not?
THE COURT REPORTER: We are.
THE COURT: We can go off.
MR LEID: That's fine
THE COURT: No, let's go off.
MR LEID: Thank you, Your Honor
(Off-the-record discussion.)
IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF PIERCE
BRAEDEN SIMON, Plaintiff, vs KELLY HOLGUIN, Defendants.
REPORTER'S CERTIFICATE
Superior Court No. 20 2 07549
STATE OF WASHINGTON ) ) ss COUNTY OF PIERCE)
I, Tobiyah Abhaya, Official Court Reporter in the State of Washington, County of Pierce, do hereby certify that the foregoing transcript is a full, true, and accurate transcript of the proceedings and testimony taken in the matter of the above-entitled cause.
Dated this 25th day of October, 2022.
Tobiyah Abhaya
TOBIYAH ABHAYA, CCR Official Court Reporter