Wash. Court of App., Div. 2, Weighs In On Admissibility of Accident Reconstructionist’s Testimony

As a follow-up to our recent post on the Berryman v. Farmers Ins. Co. of Wash. case, we wanted to point out an opinion from the Washington Court of Appeals, Div. 2, released on October 29, 2013, concerning the admissibility of testimony from the same accident reconstructionist that was at issue in the Berryman case.  In Johnston-Forbes v Matsunaga, Wash. Ct. of App., Div. 2, Case No. 43078-9-II (2013), the Division 2 found that the trial court did not abuse its discretion in admitting the testimony—contrary to the opinion of Division 1 in Berryman and other cases.  The panel from Division 2 rejected the argument that the accident reconstructionist offered an unsubstantiated medical opinion when he compared the force caused by the collision to daily living activities such as walking down stairs or jogging.  Additionally, the Court determined that ER 702 did not require that the accident reconstructionist be a licensed engineer in order to offer expert testimony.  The Court of Appeals did not address whether the accident reconstruction’s testimony could be challenged under Frye v. United States, 293 F. 1013 (1923), however, because the argument was not properly preserved at the trial court.

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