Opinion
No. 31059-7-II
April 26, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 96-2-09651-8. Judgment or order under review. Date filed: 09/19/2003. Judge signing: Hon. Bryan E Chushcoff.
Counsel for Appellant(s), Terry E. Lumsden, Law Offices of Terry E Lumsden, 3517 6th Ave Ste 200, Tacoma, WA 98406.
Counsel for Respondent(s), David Mark Byers, Graham Dunn PC, Pier 70, 2801 Alaskan Way Ste 300, Seattle, WA 98121-1128.
Kent Michael Fandel, Graham Dunn PC, Pier 70, 2801 Alaskan Way Ste 300, Seattle, WA 98121-1128.
John Arthur Granger, Cozen O'Connor, 1201 3rd Ave Ste 5200, Seattle, WA 98101-3071.
Arthur J. Lachman, Attorney at Law, PO Box 65261, Seattle, WA 98155-9261.
Appellants, Adeline Ardesson, Donovan Esser, Danielle Esser, Mark Flynn, Lowell Koerner, Emmalee Koerner, Jonathan Cobb, James Cobb-Koerner, Joyce Lande, Kevin Martin, Julianna Martin, Michael Martin, and Brittany Martin, appeal from a jury verdict denying their property damage and personal injuries claims against Atlantic Richfield Co. We affirm.
The parties entered a stipulation of agreed facts, which the trial court read to the jury at the beginning of trial. On January 31, 1996, Atlantic Richfield Co. (ARCO) shipped 1.1 million gallons of home-heating oil from its Cherry Point Refinery to the Superior Oil Company terminal in Tacoma, Washington. During transit, the oil became `hazy.' Clerk's Papers (CP) at 1577. The delivery was put into the terminal's Tank Number 5, where it was added to 1.3 million gallons of fuel already in the tank.
Hazy fuel is generally caused by water becoming suspended in the fuel.
To clear the fuel's haze, IPC 3025, a commercial de-hazing agent chemical manufactured by Baker Petrolite Corporation, was added to Tank Number 5. Although IPC 3025 was not on ARCO's list of approved additives for use in refined fuels, testing revealed that it cleared the haze with no apparent side effects and the additive was immediately available while other de-hazing agents were not available for several days. ARCO added 275 gallons of IPC 3025 to Tank Number 5 on February 2, 1996, and another 55 gallons on February 5.
The plaintiffs dismissed defendants Superior Oil Co. and Baker Petrolite Corp. on the eve of trial.
At approximately midnight on February 2, Tank Number 5 was opened for sale to fuel distributors. Once the tank was reopened, it was constantly drawn down and replenished. Approximately 2.2 million gallons of new oil were added to Tank Number 5 during the month of February and about 4 million gallons were sold to homes, businesses, and other users. No additional IPC 3025 was added after February 5.
Although a certain number of furnace malfunctions can routinely be expected, in mid-February, Pacific Northwest Energy Company (PNEC), a fuel distributor, received a higher than usual number of reports of furnace shutdowns by its customers. PNEC began pumping out and refilling the tanks of its customers who had reported problems, and it contacted ARCO to determine whether there was a problem with the fuel. ARCO investigated the matter and discovered that other distributors' customers had reported similar problems.
In response, ARCO authorized all of its distributors to replace the fuel of any homeowner experiencing furnace malfunctions and to service their furnaces at its expense. At that time, ARCO was not aware of the cause of the problem. By March 4, 1996, ARCO had authorized its distributors to pump out and refill the tanks and service the furnaces of all homes that had received its oil between February 3 and February 19, regardless of whether these customers had reported any furnace problems. In addition, it hired additional furnace contractors to provide follow-up service after the pump out. ARCO issued a press release alerting the public of the recall, and it later expanded the recall period to include all homeowners who had received its fuel between February 2 and February 26.
In all, ARCO pumped fuel from more than 10,000 tanks, including the tanks of these plaintiffs/appellants. It retained over 200 samples of the additized fuel, many of which were tested, but it did not collect samples from the appellants' tanks. After the recall, ARCO determined that the additized fuel had caused some furnaces to malfunction, and on March 16, 1996, it shut down Tank Number 5 and drained the remaining oil from the tank. It resold some of the oil as industrial grade fuel.
Hereinafter referred to as appellants.
In May, 1998 by sixth amended complaint, numerous plaintiffs filed a single lawsuit against ARCO in Pierce County, Washington, alleging class and individual personal injury and property damage claims. The class claim involved alleged damage to home oil storage tanks, resulting in summary judgment on certain of the plaintiffs' claims and a jury verdict for ARCO on others' claims. The appellants have not appealed this verdict.
In September 2001, the court entered an agreed order establishing a procedure for randomly selecting plaintiffs for jury trials on the individual claims. Each trial was to determine 20 to 24 individual claims from 5 to 10 plaintiff households. Appellants' trial was set for May 2003.
Trial was scheduled for the first set of plaintiffs in November 2002; appellants formed the second set of plaintiffs.
Prior to trial, appellants moved for summary judgment, seeking a determination that the ARCO fuel they had received was defective as a matter of law. Additionally, appellants requested that the court permit them to argue that ARCO had spoliated evidence by failing to retain fuel samples from their homes after the recall and pump out of their tanks.
In its response papers, ARCO submitted a declaration by Kerry Willis, who was the incident commander in charge of the fuel recall. Willis testified that because the recall occurred during the winter, ARCO's primary goal was to pump and refill the tanks of its customers so that they would have functioning furnaces as quickly as possible. ARCO sought to `maximize [its] pumping and servicing capabilities' by having trucks pump out 5 to 10 tanks on each trip and collect multiple loads each day. CP at 1239.
Willis further testified that ARCO pumped out the tanks of over 10,000 residences and that if it had segregated and separately maintained the contents of each tank, `the recall itself would have ground to a halt.' CP at 1239. Additionally, he stated that ARCO did not have the capability to segregate and maintain thousands of samples and that the cost of increased truck travel time, storage, and the logistics of collecting the samples would have been `enormous.' CP at 1239. However, ARCO did collect many samples on a random basis, primarily from homeowners who had reported furnace problems. Willis concluded that ARCO believed that the samples it had collected provided a `reasonably representative array of what was out in the field and permit[ted] subsequent investigation of the cause of the incident.' CP at 1240. Appellants did not examine or test any of these samples.
The trial court granted appellants' motion in part, holding that `diesel fuel pulled from Superior Oil Tank Number 5 that contained additive (the `subject fuel') was defective.' CP at 411 (emphasis added). The court rejected appellants' contention that ARCO had spoliated evidence but it permitted them to argue that they were unable to test their fuel because ARCO had pumped it out and failed to preserve it and that the fuel was pumped out because it was defective.
In addition, ARCO moved to exclude or limit testimony under ER 703 on causation of appellants' personal injuries by medical expert, Carl Brodkin, M.D., director of the occupational and environmental residency program at the University of Washington. ARCO did not contend that Dr. Brodkin was not qualified to testify as an expert; rather it argued that his diagnoses were unreliable because he based them solely on appellants' own `SELF-SERVING STATEMENTS' regarding their injuries. CP at 925.
Some time after appellants filed a claim against ARCO, their counsel provided them with an `ARCO Litigation' questionnaire to fill out. CP at 1327. The questionnaire asked them how many hours per day they spent inside their homes during the exposure period; what health problems and physical symptoms they developed that could have been caused by the exposure; whether these symptoms became worse when they left the house; and when their symptoms ceased, if at all. Additionally, the questionnaire asked general health questions, such as whether appellants smoked, drank, had allergies or asthma, etc., and it provided an area for them to check boxes indicating specific symptoms that they had experienced. Examples of symptoms included the following: red, itchy, or puffy eyes; discomfort with contact lenses; nosebleeds, runny nose, or other sinus problems; dry, scratchy, or sore throat; wheezing, coughing, chest tightness, or other breathing problems; unusual tastes or dry mouth; dry, flaky, or itchy skin; indigestion, nausea, vomiting, diarrhea or other stomach problems; flu-like symptoms; anxiety, sleeplessness, exhaustion, or depression; and headache.
The record does not indicate the date that these questionnaires were filled out, but it is clear that they were given to appellants before they hired Dr. Brodkin as an expert.
In 2003, Dr. Brodkin issued appellants another questionnaire and a household summary sheet inquiring about their symptoms during the exposure period, in addition to directly interviewing them. During the interviews, Dr. Brodkin questioned appellants about their symptoms and about their current state of health. In addition, Dr. Brodkin physically examined the appellants. The examinations of at least six appellants revealed no current physical symptoms similar to those reported in their questionnaires. In addition, none of these six appellants saw a physician in 1996 for his or her reported symptoms.
These six appellants were Kevin Martin, Lowell Koerner, Jonathan Koerner, James Cobb-Koerner, Emmalee Koerner, and Donovan Esser. See CP 1273, 1277, 1406, 1408, 1410. Dr. Brodkin did not interview or examine James Koerner.
In evaluating the appellants' medical injuries, Dr. Brodkin also considered affidavits that they filed, detailing their symptoms and exposure to the fuel; their interrogatory responses; review of the Material Safety Data Sheets (MSDS) for ARCO fuel and IPC 3025; and environmental reports relating to ARCO fuel additized with IPC 3025. Based on this information, Dr. Brodkin diagnosed these appellants' symptoms and determined that a causal relationship existed between their injuries and the chemical exposure in their homes.
At the ER 104 hearing, Dr. Brodkin detailed his methodology in assessing the appellants' injuries. He testified that he considered the following factors: whether there was a temporal association between the appellants' symptoms and the exposed chemicals; whether alternative explanations existed for their symptoms; whether biological evidence supported a relationship between their symptoms and the exposure; his direct interviews and physical examinations of appellants; the medical and environmental history detailed by appellants; a review of their medical records; occupational medicine treatises; and his personal experience. Dr. Brodkin further testified that he `believe[d]' that this methodology was accepted in the scientific community for identifying and diagnosing toxic tort exposures and that it `certainly is my methodology in clinical practice.' Report of Proceedings (RP) (May 5, 2003) at 25. But during his deposition, Dr. Brodkin testified that he had never diagnosed a patient in his clinical practice based only on information from a questionnaire.
The trial court granted ARCO's motion in part, holding that Dr. Brodkin could not testify that the exposure caused these six appellants' symptoms. In so holding, the court determined that Dr. Brodkin's methodology was not sufficiently reliable or trustworthy because these appellants were not examined at the time of the exposure, nor did their current physical examinations reveal any physical symptoms similar to those reported in their questionnaires and affidavits.
The court further explained:
So they say they were ill, but [Dr. Brodkin] doesn't really know that they were except that they said they were. And then what illness they contracted, he doesn't know really because there is no examination at the time by a doctor or him. Because, as I say, the symptoms of a respiratory problem, for instance, could be the same as a cold.
Dr. Brodkin testified that the symptoms of environmental diseases frequently appear no different from those of non-environmental illnesses, such as a cough or sinus congestion.
RP (April 25, 2003) at 35. It concluded that Dr. Brodkin was entitled to rely on patient history, i.e., reports by appellants, in making his diagnoses, but that `there has to be more to it than patient history.' RP (May 6, 2003) at 25.
Dr. Brodkin was permitted to testify concerning causation as to seven other plaintiffs who had physical examinations at the time of exposure. Thus, the only fact that was prohibited from testimony regarding these appellants was causation.
Dr. Brodkin was permitted, however, to opine as to the general effects of exposure to diesel exhaust, the specific symptoms suffered by many of the plaintiffs, and the alleged causal link between those symptoms and the plaintiffs' furnace malfunctions. The court also ruled that the plaintiffs themselves could testify regarding their symptoms and their beliefs that these symptoms were caused by the chemical exposure. Thus, the only limitation on Dr. Brodkin was that as to 6 of the 13 plaintiffs, he could not opine that the exposure caused their symptoms.
Trial commenced as scheduled on May 5, 2003. On June 6, appellants submitted their proposed jury instructions. Their proposed instruction 4 stated: `[t]he Court has determined as a matter of law that the ARCO diesel fuel in Time/Superior Oil Tank #84205 (also referred to as tank #5) was defective. That determination is not an issue for the jury to consider.' CP at 226. On June 11, appellants submitted revised instructions; proposed instruction 2 stated: `[t]he Court has determined as a matter of law that ARCO diesel fuel in Time/Superior Oil tank #84205 (also referred to as tank #5) additized with IPC 3025 was defective. That determination is not an issue for the jury to consider.' CP at 285.
The trial court rejected appellants' instructions and instead gave instruction 5, which stated: `[t]he Court has determined as a matter of law that ARCO diesel fuel in Time/Superior Oil Tank #84205 (also referred to as Tank 5), to the extent that it contained IPC 3025, was defective. That is not an issue for the jury to consider.' CP at 337 (emphasis added). Appellants objected, and at a hearing on the matter, argued that the court should adopt their initial proposed instruction 4 because the court's instruction 5 contradicted its previous summary judgment ruling that ARCO's fuel was defective. The court denied appellants' request, holding that its instruction 5 was in accord with its previous ruling. On June 13, the jury entered a verdict for ARCO.
I. Jury Instruction
Appellants first contend that the trial court erred in giving its jury instruction 5. Specifically, they argue that the instruction violated the `law of the case' i.e., that the ``subject fuel' was defective,' and that it suggested that they were required to prove `the precise amount' of IPC 3025 contained in their fuel. Br. of Appellant at 12-13. These arguments are without merit.
We review jury instructions for an abuse of discretion. Wlasiuk v. Whirlpool Corp., 81 Wn. App. 163, 177, 914 P.2d 102, 932 P.2d 1266 (1996). Additionally, we review jury instructions in their entirety and find them sufficient if they permitted each party to argue its theory of the case, were not misleading, and when read as a whole, properly informed the trier of fact of the applicable law. Capers v. Bon Marche, 91 Wn. App. 138, 142, 955 P.2d 822 (1998), review denied, 137 Wn.2d 1002 (1999).
Assuming, without deciding, that the `law of the case' doctrine applies in this case, the trial court's instruction 5 did not contradict its previous ruling on summary judgment. While the court did find that the `subject fuel' was defective, it defined this phrase as the `diesel fuel pulled from Superior Oil Tank Number 5 that contained additive.' CP at 411. The court did not find, as appellants suggest, that all fuel from Tank Number 5, whether or not it contained IPC 3025, was defective. The court's intent is clear from its statements during the summary judgment hearing that `[t]he plaintiff still has to prove they [sic] received it [fuel containing IPC 3025], plaintiff still has to prove causation.' RP (April 18, 2003) at 67-68.
Indeed, throughout the litigation, the parties disputed whether appellants had received fuel containing IPC 3025. During litigation involving the first set of plaintiffs, ARCO and other named defendants moved for summary judgment, arguing that the plaintiffs could not prove that they had received fuel containing IPC 3025. The court denied the motion, finding that the jury could infer circumstantially that the plaintiffs had received tainted fuel because they had received it from a tank to which IPC 3025 had been added and subsequently experienced furnace problems.
ARCO asserted a stratification theory, arguing that some areas of Tank Number 5 did not contain IPC 3025. During opening arguments, appellants' counsel told the jury that the IPC 3025 mixed with the fuel more like `vinegar and oil' than `cream and coffee.' RP (May 8, 9 and 12, 2003) at 23-24.
And at a May 2003 hearing involving appellants' claims, the court further explained its reasoning in denying their summary judgment motion stating,
[M]y view is that there's a fact here. The jury can choose to believe that they got it [fuel containing IPC 3025] or did not get it. But I don't believe I can make the decision for them. . . .
. . . I don't have a legal basis to direct that they have to believe that your people got it simply because it came from that tank.
RP (May 6 and 7, 2003) 200-01. In response, appellants' counsel stated, `we're back to if we can win a case on circumstantial evidence, we don't have to have direct proof. I guess I've got to live with this.' RP at 200-01.
In accord with the court's previous determination on summary judgment, its instruction 5 stated that `ARCO diesel fuel in Time/Superior Oil Tank #84205 (also referred to as Tank 5), to the extent that it contained IPC 3025, was defective.' CP at 337 (emphasis added). Thus, both the court's ruling on summary judgment and its instruction 5 qualified that `defective' fuel for purposes of this case meant only fuel containing IPC 3025.
Appellants also argue that the court's instruction 5 was misleading because it suggested that they were required to prove the actual concentration or amount of IPC 3025. To support this contention, they cite a portion of a juror's post-trial declaration. But ARCO moved to strike this declaration at appellants' motion for a new trial and the trial court refused to consider this portion of the declaration, finding that it attested to matters inhering in the verdict. Because appellants do not assign error to this ruling, we do not consider the declaration.
The relevant language from the declaration states:
The jurors discussed why we did not have any of the six families [sic] samples to analyze for the additive. The jury instruction given to use by the court regarding the burden of proof of the plaintiff to prove the fuel was defective `to the extent of the presence of the additive' made it fairly easy to decide the plaintiffs had not sustained their burden of proof on why the furnaces failed.
CP at 690.
Moreover, a common sense reading of the instruction i.e., `to the extent that [the fuel] contained additive,' leaves no room for an interpretation that appellants were required to prove the precise amount of IPC 3025 in their fuel. Rather, this language is non-specific, asking only that they show that some additive was present. Semantically, the language of the instruction (to the extent it contained additive, the fuel was defective) is the functional equivalent of a statement that `if the fuel contained additive, then it was defective.' Accordingly, the instruction is not misleading and the trial court did not abuse its discretion.
II. Spoliation
Appellants next assert that the trial court abused its discretion in denying their claim of spoliation. Because ARCO failed to retain fuel samples from their tanks, appellants argue that they were entitled to an evidentiary presumption or inference that this evidence would have been unfavorable to ARCO. We disagree.
Spoliation is the intentional destruction of evidence. Black's Law Dictionary 1437 (8th ed. 2004). Washington law treats spoliation as an evidentiary matter; to remedy spoliation, we may apply a rebuttable presumption that shifts the burden of proof to a party who destroys or alters important evidence. Marshall v. Bally's Pacwest, Inc., 94 Wn. App. 372, 381, 972 P.2d 475 (1999); Henderson v. Tyrrell, 80 Wn. App. 592, 605, 910 P.2d 522 (1996). In Marshall, we noted that `[o]f the few Washington cases that directly address spoliation, the most prominent is Pier 67, Inc. v. King County, 89 Wn.2d 379, 573 P.2d 2 (1977).' Marshall, 94 Wn. App. at 381.
In that case, our Supreme Court held:
[W]here relevant evidence which would properly be a part of a case is within the control of a party whose interests it would naturally be to produce it and he fails to do so, without satisfactory explanation, the only inference which the finder of fact may draw is that such evidence would be unfavorable to him.
Pier 67, Inc., 89 Wn.2d at 385-86.
We review a trial court's determination regarding spoliation for an abuse of discretion. Henderson, 80 Wn. App. at 604. A trial court abuses its discretion when its decision is manifestly unreasonable, or is based on untenable grounds or reasons. Will v. Frontier Contractors, Inc., 121 Wn. App. 119, 128, 89 P.3d 242 (2004). In determining whether to apply a rebuttable presumption, we consider (1) the potential importance or relevance of the missing evidence and (2) the culpability or fault of the adverse party. Marshall, 94 Wn. App. at 381.
A. Importance of the Evidence
In Marshall, the four-year delay between the plaintiff's injury and the plaintiff's request to inspect a treadmill that was ultimately destroyed was critical to our decision precluding a spoliation presumption. Marshall, 94 Wn. App. at 382. We stated, `Marshall had ample opportunity to obtain the evidence she now claims is essential to her case.' Marshall, 94 Wn. App. at 382. Likewise, in Henderson, the court stated that the defendant should not `bear the burden' of the plaintiffs' failure to inspect a car during the two years after their accident. Henderson, 80 Wn. App. at 611.
Here, in September 2001, ARCO offered appellants the fuel samples it had taken during the recall but they did not examine or test them. ARCO contends that, as in Marshall and Henderson, appellants `passed up opportunity after opportunity to secure and test the substantial evidence that was available to them' and, consequently, they `should not be permitted to claim that the missing fuel was important when they failed to pursue samples and testing of the substantial material available to them.' Br. of Resp't at 27-29. But none of the samples were taken from the appellants' fuel; these samples did not reveal whether IPC 3025 was present in their fuel. Thus, while these samples may well have been relevant to appellants' case, unlike the treadmill in Marshall and the car in Henderson, they would not have provided direct evidence of causation. Consequently, we reject this line of reasoning.
Nevertheless, the import of samples of appellants' fuel to their case is not entirely clear. The fuel samples presumably would be useful only if appellants could actually test for the presence of IPC 3025, and they have presented no evidence that they possessed this capability. Further, in an April 2003 declaration, Peter Loftus, D. Phil., the project manager for the investigation of ARCO's recalled fuel in February 1996, testified that measuring the concentration of IPC 3025 in a given sample of fuel `was not an easy task' because IPC 3025 `contains extremely high molecular weight polymers that cannot be detected by equipment that would typically be used to analyze components of a fuel sample.' CP at 1233-34. He further testified, `I am not aware that plaintiffs have the capability or have attempted to develop a method to measure concentrations of IPC 3025 in mixtures of fuel and additive.' CP at 1234.
Finally, in weighing the importance of the missing evidence, we consider whether its loss or destruction has resulted in an investigative advantage for one party over another, or whether the adverse party was afforded an adequate opportunity to examine the evidence. Henderson, 80 Wn. App. at 607. Here, neither party had an opportunity to examine samples of appellants' fuel it was `destroyed' the moment it was commingled with the next household's fuel during a pump-out trip. This fact, coupled with the questionable investigative value of the fuel samples, supports the trial court's decision.
B. ARCO's Culpability
In examining culpability, we examine `whether the [adverse] party acted in bad faith or whether there is an innocent explanation for the destruction.' Marshall, 94 Wn. App. at 382. Here, ARCO presented Willis' uncontroverted testimony that ARCO's primary goal was to pump and refill the tanks of its some 10,000 customers so that they would have functioning furnaces as quickly as possible. In order to maximize its pumping and servicing capabilities, ARCO had trucks pump out the tanks of 5 to 10 households on each trip and collect multiple loads each day. Willis further testified that if ARCO had segregated and separately maintained the contents of each tank, the recall `would have ground to a halt.' CP at 1239. He also stated that ARCO lacked the capability to segregate and maintain thousands of samples and that the costs associated with collecting individual samples would have been `enormous.' CP at 1239. This evidence supports the trial court's determination that ARCO did not act in bad faith by failing to collect samples from each household, including appellants'.
Another important consideration in evaluating culpability is whether the adverse party violated a duty to preserve the evidence. Henderson, 80 Wn. App. at 610. Appellants do not contend that ARCO had a statutory or regulatory duty to preserve fuel samples. Rather, they assert that after pumping the fuel, ARCO had an ``obligation' to preserve enough of the fuel for testing (at least from the homes that experienced furnace malfunction) and to provide samples to the Plaintiffs early enough and in enough quantity to permit the Plaintiffs to run their own tests.' Br. of Appellants at 18. To support this contention, they cite Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 72-73 (S.D.N.Y. 1991) (holding that the obligation to preserve evidence arises even prior to the filing of a complaint where a party is on notice that litigation is likely).
But again, a party seeking a spoliation inference must show that the adverse party failed to preserve the evidence in bad faith. Henderson, 80 Wn. App. at 609 (holding that the reason for a bad faith requirement Sderives from the evidentiary inference that spoliation creates; unless there was bad faith, there is no basis for `the inference of consciousness of a weak cause'') (quoting 2 John W. Strong, McCormick on Evidence sec. 265, at 192 (4th ed. 1992)). Appellants argue that ARCO could reasonably foresee that litigation would result from the recall and that it would not have taken `exceptional measures' to preserve samples of the oil from homes that had reported furnace failures, but they offer no evidence contradicting Willis' testimony regarding the enormity of the costs and logistics of such an endeavor. Br. of Appellant at 19. In light of the fact that ARCO did retain over 200 random samples, primarily from homeowners who had reported furnace problems and which it believed provided a `reasonably representative array of what was out in the field and permit[ted] subsequent investigation of the cause of the incident'; and that appellants did not obtain samples of their own fuel prior to the pump-out or request samples during the pump-out; and Willis' testimony, the trial court did not abuse its discretion in denying their request to argue spoliation to the jury. CP at 1240.
The Henderson court noted that an adverse party's disregard of an informal request by another party prior to the commencement of litigation could be viewed as an indication of bad faith where the parties were aware that litigation was anticipated. Henderson, 80 Wn. App. at 611, n. 7.
III. Dr. Brodkin's Testimony
Appellants also contend that the trial court erred by refusing to permit Dr. Brodkin to testify regarding causation of the six-denoted appellants' health-related symptoms. They argue that under Washington law, a physician may rely on the statements of the patient and his or her relatives in making a diagnosis and, consequently, the trial court should have deferred to Dr. Brodkin's opinion as to what data was reasonably reliable in his determination. In sum, appellants argue that `[t]he lack of a particular type of evidence as the foundation of Dr. Brodkin's opinions should have gone to the weight, and not the admissibility of Dr. Brodkin's testimony.' Br. of Appellant at 30. In response, ARCO argues that Dr. Brodkin's reliance on appellants' self-serving statements regarding their symptoms, without any objective corroboration, was improper because such statements made in preparation of litigation are `inherently unreliable.' Br. of Resp't at 35. To support this contention, it cites In re Agent Orange Prod. Liab. Litigation, 611 F. Supp. 1223 (E.D.N.Y. 1985), aff'd, 818 F.2d 187 (2nd Cir. 1987), cert. denied sub nom., Lombardi v. Dow Chem. Co., 487 U.S. 1234 (1988). ARCO is correct.
Trial courts have wide discretion in ruling on the admissibility of expert testimony. Miller v. Likins, 109 Wn. App. 140, 147, 34 P.3d 835 (2001). We will not disturb the trial court's ruling ``[i]f the reasons for admitting or excluding the opinion evidence are both fairly debatable.'' Miller, 109 Wn. App. at 147 (quoting Davidson v. Mun. of Metro. Seattle, 43 Wn. App. 569, 572, 719 P.2d 569, review denied, 106 Wn.2d 1009 (1986)).
Under ER 703, where an expert, in forming his or her opinion, relies on facts or data that would be inadmissible in evidence, the information must be `of a type reasonably relied upon by experts in the particular field.' The phrase `reasonably relied upon' gives the court a measure of discretion in determining whether the underlying information is sufficiently trustworthy to serve as the basis for the expert's opinion. 5B Karl B. Tegland, Washington Practice: Evidence Law and Practice sec. 703.5, at 214 (4th ed. 1999). In addition, an expert's opinion must have an adequate factual basis: `conclusory or speculative expert opinions lacking an adequate foundation will not be admitted.' Miller, 109 Wn. App. at 148 (citing Safeco Ins. v. McGrath, 63 Wn. App. 170, 177, 817 P.2d 861 (1991), review denied, 118 Wn.2d 1010 (1992). Tegland notes that courts often blur the distinction between these two rules or regard them as two rules that yield the same result. Tegland, sec. 703.9, at 225.
In In re Agent Orange, a leading case on expert medical opinions in toxic tort cases, Judge Weinstein evaluated the admissibility of expert medical opinions that were based on affidavits and symptom checklists submitted by the plaintiffs, describing their exposure to the herbicide Agent Orange during their military service in Vietnam. In re Agent Orange Prod. Liab. Litigation, 611 F. Supp. at 1235, 1238. The experts also considered the plaintiffs' medical histories, epidemiological studies, and literature on the biomedical effects of Agent Orange. In re Agent Orange, 611 F. Supp. at 1235, 1238.
Judge Weinstein excluded the two experts' testimony because neither had based his conclusions on actual observations of the plaintiffs; rather, `each one relied almost wholly upon the specific anecdotal written information supplied by the plaintiffs and upon general studies and literature.' In re Agent Orange, 611 F. Supp. at 1243. He reasoned:
Though courts have afforded experts a wide latitude in picking and choosing the sources on which to base opinions, Rule 703 nonetheless requires courts to examine the reliability of those sources . . .
Here we have statements of problems ranging from baldness to the most serious cancers. It verges on the absurd to use affidavits . . . to determine both disease and cause. While courts allow reliance on patient statements, they are based upon a personal history corroborated by medical records, a physical examination and medical tests.
In re Agent Orange, 611 F. Supp. at 1244, 1246.
Judge Weinstein concluded that hearsay checklists or affidavits, without any independent verification, are not material that experts in the medical field would reasonably rely upon to reach a conclusion with respect to the cause of a patient's afflictions. In re Agent Orange, 611 F. Supp. at 1246. In short, he found that the plaintiffs were not qualified to determine the nature and cause of their own afflictions and that because the affidavits and checklists were prepared in gross for litigation, the inducement to candor with a physician the hope of a diagnosis and treatment was lacking. In re Agent Orange, 611 F. Supp. at 1247.
As in In re Agent Orange, Dr. Brodkin based his diagnosis of both disease and cause solely upon statements made in preparation for litigation by these six appellants in their affidavits, questionnaires, answers to interrogatories, and interview; the appellants' symptoms were not noted and diagnosed by a physician in 1996, nor was Dr. Brodkin able to discern any reported symptoms during their 2003 physical. And while Dr. Brodkin testified that he also considered biological evidence related to their symptoms, the existence of a temporal relationship between the appellants' symptoms and the exposure, alternative explanations for their symptoms, and medical literature, this information was useful in providing a reliable diagnosis only if he had also determined that the appellants' did indeed suffer from their reported symptoms and had diagnosed their injuries in a reliable manner.
Nevertheless, appellants argue that in Washington, questionnaires filled out by plaintiffs have been `identified as a scientific method of the type relied upon by experts in the field' and that trial courts must defer to an expert's opinion as to what data he or she finds reasonably reliable. Br. of Appellant at 26. To support this contention, they cite Bruns v. PACCAR, Inc., 77 Wn. App. 201, 890 P.2d 469 (1995) (air sampling, chemical analysis, clinical examinations, and questionnaires were scientific methods of the type relied by experts in the field in a toxic exposure claim), review denied, 126 Wn.2d 1025 (1995); and Tegland, sec. 703.5, at 209 (a physician may base a diagnosis on numerous sources, including statements by the patient and relatives, reports and opinions by nurses, hospital records, laboratory reports, ex-rays, etc.) (the proponent of the expert testimony may establish the necessary foundation by the expert's own testimony), at 213 (an opinion based on subjective symptoms is admissible).
Of course a physician may rely on medical questionnaires and statements by a patient describing his or her subjective symptoms. But a trial court must still evaluate whether such reliance was reasonable and whether the statements were trustworthy. Tegland, sec. 703.5, at 213. And no case or treatise cited by appellants suggests that an expert may base his or her opinion solely on a patient's own statements. Likewise, when a party attempts to establish foundation through the expert's own testimony, the court must also consider whether the expert's reliance on the facts was reasonable. Tegland, sec. 703.5, at 210. Here, Dr. Brodkin testified that his methodology (and the methodology he believes to be used in the scientific community) includes an evaluation of whether there was a temporal association between the appellants' symptoms and the exposed chemicals; whether alternative explanations existed for their symptoms; whether biological evidence supported a relationship between their symptoms and the exposure; his direct interviews and physical examinations of appellants; the medical and environmental history detailed by appellants; a review of their medical records; occupational medicine treatises; and his personal experience, but he did not testify that his (or the scientific community's) methodology was to make diagnoses from patient statements alone. And he testified that he had never done so in his clinical practice.
In its ruling, the trial court expressed similar concerns as Judge Weinstein in In re Agent Orange: Dr. Brodkin's mere speculation as to whether these six appellants' statements of their symptoms were accurate and trustworthy, particularly in light of the fact that they were prepared for litigation and not medical purposes, and his speculation regarding accurate diagnoses of symptoms similar to everyday illnesses like the common cold or a sinus infection where no objective evidence of appellants' symptoms was ever been observed by a physician. Thus, the court's focus was not on the lack of a particular type of evidence but on the admissibility of an expert opinion founded on inadequate factual bases. There is no question that appellants have suffered greatly; however, in light of the applicable case law and the facts of this case, we cannot say that the trial court abused its discretion in finding that Dr. Brodkin's methodology was not reliable or trustworthy.
The trial court also considered In re Paoli R.R. Yard PEB Litigation, 35 F.3d 717 (3rd Cir. 1994), cert. denied sub nom. Gen. Elec. Co. v. Ingram, 513 U.S. 1190 (1995), a Daubert case. Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). Appellants argue that the court improperly based its ruling on Daubert; however, the portion of Paoli that the trial court referred to was discussing In re Agent Orange, a pre-Daubert case. In Paoli, the court held that it agreed with Judge Weinstein's conclusion in In Re Agent Orange that `a physician who evaluates a patient in preparation for litigation should seek more than a patient's self-report of symptoms or illness and hence should either examine the patient or review the patient's medical records simply in order to determine that a patient is ill and what illness the patient has contracted.' Paoli, 35 F.3d at 762. Moreover, it is clear from the record that the trial court did not base its determination on Daubert.
As well, if there was error, it was certainly harmless:
(1) The jury was not instructed that expert testimony was necessary to establish causation (as in most medical malpractice cases), see Berger v. Sonneland, 144 Wn.2d 91, 26 P.3d 257 (2001);
(2) Dr. Brodkin was permitted to opine that the appellants experienced health problems as a result of the malfunctioning furnaces and to detail the general effects of exposure; and the appellants were permitted to testify about their symptoms and their belief that they were caused by their furnace malfunction; and
(3) The jury did not find liability as to the other seven plaintiffs for whom Dr. Brodkin testified concerning causation/proximate cause.
IV. Cumulative Error
Finally, appellants argue that they are entitled to a new trial under the cumulative error doctrine. The cumulative error doctrine applies only when several trial errors occurred which, standing alone, may not be sufficient to justify a reversal, but when combined together, may require a new trial. State v. Hodges, 118 Wn. App. 668, 77 P.3d 375 (2003), review denied, 151 Wn.2d 1031 (2004). This doctrine has no application here as appellants have not shown any prejudicial error.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, P.J. and ARMSTRONG, J., Concur.