A $1.2 million judgment against Jefferson Transit has been reversed by the state Court of Appeals because an expert witness was not allowed to testify in a jury trial and because an attorney made prejudicial comments that judges concluded led to “arguably excessive damages award.”

Port Hadlock plumber Michael Gilmore was awarded $1.2 million in 2015 after a six-day trial in Jefferson County Superior Court, seven years after a Jefferson Transit bus rear-ended him at a Port Townsend traffic light.

Jefferson Transit initially appealed that decision to Superior Court Judge Keith Harper, asking for a new trial and calling the verdict excessive. Harper denied the motion, and the transit agency appealed his decision.

Washington State Appeals Court Judge Rich Melnick issued an opinion April 25, 2017 that the trial court in Jefferson County should have allowed the testimony of Allen Tencer, an expert witness for Jefferson Transit who has a doctorate in mechanical engineering.

“By erroneously excluding Tencer’s testimony, Jefferson Transit could not present its theory of the case,” Melnick wrote. “The trial court, therefore, abused its discretion when it excluded the testimony by applying the wrong legal standard. We, therefore, conclude that excluding Tencer’s testimony constitutes reversible error requiring remand.” Melnick wrote.

A reversible error is an error that is so significant that the judgment must be reversed.

The appeals court also concluded that the superior court improperly excluded evidence about Gilmore receiving Department of Labor and Industries (L&I) payments, after Gilmore’s attorney opened the door to that information when she argued that the family was suffering financially.

The appeals court also found that Gilmore’s attorney, Sunshine Bradshaw of Seattle, had repeatedly called upon the jurors to help Gilmore “fight the government” and “hold the government accountable.”

“We, therefore, conclude that the inflammatory remarks led to an arguably excessive damages award because it incited the passion and prejudice of the jurors.”

“Although Jefferson Transit did not object to the inflammatory arguments, we conclude that the misconduct was so flagrant and ill-intentioned that no curative instruction could have ‘obviated the prejudice engendered by the misconduct,’” Melnick concluded in the 24-page decision, without naming Bradshaw.

ATTORNEY, TRANSIT REACTION

Bradshaw told The Leader she was surprised by the decision.

“It was quite strong against me personally,” Bradshaw said. “I think they got it wrong.”

Bradshaw said she would consult with Gilmore about what to do next. The options are to appeal the Division II decision to the state Supreme Court or retry the case.

“I think that we have to look at all our options and see what will be best for the client,” Bradshaw said.

She confirmed that Gilmore has not been paid any of the $1.2 million the jury awarded him in the case.

Tammi Rubert, Jefferson Transit’s general manager, said she could not comment because of the new status of the case.

Back in 2015, Rubert called the 2008 collision an anomaly, pointing to a Safety Star Award that the agency had recently received from the Washington State Transit Insurance Pool (WSTIP), which covers 25 transit agencies around the state.

Jefferson Transit is a member of WSTIP, which would bear the cost of Gilmore’s claim.

M. Jerry Spears, deputy director of WSTIP, could not be reached for comment.

INCIDENT IN 2008

The case centered around a moment on March 31, 2008 when Gilmore was in his vehicle at a stoplight and a Jefferson Transit bus that had either failed to stop or was too close, rear-ended Gilmore; or it stopped, idled for several feet and bumped into Gilmore’s van, Melnick wrote.

Gilmore’s employer, Brother’s Plumbing, did not bring a claim against Jefferson Transit for the van, and the vehicles received minimal damage, according to court documents.

Because of the accident, Gilmore began receiving L&I payments and subsequently received a $40,000 lump sum for permanent partial disability, according to court records.

At the time of the collision, Gilmore also was receiving compensation from the U.S. Department of Veterans Affairs. He had a 60 percent disability rating based on a number of conditions, including numbness in his hands and degenerative arthritis in his hips, elbows, knees and spine, the court noted.

The court also noted that when Gilmore consulted with physicians in the months after the collision, “he failed to tell them that he had experienced similar symptoms in the past.”

A doctor who examined Gilmore concluded that the numbness Gilmore was suffering was from the accident and that a magnetic resonance imaging (MRI) showed a disk herniation and lumbar strain.

Approximately three months after the accident, a private investigator hired by Jefferson Transit took video surveillance of Gilmore in physical activities, including jogging, putting a boat on a trailer and moving his “head and neck with a full range of motion,” the court justice wrote.

In 2009, Gilmore opened a plumbing business but then began suffering pain in his neck. A physician recommended surgery, but Gilmore decline it “because he would not be able to support his family if he closed his business,” the April 25 court opinion states. The physician prescribed opiates to enable Gilmore to return to work.

In 2010, a doctor again recommended surgery, but Gilmore declined, court records show.

In August 2010, Gilmore sued Jefferson Transit. The public agency admitted liability for the collision but denied causing the injuries, and a trial ensued.

Gilmore worked between 2010 and 2015, but eventually closed his business, according to court documents.

Gilmore’s attorney, Bradshaw, was asked to share with Gilmore that The Leader was doing a story about the decision and Gilmore was invited to comment. As of press deadline on Tuesday, The Leader had not heard from Gilmore.

AFTER THE VERDICT

Gilmore told The Leader in 2015 that his complaint was not about money.

“It’s more about the statement that’s made. I don’t believe anyone should go through the kind of pain I have just because they got hit, because they got rear-ended. As long as you fight and give it your best shot, the justice system can work,” he said in 2015.

“I’ve always worked, my whole life,” he said. “When this happened, it was the only time I was ever out of work. I was going nuts.”

By the summer of 2014, the pain in his neck had become so bad, he put his business on hold.

In 2015, Gilmore had two herniated disks in his neck removed and his upper spine fused together. His surgeon told him it would take at least a year to fully recover.

Although his attorney would recoup a third of his award, Gilmore told The Leader in 2015 that the money would help pay off debts incurred over the years, and possibly allow him to try other ventures, such as flipping fixer-uppers.

(Information from a 2015 Leader story is included in this report.)