Wash. Court of Appeals published opinion — 850661.pdf

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existence of any fact of consequence to the determination of the action more or

less probable.

SPD’s causation arguments also fail because Washington courts generally

require expert testimony from a physician on matters “involving medical science,”

such as the “nature of the harm which may result and the probability of its

occurrence.” Street v. Weyerhaeuser Co., 189 Wn.2d 187, 198, 399 P.3d 1156

(2017) (quoting Smith v. Shannon, 100 Wn.2d 26, 33, 666 P.2d 351 (1983)); see

also Berger v. Sonneland, 144 Wn.2d 91, 110-11, 26 P.3d 257 (2001) (“Medical

facts must be proved by expert testimony unless they are observable by

laypersons and describable without medical training.”). While the defense may

attack the plaintiff’s theory of causation, it must do so using evidence that is

“relevant and probative” and expert testimony that is “based on facts in the record.”

Needham v. Dreyer, 11 Wn. App. 2d 479, 494-95, 454 P.3d 136 (2019) (citing

Colley v. Peacehealth, 177 Wn. App. 717, 721-29, 312 P.3d 989 (2013)). Dr.

Burton, the only expert who opined on Sgt. Hockett’s military exposures, dismissed

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No. 85066-1-I

them as a potential cause of his symptoms and instead attributed the cause to

sleep apnea. Sgt. Hockett himself was not qualified to opine on whether his military

exposures caused his chronic fatigue because this fact is not observable by a

layperson and not describable without medical training. See ER 701 (a non-expert

witness may only offer opinions or inferences which are “not based on scientific,

technical, or other specialized knowledge within the scope of [ER 702]”). Without

an expert to testify to diagnosis and medical causation, Sgt. Hockett’s statements