Tiffany Kelso, Resp/cross- App V Olympia School District, App/cross-respondent

Filed
Washington State
Court of Appeals
Division Two
May 21, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
TIFFANY KELSO, individually, and as No. 48942-2-II
guardian for her daughter, G.G., a minor;
BRONSON GOUVEIA, individually; TODD Consolidated with
ADAMS, individually, and as guardian for his
daughter, A.A., a minor; JENNIFER ADAMS,
individually; KRISTEN WESTLUND,
individually, and as guardian for her daughter,
P.W., a minor,
Appellants/Cross Respondents,
v.
OLYMPIA SCHOOL DISTRICT, a public
corporation; ROBERT HODGES,
individually; WILLIAM V. LAHMANN,
individually; JENNIFER PRIDDY,
individually; FREDERICK DAVID,
STANLEY, individually; BARBARA
GREER, individually; GARY D. SHAFER,
individually,
Respondents/Cross Appellants.
TIFFANY KELSO, individually, and as No. 49092-7-II
guardian for her daughter, G.G., a minor;
BRONSON GOUVEIA, individually; TODD
ADAMS, individually, and as guardian for his
daughter, A.A., a minor; JENNIFER ADAMS,
individually; KRISTEN WESTLUND,
individually, and as guardian for her daughter,
P.W., a minor,
Appellants/Cross Respondents,
v.
No. 48942-2-II
Cons. Nos. 49092-7-II; 49272-5-II
OLYMPIA SCHOOL DISTRICT, a public
corporation; ROBERT HODGES,
individually; WILLIAM V. LAHMANN,
individually; JENNIFER PRIDDY,
individually; FREDERICK DAVID,
STANLEY, individually; BARBARA
GREER, individually; GARY D. SHAFER,
individually,
Respondents/Cross Appellants.
TIFFANY KELSO, individually, and as No. 49272-5-II
guardian for her daughter, G.G., a minor;
BRONSON GOUVEIA, individually; TODD
ADAMS, individually, and as guardian for his
daughter, A.A., a minor; JENNIFER ADAMS,
individually; KRISTEN WESTLUND,
individually, and as guardian for her daughter,
P.W., a minor,
Appellants,
v.
OLYMPIA SCHOOL DISTRICT, a public
corporation; ROBERT HODGES,
individually; WILLIAM V. LAHMANN,
individually; JENNIFER PRIDDY,
individually; FREDERICK DAVID,
STANLEY, individually; BARBARA
GREER, individually; GARY D. SHAFER, UNPUBLISHED OPINION
individually,
Respondents.
WORSWICK, J. — A.A., G.G., and P.W. (collectively “the children”), were kindergarten
students in the Olympia School District. They allege Olympia School District and its employees
(collectively “the defendants”) were negligent in allowing Gary Shafer, a pedophile, to harm
them while riding the school bus.
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No. 48942-2-II
Cons. Nos. 49092-7-II; 49272-5-II
The children appeal the trial court’s order striking evidence and granting summary
judgment in favor of the defendants. The children argue that the trial court erred when it struck
the opinions and testimony of Dr. Robert Wynne under Frye,1 granted summary judgment in
favor of the defendants, and failed to apply a spoliation inference against the defendants.
The defendants cross appeal. They argue that the trial court abused its discretion when it
denied their motion to bifurcate the proceedings of the three children.
We hold that the trial court did not err when it struck Dr. Wynne’s opinions and
testimony under Frye. Further, we hold that the trial court properly granted summary judgment
in favor of the defendants for claims relating to G.G. and P.W. However, we hold that summary
judgment was not proper for A.A.’s claims. We also hold that the children are not entitled to a
spoliation inference, and the trial court did not abuse its discretion when denying the defendants’
motion to bifurcate. Accordingly, we affirm in part, reverse in part, and remand for further
proceedings.
FACTS
Gary Shafer was employed as a bus driver for the Olympia School District from 2005 to
2011. Shafer would drive or “ride along” midday routes for kindergarten, pre-kindergarten, and
special needs students. Clerk’s Papers (CP) at 1268. In 2011, Shafer admitted to molesting
1
Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (1923).
3
No. 48942-2-II
Cons. Nos. 49092-7-II; 49272-5-II
multiple students.2 Dr. Matthew Logan, a licensed psychologist retained by plaintiffs, diagnosed
Shafer with pedophilia and frotteurism, among other things.3 Dr. Logan opined that Shafer
received sexual gratification by having children on his lap, scratching their backs, or engaging in
other nonsexual, nonconsensual touching.
I. G.G.
G.G. was a student in the Olympia School District during the 2010-11 school year. She
rode the school bus from her daycare to her kindergarten class. Shafer drove G.G.’s bus as a
substitute driver or rode on it at least six times, from the beginning of the school year to early
December 2010. T.M.C., G.G.’s friend who rode the bus with G.G., was molested by Shafer.
Shortly after T.M.C. disclosed the abuse, T.M.C.’s mother e-mailed the school stating that
T.M.C. had told her parents that Shafer also touched G.G. The school sent a letter to parents,
including G.G.’s mother, Tiffany Kelso, notifying them that Shafer had been arrested for
inappropriately touching children, but the school did not notify Kelso about T.M.C.’s mother’s e-
mail.
2
In the years following Shafer’s admissions, multiple children have brought civil actions against
the defendants for damages resulting from harm caused by Shafer. Two cases have come before
this court. K.H. for D.H. v. Olympia Sch. Dist., No. 48483-4-II (Wash. Ct. App. Aug. 22, 2017),
http://www.courts.wa.gov/opinions/pdf/D2%2048583-4-II%20Unpublished%20Opinion.pdf,
rev.denied 190 Wn.2d 1009, 414 P.3d 583 (2018); Gutierrez v. Olympia Sch. Dist., No. 44324-4-
II, (Wash. App. Ct. Dec. 10, 2014), http://www.courts.wa.gov/opinions/pdf/D2%2044324-4-
II%20Unpublished%20Opinion.pdf, rev. denied, 183 Wn.2d 1004, 349 P.3d 857 (2015).
3
According to Dr. Logan’s report, “frotteurism is characterized by a period of at least 6 months,
recurrent intense, sexually arousing fantasies sexual urges, or behaviors involving touching and
rubbing against a non-consenting person.” CP at 527.
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No. 48942-2-II
Cons. Nos. 49092-7-II; 49272-5-II
G.G.’s personality changed when she began kindergarten. She started throwing tantrums,
acting withdrawn, and isolating herself from activities. G.G. regressed in toilet training and
refused to wear any type of dress without leggings or tight fitting pants.
In 2013, Kelso learned that G.G. may have had contact with Shafer. When Kelso
questioned G.G., G.G. did not state that she had been inappropriately touched. G.G. was
subsequently interviewed by a counselor and did not state anything that led Kelso to believe
G.G. had been inappropriately touched on the bus. Shafer denied molesting G.G.
II. A.A.
A.A. was a student in the Olympia School District during the 2010-11 school year. On
the bus, A.A. normally sat in the same seat with N.L. and V.M.V. Shafer often rode A.A.’s bus
and would sit with her, N.L., and V.M.V. Shafer admitted to molesting N.L. and V.M.V.
V.M.V.’s mother alerted A.A.’s parents, Todd and Jennifer Adams, about Shafer’s molestation
and said that Shafer would put A.A. on his lap or move her to a different seat. A detective
working on the Shafer criminal case told the Adamses that Shafer would put an unnamed girl
who wore dresses on his lap and take pictures up her skirt. Within a week or two of Shafer’s
arrest, the Adamses discussed bus rides with A.A. A.A. said that Shafer was funny, nice, and
would show her pictures on his phone. She said that she liked Shafer and that he would put her
on his lap.
Around first grade, the Adamses noticed behavior regressions with A.A. A.A. began
withdrawing and would have time periods where she would shut down. A.A. also transitioned
from drawing pictures of smiles and flowers to dark pictures of tears and anger.
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No. 48942-2-II
Cons. Nos. 49092-7-II; 49272-5-II
A.A. did not report that Shafer inappropriately touched her. Shafer denied molesting
A.A.
III. P.W.
P.W. was a kindergarten student in the Olympia School District during the 2008-09
school year. Stephen Kern was one of her bus drivers. On the bus route, P.W. was typically
loud and rambunctious. Kern recalled Shafer rode along two to four times. When Shafer rode
along, he always sat next to P.W. P.W. would be much calmer when sitting with Shafer.
P.W. did not recall being inappropriately touched or sitting next to a man on the bus.
Shafer denies molesting P.W.
IV. DR. WYNNE’S EVALUATIONS, OPINIONS, AND TESTIMONY
Dr. Robert Wynne conducted separate forensic evaluations of all three children. Dr.
Wynne prepared reports based on these evaluations. He concluded, after using DSM-5,4 that all
three children suffered from PTSD (post traumatic stress disorder) resulting from some type of
traumatic stressor. Dr. Wynne submitted a declaration that included some findings and opinions
from his evaluations of the children. This declaration states, “I have the opinion that on a more
probable than not basis to a reasonable degree of medical and scientific certainty . . . there is a
causal relationship between the content and timing of the [children’s] emotional, physical and
behavioral concerns, with their exposure to Mr. Shafer’s predations.” CP at 1215. At a
deposition, Dr. Wynne testified, “I think overall, in a general sense, my opinions were fortified
4
AMER. PSYCHIATRIC ASSOC., DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS
(5th ed. 2013).
6
No. 48942-2-II
Cons. Nos. 49092-7-II; 49272-5-II
by the review of recent documents in terms of high probability that these girls were sexually
molested by Gary Shafer.” CP at 706.
A. G.G.
In 2014, Dr. Wynne conducted a psychological evaluation of G.G., interviewed Kelso,
and reviewed a variety of reports and evidence in this case. During the evaluation, [G.G.]
recounted Shafer’s interactions with T.M.C. Dr. Wynne produced a report of his opinions. He
opined:
[G.G.] presents as a bright, sensitive, earnest nine-year-old who harbors substantial
situational anxiety. The Plaintiff retains vivid, though circumscribed memories of
a bus driver, presumably Gary Shafer who molested children on school buses.
While on the bus, [G.G.] was percipient witness to the disturbing and confusing
acts perpetrated by Shafer who sexually assaulted her friend. Speaking to the
practiced pedophile’s thinly veiled grooming tactics, coupled with trauma-based
avoidant defenses, [G.G.] remains unsure whether Shafer was abusing and/or
playfully tickling her friend. In either case, as a five year old [sic], she recognized
that the driver had violated a professional boundary. The disquieting incident left
lasting impressions upon [G.G.] who remains troubled by the memory.
Although [G.G.] denies recall of suffering direct contact from the bus driver and
while seemingly not cognizant of Shafer’s perverse motives, it is evident that she
was psychologically harmed by the incident. [G.G.] clearly meets Criterion A for
a stressor in the DSM-V diagnosis of posttraumatic stress disorder. [G.G.]
witnessed the traumatic event in person; she learned that the traumatic event
occurred to a close family member or close friend (with the actual or threatened
death being either violent or accidental); in addition, there are a number [of]
indicators pointing, [sic] to a likelihood that the child was directly victimized by
Shafer.
In any event, it is more probable than not that [G.G.] suffered greater exposure to
Shafer’s predations than she remembers. She rode the bus to school every day
during the fall of kindergarten. She usually sat with [T.M.C.], who Shafer sexually
assaulted. Shafer admitted to using force when sexually assaulting [T.M.C.], which
included hand on vagina over clothing two times, hand on vagina under clothing
two times, hand on rear-end over clothing 2-3 times. [T.M.C.] told her mother that
Shafer “did it to [G.G.] as well.”
....
7
No. 48942-2-II
Cons. Nos. 49092-7-II; 49272-5-II
The child’s mother reports substantial behavioral changes that erupted during
[G.G.’s] first months of kindergarten, which coincided with exposure to Shafer.
[G.G.] exhibited regressive behaviors. She began wetting herself at night. Her
temperament shifted from emotionally stable, to frequent outbursts and tantrums.
While previously independent and a leader among peers, she seemed shame ridden,
turned painfully shy, self-conscious and prone to embarrassment. [G.G.] developed
difficulties verbalizing and expressing emotions. Tendencies pertaining to altered
superego development and an over-active, judgmental conscience surfaced. The
mother described her child’s rigid, rule-bound, black and white thinking, tendencies
to hold a grudge and obsessional trends. [G.G.] also became more guarded and felt
the need to wear undergarments. She would “freak out” if not able to wear leggings
under her skirts and shorts.
During this evaluation, for the most part, [G.G.] exhibited a proclivity to internalize,
minimize and deny upset. Nonetheless, consistent with having suffered a trauma,
it is evident that she is burdened by chronic and severe situational stress. Overt
symptom constellations are associated with separation anxiety, social anxiety, and
obsessive-compulsive trends. She is acutely self-conscious and fears being viewed
by others as afflicted or damaged in some way. She is highly vigilant, and “freaked
out” in various social situations.
As is common among traumatized children, [G.G.] endorses frequent somatic
symptoms, such as headaches and stomachaches. She voices concern about
compulsive eating habits. “It feels like I can’t stop.” She describes herself as
forgetful and prone to daydreaming. Four years after the assault, [G.G.] remains
triggered by ubiquitous reminders of the bus incident. When she sees a school bus,
she is reminded of what happened. Every time she sees [T.M.C.] at school, she is
reminded of the incident. The observed sexualized behavior of [G.G.’s] sister also
raises concerns regarding transmission of sexual trauma in the home.
CP at 100-02.
B. A.A.
In 2013, Dr. Wynne conducted a psychological evaluation, noting:
[A.A.] was functioning well emotionally, physically and socially prior to entering
kindergarten in the fall of 2010. Developmental milestones were on target.
However, several factors amplified the child’s vulnerability to the grooming tactics
of a sexual predator. [A.A.’s] mother reports a psychiatric history that includes
post-partum depression and a diagnosis of bipolar disorder. She also suffered
childhood sexual trauma. It is noteworthy a child whose mother was sexually
abused in her childhood is at greater risk for childhood sexual abuse. Parental
8
No. 48942-2-II
Cons. Nos. 49092-7-II; 49272-5-II
discord led to separation in early 2010 and was an additional stressor that amplified
the Plaintiff’s vulnerability to a sexual predator. Moreover, she was a quiet child,
who was perhaps disinclined to tell her parents if something happened.
....
Now four years post-molestation [A.A.] does not recall events involving Mr.
Shafer. However, it is evident that she suffered direct, proximate, and ongoing
physical exposure to Shafer’s perverse grooming tactics. It is more probable than
not that he sexually assaulted the child. [A.A.] was also in immediate proximity
and percipient witness to multiple incidents of Shafer assaulting her friends on the
bus.
....
This anxious, emotionally fragile nine-year old [sic] presents a symptom complex
consistent with having suffered sexual trauma. Symptoms in young children, as is
the case for [A.A.], often manifest in non-verbal, behavioral and somatic forms.
During the months following exposure to Shafer, [A.A.] exhibited “dramatic”
emotional and behavioral changes. Concerns included loss of acquired
developmental skills (e.g., toilet training, baby talk, social skills, not wanting to
grow up), emotional dysregulation (volatile mood), increased generalized fears
(e.g., separation anxiety), avoidance (withdrawal) and recurring nightmares (e.g.,
out-of-control vehicles and predatory themes) (“I tried to get out but I am too afraid.
I always other have [sic] dreams like that. It scares me so bad”). She produced
drawings suggesting emotional disturbance and surreptitiously communicated for
a week on a website chat room associated with sex hookups, boys and flirting.
CP at 155-56 (citation omitted).
C. P.W.
In 2014, Dr. Wynne conducted a psychological evaluation of P.W. He opined:
[P.W.] was functioning well emotionally, physically and socially prior to entering
kindergarten in the fall of 2010. She showed no antecedent symptoms of the ADHD
(Attention Deficit Hyperactivity Disorder) disorder prior to meeting Shafer.
Developmental milestones were on target, if not advanced. Areas of adversity that
potentially amplified [P.W.’s] vulnerability to Shafer’s predation included parental
discord, parental separation, and the father’s drinking problem. In addition, around
the time that [P.W.] entered kindergarten, her brother was born. There is possible
family history of [ADHD] on the mother’s side. Following the exposure to Shafer,
[P.W.] began and continued a pattern of distracted and disruptive behavior at
school. She began to dislike school. She had some trouble fitting in with peers.
9
No. 48942-2-II
Cons. Nos. 49092-7-II; 49272-5-II
As Putnam found among molested girls, at age eight, she experienced the onset of
puberty. The family environment includes that since August 2013 the father has
had marginal involvement with [P.W.].
....
There are indications that [P.W.] was psychologically harmed by the contact with
Shafer, though she does not remember the assault. It is also probable that at the
time, she was incapable of perceiving the bus driver’s perverse motives and
comprehending his actions. During the fall of 2010, [P.W.] exhibited an array of
sudden symptoms that family members had not witnessed beforehand. The
presumption at the time was that the child evidenced behaviors associated with an
ADHD diagnosis. [P.W.] was distracted, active and disruptive. Certainly, ADHD
cannot be entirely ruled out as a pre-existing condition that pre-dated contact with
Shafer. However, it is also important to consider that ADHD symptoms are easily
confused with traumatic sequelae. Dissociative concerns can be mistaken for
distractibility. Hyperactivity and impulsivity can be secondary to posttraumatic
hyper-physiologic arousal. What is more, there can be comorbidity of the two
psychiatric conditions. If in fact [P.W.] had ADHD when entering kindergarten,
impulsive and hyperactive behaviors associated with the disorder could have
increased her vulnerability to a sexual predator. In effect, the symptoms could have
functioned to increase likelihood that Shafer would target the child—as he did. In
turn, it is probable that [P.W.] was exhibiting trauma-based symptoms as a direct
result of sexualized contact by Shafer. Posttraumatic sequelae such as hyperarousal
and hypervigilance would serve to aggravate attentional and hyperactive difficulties
resulting from ADHD. Speaking to evidence against an ADHD diagnosis, in recent
time, more acute signs of the disorder have abated.
Nonetheless, [P.W.] remains an anxious child with substantial fears associated with
abandonment and relatively frequent nightmares. Another sign of stress, [P.W.]
compulsively picks at the cuticles of her skin and engages in regular fingernail (and
toenail) biting. Somatic symptoms include chronic digestive concerns, body pains,
and diarrhea. She is easily fatigued, prone to injury and daydreams. Perfectionism
and self-esteem issues are evident.
CP at 196-97.
V. PROCEDURAL HISTORY
The children and their parents, Kelso, Bronson Gouveia, Kristin Westlund, and the
Adamses, filed a complaint against the defendants, alleging gross negligence, negligence, and
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No. 48942-2-II
Cons. Nos. 49092-7-II; 49272-5-II
negligent infliction of emotional distress. Kelso, G.G., Gouveia, Westlund, and P.W. also
alleged mandatory reporting failures under former RCW 26.44.030 (2015).
The defendants moved to bifurcate the three families’ claims. The trial court denied this
motion without prejudice. After conducting discovery, the defendants again moved for
bifurcation. The trial court denied the renewed motion to bifurcate with prejudice, citing judicial
economy and convenience of the parties. Subsequently, the trial court denied the defendants’
(except Shafer) motion for relief from the denial of the renewed motion to bifurcate.
The defendants subsequently moved for summary judgment dismissal of all plaintiffs’
claims. The defendants submitted a declaration in support of the motion for summary judgment
which included Dr. Wynne’s full reports. The children, in response to the motion, submitted Dr.
Wynne’s declaration. The full reports explicitly conclude that all three children were likely
sexually molested by Shafer and their PTSD was caused by such molestation. Dr. Wynne’s
declaration submitted by the children, however, concluded that it was more likely than not that
Shafer caused the three children PTSD harm generally by being in a “toxic, sexually charged,
psychologically harmful environment” Shafer created. CP at 1215. The defendants then moved
to strike inadmissible evidence, arguing that a variety of hearsay and other evidence submitted
by the children was inadmissible. Relevant here, the defendants argued that Dr. Wynne’s
opinions and testimony were inadmissible under Frye. The defendants then argued that absent
the inadmissible evidence, the plaintiffs cannot show Shafer caused them harm.
The trial court granted the defendants’ motion to strike Dr. Wynne’s opinions and
testimony and granted the defendants’ motion for summary judgment only on the children’s
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No. 48942-2-II
Cons. Nos. 49092-7-II; 49272-5-II
claims. Thus, the trial court dismissed the children’s claims, but not the case in its entirety.5 The
defendants sought discretionary review of the orders denying their renewed motion to bifurcate
and the associated motion for reconsideration. The children sought discretionary review of the
order striking Dr. Wynne’s opinions and granting the defendants’ motion for summary judgment
dismissal. We accepted discretionary review of and consolidated all three appeals.
ANALYSIS
I. ADMISSIBILITY OF DR. WYNNE’S DECLARATION
The children argue that the trial court improperly struck Dr. Wynne’s declaration based
on Frye.6 Specifically, the children argue that Frye does not apply because Dr. Wynne’s
scientific methodology was not novel. The defendants argue that Dr. Wynne’s methodology was
impermissible “reverse engineering” of symptoms to find a conclusion of abuse and that Dr.
Wynne was merely profiling sexual abuse victims. Br. of Resp’t at 24. We hold that the Frye
5
The trial court dismissed all the children’s claims, including, without specifically naming,
G.G.’s and P.W.’s claims for mandatory reporting failures. Because the children do not argue
the dismissal of the reporting failure claims in this discretionary review, we do not address the
issue.
Moreover, although plaintiffs raised negligent infliction of emotional distress claims in their
amended complaint, those claims are based solely on mandatory reporting failures. For the first
time at oral argument, the children allege negligent infliction of emotional distress for other acts.
To the extent the children claim negligent infliction of emotional distress for acts separate from
mandatory reporting violations, such claims were not briefed and are not within the scope of the
order granting discretionary review. Thus, we do not address them.
6
The parties’ briefs claim that Dr. Wynne’s “declaration” was stricken. However, the order
granting the motion strikes “the opinions and testimony of Dr. Robert Wynne provided in the
record before the Court.” CP at 1851. Dr. Wynne’s declaration, full reports, and deposition
were before the trial court.
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No. 48942-2-II
Cons. Nos. 49092-7-II; 49272-5-II
test applies to Dr. Wynne’s opinions and that the trial court properly struck Dr. Wynne’s
opinions and testimony.
A. Legal Principles
We review de novo a trial court’s admissibility ruling under Frye. Anderson v. Akzo
Nobel Coatings, Inc., 172 Wn.2d 593, 600, 260 P.3d 857 (2011). “The Frye test is implicated
only where the opinion offered is based upon novel science.” Anderson, 172 Wn.2d at 611.
Although Frye governs the admissibility of novel scientific testimony, accepted techniques used
to reach novel conclusions do not raise Frye concerns. Lakey v. Puget Sound Energy, Inc., 176
Wn.2d 909, 919, 296 P.3d 860 (2013).
If an expert’s scientific methods “are widely accepted in the relevant scientific
community, the evidence is admissible under Frye, without separately requiring widespread
acceptance of the plaintiff’s theory of causation.” Anderson, 172 Wn.2d at 609. Frye does not
require that an expert’s specific conclusions be generally accepted in the scientific community,
nor does Frye “require every deduction drawn from generally accepted theories to be generally
accepted.” Anderson, 172 Wn.2d at 611.
State v. Jones specifically addresses expert opinions identifying child abusers through the
child’s symptoms under Frye. 71 Wn. App. 798, 863 P.2d 85 (1993). Jones was convicted of
first degree child molestation and first degree child rape. Jones, 71 Wn. App. at 802. During the
criminal trial, a social worker testified to common traits of sexually abused children. Jones, 71
Wn. App. at 804. The social worker based her opinions on the 300 to 400 children she had
worked with in that role. Jones, 71 Wn. App. at 803. She stated that behaviors of sexually
acting out, victimization by others, and night terrors were common with sexually abused
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No. 48942-2-II
Cons. Nos. 49092-7-II; 49272-5-II
children. Jones, 71 Wn. App. at 804. The social worker testified further that she believed that
Jones abused the child and the child’s sexualized behaviors, victimization, and night terrors were
consistent with other children who had been sexually abused. Jones, 71 Wn. App. at 804.
Division One of this court determined that the social worker’s statements were closely
related to generalized profile or syndrome testimony. Jones, 71 Wn. App. at 817, 820. Thus, the
court analyzed the testimony that the child’s behaviors were consistent with sexually abused
children as expert opinion under ER 702. Jones, 71 Wn. App. at 817-21. As a result, the court
analyzed “the admissibility of generalized sexual abuse ‘syndrome’ testimony [based on a
caseworker’s clinical observations] under Frye.” Jones, 71 Wn. App. at 817. It determined that
when personal experience is used as a basis for generalized statements regarding
the behavior of sexually abused children as a class, the testimony crosses over to
scientific testimony regarding a profile or syndrome, whether or not the term is
used, and therefore should be subject to the standard set forth in Frye. When the
testimony is limited to the witness’s observations of a specific group, the Frye
standard is not applicable.
....
The prevalent objection to such testimony is that a general profile of typical
behaviors is not specific to sexual abuse, but may be produced by other traumatic
events in the life of the child. . . .
Accordingly, a substantial number of courts have noted that expert
testimony regarding a profile or syndrome of child sexual abuse victims is not
admissible to prove the existence of abuse or that the defendant is guilty.
Jones, 71 Wn. App. at 818-19 (internal citations omitted). As a result, the Jones court held that
“the use of generalized profile testimony, whether from clinical experience or reliance on studies
in the field, to prove the existence of abuse is insufficient under Frye,” unless that testimony is
used to rebut an inference that specific victim behaviors are not consistent with abuse. Jones, 71
Wn. App. at 820.
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No. 48942-2-II
Cons. Nos. 49092-7-II; 49272-5-II
B. Dr. Wynne’s Opinions Are Inadmissible under Frye
Here, the defendants do not challenge forensic evaluations or the use of DSM-5 as novel
science. Rather, the defendants argue Frye applies to Dr. Wynne’s “reverse engineering” of
symptoms. Br. of Resp’t at 24. We hold that Dr. Wynne’s opinions are impermissible under
Frye.
Dr. Wynne conducted forensic evaluations of each child. In his declaration, Dr. Wynne
explained DSM-5’s PTSD symptomology. He stated that he used DSM-5 to analyze the
children’s symptoms and found them to be consistent with “exposure to a traumatic stressor.”
CP at 1218. Dr. Wynne also cited psychiatric literature to explain specific trauma symptoms that
he opined as potentially present with the children. Dr. Wynne’s opinion was that the children’s
PTSD symptoms were caused by their exposure to Shafer. Specifically, his expert opinion was
“that on a more probable than not basis to a reasonable degree of medical and scientific certainty
. . . there is a causal relationship between the content and timing of the [children’s] emotional,
physical and behavioral concerns, with their exposure to Mr. Shafer’s predations.” CP at 1215.
Dr. Wynne used forensic evaluations and symptoms consistent with DSM-5 and
psychiatric literature to determine that the children suffered harm from trauma. This alone does
not implicate Frye. However, Dr. Wynne went further than merely conducting evaluations and
finding symptoms of trauma. Dr. Wynne considered this scientific conclusion along with other
evidence, documents, and materials in the case to form his opinion that, more probably than not
to a reasonable degree of medical and scientific certainty, the children’s harm was caused by
their exposure to Shafer, a serial pedophile. Dr. Wynne’s intermingling of the forensic
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No. 48942-2-II
Cons. Nos. 49092-7-II; 49272-5-II
evaluation results with the evidence in the case to identify Shafer as the probable cause of the
children’s harm implicates Frye, and fails to meet the Frye standard.
The children do not cite, nor after a diligent search can we find, cases that support Dr.
Wynne’s method of using symptoms of trauma to identify a sexual abuser. In fact, Jones and
other cases analyzing this issue come to the opposite conclusion. Jones, 71 Wn. App. at 818-20;
see also State v. Saldana, 324 N.W.2d 227, 229-30 (Minn. 1982) (holding that symptoms of rape
trauma syndrome are not scientifically reliable to determine whether a rape occurred); Ward v.
Commonwealth, 570 S.E.2d 827, 830 (Va. 2002) (holding that expert testimony on PTSD
regarding rape was admissible when expert did not testify to the cause of the PTSD); State v.
Lark, 678 S.E.2d 693, 702 (N.C. Ct. App. 2009) (holding that evidence of PTSD cannot be
admitted for the purpose of proving a rape); State v. Ashburn, 914 S.W.2d 108, 111-13 (Tenn.
Crim. App. 1995) (holding that PTSD or rape trauma syndrome evidence cannot be admitted to
prove a rape); People v. Singh, 186 A.D.2d 285, 285, (N.Y. App. Div. 1992) (holding that expert
testimony on PTSD or rape trauma syndrome is inadmissible to prove that a rape occurred).
Because an expert cannot use trauma symptoms to prove abuse, let alone determine the identity
of an abuser, we hold that Dr. Wynne’s opinions are inadmissible under Frye. 7
7
A separate psychologist, Dr. Mark Whitehill who is a certified sex offender treatment provider,
conducted an evaluation of A.A. and rendered an opinion that, based on A.A.’s symptoms, there
was a significant risk that Shafer molested A.A. This evaluation was submitted by the
defendants in support of their motion for summary judgment. Although the defendants moved to
exclude Dr. Whitehill’s opinions along with Dr. Wynne’s opinions, the order striking the
evidence refers only to Dr. Wynne’s opinions, and not to Dr. Whitehill’s. On summary
judgment, we do not consider evidence that is inadmissible at trial. Larson Motors, Inc. v.
Snypp, 3 Wn. App. 2d 127, 136, 413 P.3d 632 (2018). Dr. Whitehill’s evaluation suffers the
same deficiencies as Dr. Wynne’s. Accordingly, we do not consider Dr. Whitehill’s evaluation.
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No. 48942-2-II
Cons. Nos. 49092-7-II; 49272-5-II
II. SUMMARY JUDGMENT
The children argue alternatively that, even without Dr. Wynne’s opinions, the trial court
improperly granted the defendants’ motion for summary judgment regarding the children’s
negligence claims. Specifically, the children argue that Shafer harmed them by creating a toxic,
sexualized environment on the buses, and Shafer’s sexual motivations made otherwise nonsexual
touches harmful. We hold that P.W.’s and G.G.’s claims do not survive summary judgment, but
A.A.’s claims do.
A. Summary Judgment Legal Principles
We review summary judgment decisions de novo and perform the same inquiry as the
trial court. Lakey, 176 Wn.2d at 922. We view the evidence, and all reasonable inferences
therefrom, in the light most favorable to the nonmoving party. Keck v. Collins, 184 Wn.2d 358,
370, 357 P.3d 1080 (2015). Summary judgment is appropriate where there is no genuine issue as
to any material fact and the moving party is entitled to a judgment as a matter of law. CR 56(c).
A material fact is one on which the outcome of the litigation depends. In re Estate of Black, 153
Wn.2d 152, 160, 102 P.3d 796 (2004).
A defendant is entitled to summary judgment if (1) the defendant shows the absence of
evidence to support the plaintiff’s case, and (2) the plaintiff fails to come forward with evidence
creating a genuine issue of material fact on an element essential to the plaintiff’s case. Clark
County Fire Dist. No. 5 v. Bullivant Houser Bailey P.C., 180 Wn. App. 689, 699, 324 P.3d 743(2014). If a defendant satisfies the initial burden of establishing the absence of a material fact,
the inquiry then shifts to the plaintiff. Burton v. Twin Commander Aircraft LLC, 171 Wn.2d
204, 222-23, 254 P.3d 778 (2011). If the plaintiff fails to make a showing sufficient to establish
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No. 48942-2-II
Cons. Nos. 49092-7-II; 49272-5-II
the existence of an element essential to that party’s case, then summary judgment is proper.
Burton, 171 Wn.2d at 223.
Mere allegations, argumentative assertions, conclusive statements, or speculation do not
raise issues of material fact sufficient to preclude a grant of summary judgment. Spradlin Rock
Prods., Inc. v. Pub. Util. Dist. No. 1 of Grays Harbor County, 164 Wn. App. 641, 654, 266 P.3d
229 (2011). Where reasonable minds could reach but one conclusion from the admissible facts,
summary judgment should be granted. Elliott Bay Seafoods, Inc. v. Port of Seattle, 124 Wn.
App. 5, 12 n.2, 98 P.3d 491 (2004). We may affirm summary judgment on any ground
supported by the record. Riley v. Iron Gate Self Storage, 198 Wn. App. 692, 700, 395 P.3d 1059(2017).
B. G.G. and P.W. Do Not Present Genuine Issues of Material Fact To Overcome Summary
Judgment, but A.A. Does
To prevail in a negligence action, a plaintiff must show that (1) a defendant had a duty to
the plaintiff, (2) the defendant breached that duty, (3) a harm resulted, and (4) the harm was
proximately caused by the defendant’s breach. N.L. v. Bethel Sch. Dist., 186 Wn.2d 422, 429,
378 P.3d 162 (2016). Circumstantial evidence is sufficient to establish a prima facie case of
negligence if a reasonable person could conclude that there is a greater probability than not that
the conduct relied upon was the proximate cause of the injury. Smith v. Wash. State Dep’t of
Corr., 189 Wn. App. 839, 847, 359 P.3d 867 (2015).
Proximate cause has two components: cause in fact and legal cause. N.L., 186 Wn.2d at
436-37. Cause in fact denotes that “but for” an act, the consequences would not have occurred.
N.L., 186 Wn.2d at 437. Legal cause contemplates how far legal consequences should extend for
a defendant’s breach. N.L., 186 Wn.2d at 437. There may be more than one proximate cause of
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No. 48942-2-II
Cons. Nos. 49092-7-II; 49272-5-II
a harm. Mehlert v. Baseball of Seattle, Inc., 1 Wn. App. 2d 115, 118, 404 P.3d 97 (2017).
Usually, causation is a question for the jury, but causation becomes a question of law “only when
the causal connection is so speculative and indirect that reasonable minds could not differ.”
Mehlert, 1 Wn. App.2d at 119.
Here, the defendants do not contest the duty of a school district to its students. Rather,
the defendants argue that the children failed to provide evidence of a breach by the defendants
that caused the alleged PTSD harms. The defendants argue that the children must prove that the
harm suffered was sexual abuse. The children argue on appeal that they were generally harmed
being exposed to a toxic, sexualized environment created by Shafer. We hold that G.G.’s and
P.W.’s claims do not overcome summary judgment dismissal, but A.A.’s claims do.
Here, the children contend that Shafer created a toxic, sexualized environment that
caused harm to them. They argue that their direct contact with or proximity near Shafer and
other children he molested caused them harm. Specifically, the children contend that their
repeated interactions with Shafer, combined with his frotteurism toward children, results in a
cognizable and actionable harm. However, there is no evidence of this toxic, sexualized
environment. None of the children spoke about or described a toxic, sexualized environment.
The concept of a toxic sexualized environment is one of Dr. Wynne’s inadmissible opinions.
Further, Shafer’s personal thoughts are not at issue. His perverse sexual gratification
through nonsexual touching does not raise a material fact that the children were harmed by being
touched in these ways. The children appear to have viewed all contact with Shafer as innocuous,
or not recalled contact at all.
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No. 48942-2-II
Cons. Nos. 49092-7-II; 49272-5-II
However, G.G.’s and P.W.’s physical contacts with Shafer were markedly different from
A.A.’s. There is no evidence that Shafer molested or touched G.G.’s or P.W.’s intimate areas.
Absent Dr. Wynne’s inadmissible opinions, there is no evidence that G.G. or P.W. was exposed
to a “toxic, sexualized environment” that caused them harm. Because the only potential,
admissible proof of this toxic environment is their symptomatology, G.G.’s and P.W.’s claims
are insufficient to raise a material fact regarding causation. Accordingly, we hold that G.G.’s
and P.W.’s claims do not overcome summary judgment dismissal.
However, A.A.’s claims are distinguishable from G.G.’s or P.W’s because of the extent
of the contact between A.A. and Shafer. Shafer placed A.A. on his lap to show her pictures on
his phone. This resulted in her buttocks being on his upper leg or crotch area. This contact
between Shafer and A.A. involves his touching of an intimate part of her body. Unlike G.G. and
P.W., A.A. has presented facts that show Shafer’s contacts could have been molestations which
must be decided by a trier of fact. A.A. often wore dresses, and the evidence established that
Shafer took pictures up an unnamed little girl’s dress while she was on his lap. Further, A.A. has
shown potential harm resulting in behavior regressions, social withdrawals or shutting down for
a period of time.
Taking the facts and reasonable inferences in favor of A.A., there is a question of
material fact regarding whether Shafer’s contacts caused harm to A.A. This causation question
is for the jury to answer. Accordingly, the trial court erred when dismissing A.A.’s claims on
summary judgment.
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No. 48942-2-II
Cons. Nos. 49092-7-II; 49272-5-II
III. SPOLIATION
The children argue that they are entitled to a spoliation inference because the defendants
destroyed evidence by failing to disclose Shafer’s behavior. We disagree.
Spoliation is the “intentional destruction of evidence.” Tavai v. Walmart Stores, Inc., 176
Wn. App. 122, 134, 308 P.3d 811 (2013). In determining whether to apply a spoliation inference
against a party who destroyed evidence, we consider “the potential importance or relevance of
the missing evidence” and “the culpability or fault of the adverse party.” Tavai, 176 Wn. App. at
135. The importance of the missing evidence depends on the facts of each case. Tavai, 176 Wn.
App. at 135.
Regarding culpability, we consider whether the party has an innocent explanation for the
destroyed evidence or whether the party’s bad faith or conscious disregard led to the loss of the
evidence. Tavai, 176 Wn. App. at 135. Further, we consider if the party violated some duty to
preserve the evidence. Tavai, 176 Wn. App. at 135. However, there is no general duty to
preserve evidence and “a party’s negligent failure to preserve evidence relevant to foreseeable
litigation is not sanctionable spoliation.” Cook v. Tarbert Logging, Inc., 190 Wn. App. 448, 464,
470, 360 P.3d 855 (2015). Ordinarily, we review a trial court’s refusal to apply a spoliation
inference for an abuse of discretion. Henderson v. Tyrrell, 80 Wn. App. 592, 604, 910 P.2d 522(1996). However, when the trial court’s decision on spoliation occurs in conjunction with
summary judgment, our review is de novo. Tavai, 176 Wn. App. at 135.
The children are not entitled to a spoliation inference. The children contend that the
defendants destroyed evidence of the children’s memories of Shafer’s molestation. They argue
21
No. 48942-2-II
Cons. Nos. 49092-7-II; 49272-5-II
the defendants accomplished the destruction by not timely disclosing the potential molestation to
their parents.
Spoliation applies to the destruction of evidence. See Tavai, 176 Wn. App. at 135. The
children’s contention that the defendants destroyed the children’s memories is misplaced. First,
the defendants did not possess or control evidence within the children’s memories. Second, the
defendants did not intentionally destroy any evidence. Finally, there is no evidence to support
that the children at one time had memories of Shafer’s molestation of them. Although the
children’s memories of molestation would clearly be important in this case, the children stretch
spoliation too far when arguing that, because the children do not have memories of molestation,
and because the defendants did not alert the parents of potential molestation quickly, the court
should apply an inference of molestation in lieu of the missing memories. Because the
defendants did not possess or control the potential evidence of the children’s memories, and
because the defendants did not destroy the children’s memories, we hold that the children are not
entitled to a spoliation inference.
IV. CROSS APPEAL: BIFURCATION
The defendants argue that the trial court abused its discretion when it declined to
bifurcate the three children’s cases. We disagree.
We review a trial court’s determination on a motion to bifurcate for an abuse of
discretion. In re Det. of Mines, 165 Wn. App. 112, 124, 266 P.3d 242 (2011). A trial court
abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds.
Det. of Mines, 165 Wn. App. at 124.
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No. 48942-2-II
Cons. Nos. 49092-7-II; 49272-5-II
Two rules address a trial court’s ability to bifurcate claims or issues into separate trials.
CR 20(b) states that a “court . . . may order separate trials or make other orders to prevent delay
or prejudice.” Similarly, CR 42(b) states:
The court, in furtherance of convenience or to avoid prejudice, or when separate
trials will be conductive to expedition and economy, may order a separate trial of
any claim . . . or of any separate issue or of any number of claims . . . or issues,
always preserving inviolate the right of trial by jury.
Bifurcation “should be carefully and cautiously applied and be utilized only in a case and at a
juncture where informed judgment impels the court to conclude that application of the rule will
manifestly promote convenience and/or actually avoid prejudice.” Brown v. Gen. Motors Corp.,
67 Wn.2d 278, 282, 407 P.2d 461 (1965).8 Bifurcation may result in piecemeal litigation,
judicial inefficiency, and delays in the ultimate resolution of case. Brown, 67 Wn.2d at 282.
Such piecemeal litigation is discouraged, especially where “the evidence bearing upon the
respective issues is commingled and overlapping.” Brown, 67 Wn.2d at 282. Bifurcation is not
a procedure to be liberally applied, but its application remains in the discretion of the trial court.
Myers v. Boeing Co., 115 Wn.2d 123, 140, 794 P.2d 1272 (1990).
Here, the defendants made two motions to bifurcate. The trial court denied the motions.
When denying the renewed motion, the trial court balanced judicial economy and convenience of
the parties against prejudice to the defendants. The trial court stated that “where there’s a
common nucleus of facts or of liability or damage issues or when the issues are really
interwoven, I think it’s particularly important for judicial economy reasons and also for the
8
Brown analyzes the predecessor rule to CR 42(b), which is practically identical to the current
bifurcation rule set out in CR 42(b).
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No. 48942-2-II
Cons. Nos. 49092-7-II; 49272-5-II
convenience of the parties to not grant a request for a separate trial or for bifurcation unless there
is going to be great prejudice or serious prejudice to the defendant.” Motion Hearing (April 22,
2016) at 16-17. The trial court balanced and weighed judicial economy and convenience against
prejudice to the defendants. After considering these factors, the trial court denied the motion to
bifurcate. This denial was not manifestly unreasonable or based on untenable grounds.
Accordingly, we hold that the trial court did not abuse its discretion when denying the
defendants’ motion for bifurcation.
ATTORNEY FEES
The children request attorney fees under RAP 14.3, RAP 18.1, RCW 4.84.185, and
through equity. The children argue that we should award attorney fees because the defendants’
arguments to the trial court were frivolous and because the defendants committed prelitigation
misconduct. The defendants argue that the children failed to request attorney fees for the
summary judgment and evidentiary motions to the trial court and, thus, waived that relief on
appeal. Further, the defendants argue that the alleged prelitigation misconduct through spoliation
is groundless. We decline to award attorney fees.
RAP 18.9 and RCW 4.84.185 allow this court to impose compensatory damages or
sanctions against a party filing a frivolous appeal. An appeal is frivolous if “there are no
debatable issues over which reasonable minds could differ and there is so little merit that the
chance of reversal is slim.” Kearney v. Kearney, 95 Wn. App. 405, 416, 974 P.2d 872 (1999).
We may refuse to consider an issue on appeal that was not raised to the trial court. RAP 2.5(a).
We decline to award attorney fees based on frivolity because the defendants’ claims have
merit. Further, in responding to the defendants’ motions for summary judgment dismissal and to
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No. 48942-2-II
Cons. Nos. 49092-7-II; 49272-5-II
strike inadmissible evidence, the children did not request attorney fees. The children did not
request attorney fees based on prelitigation misconduct at the trial court level. Regardless, the
children’s prelitigation misconduct argument is dependent on their unsuccessful spoliation claim.
We deny the children’s request for attorney fees.
CONCLUSION
In conclusion, we hold that the trial court did not err when striking Dr. Wynne’s opinions
and testimony under Frye. Further, we hold that the trial court did not err when granting the
defendants’ motion for summary judgment dismissal of G.G.’s and P.W.’s claims. However,
summary judgment dismissal was improper for A.A. We also hold that the children are not
entitled to a spoliation inference, and the trial court did not abuse its discretion when denying the
defendants’ motion to bifurcate. We deny the parties’ requests for attorney fees. Accordingly,
we reverse in part, affirm in part, and remand for further proceedings.
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 in accordance with RCW
2.06.040, it is so ordered.
Worswick, P.J.
We concur:
Melnick, J.
Cruser, J.
25