DEFENSE NEWS Fighting for Justice and Balance in Civil Courts Lessons from the Trial By Anne M. Bremner, Stafford Frey Cooper

[continued from last issue] Why the Defense Won – What They Did Right The Defense Packaged Jackson Well

Winter 2005/2006 “All Children – except me – grow up.” J.M. Barrie – Peter Pan Rather than as advised (putting Michael Jackson in a suit IN THIS ISSUE with one hand holding a girlfriend’s hand and the other holding a Bible), the defense dressed Michael Jackson in or- List Serve Emails nate costumes every day of the trial. During the course of pre-trial proceedings, “The Rest of the Story” 5 he wore a white three-piece suit with a gold arm band, the white for purity and innocence. On Cinco de Mayo – in a town that is 60% Hispanic – he wore a President’s Column 6 Cinco de Mayo vest. On the day of ’s testimony, he wore a joker’s vest, thereby showing a lack of hubris and some humility while facing the man who Judicial Profile: has been making fun of him on the nightly air waves and calling him a pedo- An Interview with phile for months. Thurston County Superior Court Judge Michael Jackson entered as if on a red carpet with an umbrella holder every Richard “Cork” Hicks 8 single day of the trial. On good days, he would carry his own umbrella, which I noted on the air. Many celebrities had made mistakes in terms of what they And the Defense Wins 11 wore, including Martha Stewart, who didn’t show much humility when she ar- rived for trial with her Hermes Berkin bag, or Courtney Love who looked like Local Discovery a rock star wreck when she was tried on charges of being under the influence of Limitations and the cocaine, dressed in grungy cardigans, and even a black strapless evening gown, “Discrete Subparts” Rule 12 showing utter disregard for the seriousness of the charges. Michael Jackson wore multi-colored jackets, different colored armbands, wrinkled Verdicts and Settlements 14 royal crest and military medals, many from Great Britain. Sometimes he looked like a toy soldier, sometimes he looked like a prep school dandy. Throughout, Michael Committee Members 22 Jackson conveyed to the jury a constant reminder that he is not like everybody else. He is rock and roll royalty, he is a celebrity who deserves special consideration. The WDTL Membership Times called this the “fashion defense.” Application 23 Michael Jackson Was Portrayed as Being in Tragic Decline. “Michael Jackson is one of the last living Innocents.” Steven Speilberg. Upcoming Events 24 “Stop Messing with Me” Michael and Janet Jackson, “Childhood Scream” from “History” “Leave me alone.” Michael Jackson Michael Jackson visited the hospital during the course of the trial on five sepa- rate occasions. He appeared vulnerable, childlike and sweet before the jury. Continued on Page 2

Editor: Gregory A.V. Clark WDTL Executive Director, Kristin Lewis www.wdtl.org T. 206.292.8930 | F. 206.386.5130 [email protected] T. 206.749.0319 | F. 206.749.0321 [email protected] Lessons From Page 1 Unlike Scott Peterson, his court- came onboard, there was no more DEFENSE NEWS room demeanor was absolutely Hollywood slickness. He just decid- Editors perfect for this trial. He was re- ed to dig in and do the work, and I Gregory A.V. Clark Jody Reich Bullivant Houser Bailey PC Betts Patterson & Mines P.S. spectful to the jurors, to the court think that brought a lot of integrity 206.292.8930 206.292.9988 206.386.5130 206.343.7053 staff, to the judge, and to every- and credibility to this case.” 2300 Westlake Office Tower 701 Pike St, Suite 1400 1601 Fifth Avenue Seattle, WA 98101-3927 one involved in the trial. He also Through the work of the defense, Seattle, WA 98101-1618 [email protected] [email protected] appeared to be in tragic decline Michael Jackson’s world all made Editorial Board throughout the trial. It was as if sense to the jurors. He was por- Marnie Bergman Mathew D. Marinelli the trial was killing him. It would Jager Law Office PLLC Burgess Fitzer, P.S. trayed from the beginning, in open- 206.441.9705 253.572.5324 be hard for the jury to convict 206.441.9711 253.627.8928 ing statements, as an odd genius 600 Stewart St, Ste 1100 1501 Market St, Suite 300 and send to prison for the rest Seattle WA 98101 Tacoma, WA 98402-3333 who sits in a wishing tree and writes [email protected] [email protected] of his life a man who was barely William L. Cameron Bert W. Markovich songs; as a Peter Pan and vulner- Lee Smart Cook Martin & Schwabe, Williamson & Wyatt. P.C. holding on during the course of Patterson 206.622.1711 able child who would rather hang 206.262.8301 206.292.0460 the trial itself. His frame carried 206.624.5944 1420 5th Ave, Suite 3010 out with chimps than humans; one 1800 One Convention Place Seattle, WA 98101-3944 about 115 lbs. There were times 701 Pike Street [email protected] that surrounds himself with little Seattle, WA 98101-3929 during the trial that he had to go [email protected] Stacy J. Plotkin-Wolff children but is also the patron saint George W. McLean, Jr & to the bathroom to get sick, and Jeremy W. Culumber Associates of children. Michael Jackson’s songs Keating, Bucklin & 206.839.4200 often appeared to be in obvious McCormack, Inc., P.S. 206.839.4220 have healed the world and make the 206.623.8861 720 Olive Way, Suite 1600 physical distress. He was taken 206.223.9423 Seattle, WA 98101-1890 world a better place for children; 800 5th Ave, Suite 4141 Stacy.Plotkin- to the hospital during the course Seattle, WA 98104-3175 [email protected] , and We are [email protected] Barbara J. Rhoads-Weaver of jury selection (missing court), the World were all presented to the Nathaniel B Green Jr. Bullivant Houser Bailey PC Hollenbeck, Lancaster & Miller 206.521.6494 and of course, showed up late for jury. Michael Jackson was shown 425.644.4440 206.386.5130 425.747.8338 1601 Fifth Ave, Suite 2300 court in his pajamas having been to be vulnerable throughout his 15500 SE 30th Place, Suite 201 Seattle, WA 98101-1618 Bellevue WA 98007-6347 barbara.rhoads- hospitalized, yet again. The jury life: because he was a star at such [email protected] [email protected] knew that he was hospitalized Carol S. Janes Aaron V. Rocke an early age, people only want to Bennett Bigelow Leedom, P.S. Office of Attorney General twice during the course of jury 206.622.5511 206.464.7652 take advantage of him, and he never 206.622.8986 206.587.4229 deliberations. It is human nature 1700 Seventh Avenue, Suite 1900 900 4th Ave, Suite 2000, TB-14 knows who to trust. The culmina- Seattle, WA 98101 Seattle, WA 98164-1012 to not want to take someone [email protected] [email protected] tion of that victimization was the out who is “already gone,” and Laurie D. Kohli Anthony Scisciani prosecution brought by Santa Porter, Kohli & LeMaster, P.S. Scheer & Zehnder LLP subliminally the defense sent the 206.624.8890 206.262.1200 Barbara County. 206.587.0579 206.223.4065 message that Michael Jackson had 1301 Fifth Ave, Suite 2600 720 Olive Way, Suite 1605 Here, the defense successfully put Seattle, WA 98101-2622 Seattle, WA 98101 been punished enough (if there [email protected] [email protected] forth the theme that the case was Kristin Lewis, Benjamin J. Stone was some specter of belief in the Executive Director Keller Rohrback L.L.P. about “money, money and more Washington Defense 206.623.1900 jury’s mind that he was indeed Trial Lawyers 206.623.3384 money” that the family simply want- 601 Union St., Suite 4100 1201 Third Ave, Suite 3200 guilty of child molestation). Seattle WA 98101 Seattle, WA 98101-3052 ed a conviction so they could extract Phone: (206) 749-0319 [email protected] Fax: (206) 749-0321 Was even more money out of Michael Email: [email protected] Charles A. Willmes Bullivant Houser Bailey PC Mesmerizing. 206.292.8930 Jackson. While the prosecution 206.386.5130 1601 Fifth Ave, Suite 2300 “If you squint your eyes it all makes portrayed Neverland as “Pinocchio’s Seattle, WA 98101-1618 [email protected] sense.” Anonymous field producer Pleasure Island,” the defense showed

The Defense News is published bi-monthly by the Washington Defense at the Mary Kay Letourneau trial. it as a refuge for children from all Trial Lawyers, c/o WDTL, 601 Union St., Ste 4100, Seattle WA 98101. All rights reserved. Reproduction of any material appearing herein without over the world, the disadvantaged, permission is prohibited. SUBSCRIPTION: Included in dues of all active Thomas Mesereau was not the members. EDITORIAL POLICY: Defense News is edited for members of downtrodden and needy. Neverland the Washington Defense Trial Lawyers. Publishing and editorial decisions are typical celebrity lawyer. He based on the editors’ judgment of the quality of the writing, the timeliness of the article, and the potential interest to Defense News readers. The views had a full zoo, full arcade and movie expressed in the Defense News are those of the authors and may not reflect the worked hard, he was dogged, he official policy or position of WDTL or Defense News. SUBMISSIONS: All theater, guest houses, its own fire submissions must be typewritten, double-spaced (including citations). Include was prepared and he pandered with the article an electronic format – either by email or disk. Articles may be submitted to [email protected] or [email protected]. ADVERTISING: department, and miniature train and All advertising inquiries should be directed to: Kristin Lewis, 601 Union St., to no one. As ABC News analyst Suite 4100, Seattle, WA 98101, (206) 749-0319 or e-mail: [email protected] train station. Defense News does not screen its advertisers/advertisements and does not vouch for Dana Cole stated, “Once Tom the quality of the services offered for sale herein. 2 Winter 2005/2006 Lessons From Page 2 The Defense Closing Was grew up before all of our eyes. They stand and thereby the son; (4) at Compelling. pulled on the jury’s heartstrings about every opportunity they played the re- “Everybody gets so much information Jackson, his three children and his buttal video where the family denied every day they lose their common sense.” family, including his mother, who are being falsely imprisoned by and spoke Gertrude Stein all dependent upon him. The twists of their love for Michael Jackson; (5) and turns and misfires in the twilight they presented Michael Jackson as a The defense gave a powerful closing zone of the prosecution’s case were victim of opportunistic vultures and argument by bringing home its cen- all turned against them. The defense in tragic decline; (6) Debbie Rowe tral theme: if you have the slightest called to the jury essentially saying was a gem; (7) they had beautiful PR; doubt regarding the credibility of this that jury duty is the highest calling (8) they had appropriate themes; (9) family, then Michael Jackson must go in citizenship per Abraham Lincoln, they capitalized on Michael Jackson’s home. If you have the slightest doubt and that the jurors needed to rise to celebrity; (10) they had a clear lead on about the credibility of this family, the occasion and do the right thing. the defense team; (11) they showed then the prosecution fails. If you don’t Jackson’s acquittal was more reminis- family support and had Michael’s believe this family beyond a reason- cent of the Scottish verdict of “not mother Kathryn Jackson front and able doubt, you must acquit. This is a proven,” a result that was the natural center; and (12) they took on Thomas family of con artists, liars and actors. progression of a very well prepared Sneddon as a character out of Les Perjury is a habit for them. It is a and tried defense and a failed pros- Misérables. pattern. The defense was able to show ecution. the prosecution oversold their case “He could sing in front of 90,000 and underperformed miserably, and The defense won because (1) they people but in front of 3 it is very dif- instilled in the jury the complicated were prepared; (2) they hit a home ficult for him. We have sat in my studio feelings about the child star who run in their opening statement; (3) when he is going to sing a new song they destroyed the mother on the and I had to close my eyes and turn my back.” Quincy Jones “His intelligence is instinctual and emo- tional like a child’s.” Jane Fonda “Michael looks at cartoons all day and keeps away from drugs. That is how he maintains his innocence. He has a great deal of innocence and he protects that especially.” Paul McCartney Michael Jackson has left the build- ing. He feels exonerated. He has been fully exonerated although jurors have indicated now they have doubts about their verdict. Double jeopardy, of course, precludes any retrial. The question is, is he ? Is he the pe- dophile he was painted to be or is he invincible? Was he truly innocent? This article has been about why the defense won and why the prosecution lost. The strength of the prosecution, and its centerpiece, was the argument

Continued on Page 4

Winter 2005/2006  WDTL STAFF Lessons From Page 3 Member Services that 46-year-old men don’t have sleepovers. Think about it. They pointed to the Bashir documentary and multiple other victims. Michael Jackson built Nev- David Penrose erland for children and the children came. Michael Jackson is the Pied Piper 4141 Agate Road Pedophile. Neverland is a pedophile’s paradise. Michael Jackson has a horrific Bellingham WA 98226-8745 history of pedophilia. Neverland is all about booze, pornography and carnival Phone: (360) 392-0467 rides. This is not a “he said, he said.” This is a case of corroboration, pattern Fax: (360) 392-0468 evidence and fingerprints. Michael Jackson settled one case for $26 million, Email: [email protected] three times his annual income at that time (1993). There are also the haunting words of the accuser’s mother, “Michael Jackson has fooled the world.” Perhaps Accounting he did indeed fool this jury. If indeed Michael Jackson is guilty and was wrong- Jackie Mintz fully acquitted, perhaps his most lasting legacy is not (as he has claimed) helping PO Box 27644 children as the “patron saint of children” but in raising the awareness regarding Seattle WA 98125-2644 child molestation and the difficulty in proving these cases, thereby helping to Phone: (206) 522-6496 protect our world’s children from people like Michael Jackson in the future. Email: [email protected] “I have seen him with children-they won’t let him go to the bathroom without run- ning in. They won’t let him out of their sight. They even jump in bed with him.” Executive Director Kristin Lewis 601 Union St., Suite 4100 Seattle WA 98101 Phone: (206) 749-0319 Fax: (206) 749-0321 Email: [email protected]

 Winter 2005/2006 List Serve Emails: “The Rest of the Story” This is a column about List Serve Emails that are either interesting, off-beat, or someting we should all know. Original email to the list serve – October 4, 2004 trial where the PIP was set off. With a settlement, particu- Plaintiff wants to call his former mother-in-law to testify at larly when a PIP set off is not mentioned in the release doc- a trial that started this morning. Plaintiff did not want to uments or during negotiations, the attorney’s fee demand pay her way from Montana, so he has said that he will call can be more safely rejected, arguing in part that the release her to testify by telephone. Has anyone briefed this issue, covers all claims, including this one, that there was no ac- or does anyone have any thoughts on how to prevent this? tual reimbursement of PIP, and that recouping PIP was not contemplated during negotiations. Obviously, all current Thanks. and future negotiations should specifically deal with this Jeffrey Twersky issue, and I personally would recommend specifically “waiv- Johnson & Twersky, PLLC ing” any PIP set off during settlement, particularly if there Where it stands now: is no actual transfer of funds within the company from one The court let the mother-in-law testify from a court account or department to another (or, in the alternative, reporter’s office, so that the court reporter could verify that actually listing the recouped PIP and resultant attorneys the woman’s identity. fees in the release to create the appropriate “net” you want the claimant to receive). In any case, it is best to meet this head on from now on, no matter what you decide. There Original email to the list serve - October 24, 2004 also was a general call for uniformity, so dialogue should We have received a demand for attorney’s fees for the PIP continue on this as companies made decisions. set off in a UIM context under Hamm v. State Farm in 5. If retroactive, the consensus is that it goes back 6 years a long closed file, similar to the situation faced earlier in from the creation of the so called “benefit” i.e., the award or Mahler and Winters. Is everyone now getting these letters? settlement. Awards actually reduced to judgment fare the Can we argue that this is first party coverage and therefore best chance of standing without the payment of fees. different - that the release in the UIM settlement included Finally, with her permission to share this with you, here is all potential claims, including this one? It would be nice to Irene Hecht’s excellent analysis: hear from those attorneys who handled the retroactive ef- fect of Mahler with any thoughts they might have on how Jim, my analysis of this issue is that it is not clear, but to advise our clients as these letters start pouring in. retroactive application of a new rule of decisional law is the norm in Washington, although this standard is neither James E. Macpherson constitutionally nor statutorily mandated. Robinson v. City Kopta & Macpherson of Seattle, 119 Wn.2d 34, 830 P.2d 318, cert. den., 506 Where it stands now: U.S. 1028 (1992); Bradbury v. Aetna Cas. & Sur. Co., 91 After 24 hours, here is my follow up on the fee issue on Wn.2d 504, 507-08, 589 P.2d 785 (1979). With respect to closed UIM files raised byHamm v. State Farm. insurance law specifically, decisional law suggests it applies retroactively, unless an insurer can establish that it justifi- 1. I had 14 “me toos” that did not give any opinion but ably relied on established precedent that predated the new wanted information. I suspect others also are interested. case. Jain v. State Farm Mut. Auto Ins. Co., 130 Wn.2d 2. There were four written comments of varying length 688, 926 P.2d 923 (1996) (retroactivity of decision void- and detail, with Irene Hecht by far the most complete and ing insurance policy clause that excluded policyholder’s set forth in full below, plus one telephone caller who just car from definition of underinsured vehicle); Bradbury v. advised paying in light of the mess raised by Mahler and Aetna Cas. & Sur. Co., 91 Wn.2d 504, 507-08, 589 P.2d Winters. 785 (1979) (retroactivity of decision allowing stacking of 3. I did not get any feed back from attorneys directly in- UIM coverages if multiple premiums had been paid). The volved in Mahler, particularly on the retroactive effect, and Hamm Court described its decision as an extension of still think we all would benefit from such feed back. existing law, so it seems unlikely that a Washington court 4. The general consensus was that the greatest exposure is would decide that an insurer justifiably and reasonably with UIM claims actually adjudicated through hearing or believed that it would not have to pay a pro-rata share of Continued on Page 6 Winter 2005/2006  List Serve Emails From Page 5 attorney fees. How extensively the Original email to the list serve - want to use Partin or most of the ruling would be applied retroactively, September 27, 2004 usual suspects. All ideas welcomed. however, is unclear and undecided. We have a case of alleged wrongful Sean Sheehan In cases outside the insurance setting, death in which plaintiffs claim that Seattle City Attorney’s Office the courts have suggested that the the deceased 69-year-old female was a Where it stands now: statute of limitations or res judicata business tycoon from mainland China establish the outside limits of retroac- who was still active in business affairs After we dug out the evidence from tivity. Thus, it would appear that re- in China when she died. We need an her application for permanent resi- leases and arbitration awards can not economic expert who can realistically dency and for subsidized housing, be challenged after the six-year statute value the deceased’s income and assets in which she stated under penalty of governing an insured’s UIM contract and give a true picture of economic perjury that she had no income and claim against its insurer has expired. losses. Much of the discovery we no assets, the plaintiffs saw the error If the arbitration award was actually have received is in Chinese, so we of their ways and we settled the death reduced to a judgment, that judg- need an interpreter as well. We don’t claim for a very reasonable amount. ment should have res judicata effect, and presumably bars reopening the issue of attorneys fees. In cases where there was just an arbitration award that was not reduced to a judgment, however, it is unclear whether the is- sue of attorneys fees can be re-opened since it is unclear if such an award has res judicata effect, but it would still ultimately be subject to the six year statute of limitations. Irene M. Hecht Keller Rohrback L.L.P.

 Winter 2005/2006 President’s Column By Jill Haavig Stone

As I sit down to write At this time, WDTL supports not offer its name in support of or this President’s column and encourages the Legislature, in in opposition to political issues that in early November, the the upcoming session, to take a are ideologically and financially dust has barely settled thoughtful and well-reasoned divisive to the WSBA membership. on the anticipated approach to problem solving on the The Washington Defense Trial defeat of both I-330 complex and divisive issues relating Lawyers, as a specialty bar, can and I-336. By the time you read to medical liability reform. and should take positions on vari- this issue of the Defense News, the These issues will not go away, and ous subjects that come before the Legislature will be close to conven- while WDTL certainly supports the Legislature and the electorate. ing the 2006 session. initiative process conceptually, we If proposed legislation or initiatives As you know, WDTL was not able will continue to believe that as to meet the Board’s evaluation of ben- to support either medical malprac- this issue, the Legislature can and efit for our member’s interests – we tice initiative – I-330 or I-336 – must exercise their leadership in will lend our support. The Board due to the diverse orientations and a process of study, evaluation and of Trustees welcomes comments and views of our membership. Some of decision making to devise a real input from the membership at our members spoke out individu- solution. In addition, WDTL will any time. ally, which is entirely appropriate. continue to review any positions As we all know, significant money taken by the WSBA for compliance was spent on these “warring” initia- with GR 12 and the respect due tives, accusations were hurled and an integrated Bar such as ours. As we all have friends and neighbors indicated in the Letter to the Edi- who were confused and annoyed by tor submitted to the Bar News in the difficulty in sorting through the the November 2005 issue, WDTL relative positions as they prepared believes that as a compulsory mem- to try to vote in an educated bership association, WSBA should manner.

Winter 2005/2006  Judicial Profile: An Interview with Thurston County Superior Court Judge Richard “Cork” Hicks By Mark Scheer and the Judicial Relations Committee This is the fifth of a new series of It is my understanding you are a Supreme Court Justices. I really judicial profiles for the Defense News. fifth-generation resident of Thur- enjoyed that position. Then, after With the assistance of Mark Scheer and ston County. Why have you stayed completing my undergraduate stud- the Judicial Relations Committee, we in Thurston County? ies, I went to dinner with a friend include the profile a different judge each Judge Hicks: I did get away after high from UW and we reminisced about issue. This month’s judicial profile fea- school, attending the University of my days at the Supreme Court Li- tures Thurston County Superior Court Washington for my under graduate brary. My friend suggested I apply to Judge Richard “Cork” Hicks. degree and later the University of law school so I took the LSAT, scored Judge Hicks has been a Superior Washington School of Law where I “okay” and had the results sent to the Court Judge since 1992. Prior to took on a full-time, year-round cur- UW. At that point, while waiting becoming a Superior Court Judge, he riculum and graduated in 2 1/2 years. for either an acceptance or rejection served as Thurston County Juvenile I believe Olympia and Thurston letter, because I had various responsi- and Family Law Commissioner from County are a great place to raise a bilities with my family, I approached 1985 to 1992. Interestingly, Judge family. My family already lived here, the Dean of the law school and asked Hicks ran against current Thur- and after marrying my wife, Dottie, whether, in fact, I had been accepted ston County Superior Court Judge in Philadelphia, we moved onto my or rejected. The next week I received McPhee in 1991. As it turns out, father’s oyster farm and I opened up an acceptance letter. Judge McPhee won this election, but shop in 1978. When did know you would Judge Hicks was elected to the bench When did you know you would become a judge? the very next year. I had the oppor- pursue a legal career? Judge Hicks: From 1985-1992, I tunity to sit down with Judge Hicks Judge Hicks: This fate is very interest- really enjoyed my position as the full- and ask him some questions about ing to me. Nobody else in my entire time court Commissioner/Juvenile the bench, his experiences, and some family is an attorney. When I was in Court Judge. This gave me tremen- of his opinions about the legal system high school, I had a part-time/full- dous job satisfaction. I enjoy trying in Washington. time position at the Supreme Court cases, but I receive more satisfaction Law Library in Olympia. I worked reconciling contrasting points of law there for three years, meeting all the as opposed to winning a hotly con- tested trial. As it turned out, a posi- tion opened on the Thurston County Superior Court Bench in 1991 (which I lost to Judge McPhee). I was fortunate to prevail the very next year in the general election with the endorsement of Governor Gardner. What is it you like most about being a judge? Judge Hicks: If I think seriously about it, I am always learning. As a Superior Court Judge you are a general jurisdiction judge and you are fortunate enough to learn informa- tion in very different areas of science, environment, life, etc. It is a con- Continued on Next Page  Winter 2005/2006 tinual adventure where I am learning not want any of my rulings to favor hours; and when people come into about the world around me that is one side. Overall, it is much more the court room with such a strong unparalleled. It is exciting and never challenging, yet satisfying, when I smell of intoxicants that my court routine. have two well-prepared attorneys reporter complains. Of course, I have What is the hardest thing about before me. seen some interesting demonstrative being a judge? What has been your most unusual evidence; and sometimes funny things make us laugh. Judge Hicks: Despite the tremendous moment in the court room? satisfaction, it is not always a pleasant Judge Hicks: In 13 years on the Do you have a preference for either profession. There are times when I bench, I have had many different a criminal or civil trial? am forced to take a child away from kinds of moments. Some that stick Judge Hicks: I believe most judges his or her parents; when I face vic- out include a time when a person are intrigued by a good murder trial. tims who were subjected to horrible stood up and had apparently uri- However, I do enjoy civil trials and crimes; when I have to look a person nated in their pants; a person in believe a well tried civil case is just as in the face, knowing full well they are custody bolted from the court room interesting as a murder trial. lying to me; there can be some un- and could not be found for several Continued on Page 10 pleasantries that arise in probate cases; and there are times when I experi- ence varying types of emotion packed cases, civil or criminal, depending on the issues. These are examples of some of the more difficult times serv- ing as a judge. What is one thing most people probably don’t know about being a judge? Judge Hicks: Almost every Superior Court Judge truly wants to come to a just result despite individual feelings. Even when some judges may have a “leaning” one way or the other, such as a prior defense or plaintiff-oriented practice, truly most superior judges recognize this leaning and are able to separate their particular background and reach a reasoned decision. What is more challenging, presid- ing over a trial with a new attorney or a seasoned veteran? Judge Hicks: The difficulty truly depends upon the preparedness of the attorneys. This may not have any- thing to do with the relative experi- ence of the attorneys, but it poses a difficulty when one side is more prepared than the other because I do

Winter 2005/2006  Judicial Profile From Page 9

Have you seen any recent trends in the court system, The state legal system is grossly underfunded compared such as the change in MAR limits, that may have a to its federal counterpart. Simply put, we need additional real impact? resources to attract quality professionals to work and par- Judge Hicks: I have seen a few movements in the court ticipate in the Washington legal system. If you take a look system, though not necessarily related to MAR, that at the federal courthouse, and then take a look at your local are growing in frequency. First, there is a tremendous county court room, the difference is obvious. Again, I also increase in pro se cases, especially in family law, which is find we need to emphasize mutual respect and civility so as bleeding into the civil system. While serving as the Court to deserve being called a “profession.” Commissioner, it was not uncommon to see a number of If you could change places with any other judge on any pro se parties in the family law arena. However, because other type of court, who would it be? of a computer literate society, I have noticed a swell in pro Judge Hicks: I like what I am doing right now. There was a se parties in the entire civil arena. time when I would have liked to write opinions on a higher The second movement I have noticed is that more and court, but at this stage, it is not likely to happen. Being in more cases are going outside to informal alternative dis- Thurston County, however, is the next best thing because pute resolution (either by contractual agreement or agree- there are so many interesting cases filed here in our State ment of the parties). This trend is something we should Capitol. With that being said, I do remember some judges reflect upon because we do not necessarily want to be left in Eastern Washington telling me about carrying their fish- with a court system that is used only for criminals and the ing poles to work, back several years ago. I do not know if poor. This is something to keep an eye on as more and that is still the case today. more parties submit matters outside of the court system If you weren’t serving on the bench, you would be...... to ADR through contract or simply agreed upon amongst Judge Hicks: Teaching at the college level. themselves. In other words, private ADR may be used by private parties, but is not available in the criminal context, When counsel appear before you, what is a Judge Hicks or by people who cannot afford arbitrators/mediators. “no- no”? On this front, we need to be more responsive in handling Judge Hicks: Please do not make excuses. Be prepared, do criminal and civil cases to the general public as a whole, your homework and respect each other. but then we run into another problem; a lack of a public On the weekends, you can most likely be found..... resources to address this issue. Judge Hicks: Working on my house. Another trend I have noticed is the birth of collaborative law, which involves the attorneys and clients who make Who is going to have the best year, Seahawks, a contract to resolve a dispute amicably, but if they fail, Sonics or Mariners? both attorneys agree to withdraw. As a result, parties have Judge Hicks: It seems the Seahawks are catching the breaks a true commitment towards reaching an amicable solu- they need lately so maybe that will right the ship and carry tion, knowing full well that if they do not reconcile their them forward through the rest if the season. As for the issues, they will be forced to start over again. This is a Sonics, they definitely surprised me last year, but I don’t persuasive tool to resolve disputes early and responsibly. know why they let Nate go. As for the Mariners, I want to If given unfettered authority over the judicial system be a fan, but they are making it awfully difficult these days. in Thurston County, or the State of Washington, what We should also mention and admire the championship of would you do? the Seattle Storm. Judge Hicks: The most important issue I see is the quality of work coming from the courts, as well as its partici- pants. This quality includes building respect among our- selves and not taking the necessity for civility for granted.

10 Winter 2005/2006 And the Defense Wins Trial Victory for Aaron Rocke and John Nicholson have been lessened. Plaintiff further argued that it was Aaron V. Rocke and John R. Nicholson, Assistant At- not rocket science to design a propeller guard that was torneys General, earned a defense verdict in Gutierrez v. practicable and feasible and that several after-market DSHS, an employment discrimination case tried in federal propeller guards were available. Plaintiff argued that the court at Yakima, Judge Robert Whaley presiding. Plain- defendant, as one of the predominant manufacturers of tiff was an affirmative action officer or human resources speedboat engines as well as propellers, was in a market specialist for 20 of his 31 years with DSHS. He sued for position to convince all boat manufacturers that propeller discrimination/retaliation for three employment decisions, guards should be part of their products’ standard features. one of which was dismissed on summary judgment. Using three engineers and a propeller guard inventor/ At trial, he argued the department’s failure to promote him small propeller guard manufacturer, plaintiff presented his was discrimination on the basis of race (Hispanic) and in product liability claims against the defendant. Plaintiff’s retaliation in violation of Titles VI (opposing discrimina- presentation of evidence included marine testing of two tion in federally funded programs) and Title VII (opposing different types of speedboats on a plane with propeller employment discrimination). He also complained that guards affixed around the propeller, as well as biomechani- his supervisory responsibilities were restricted in retalia- cal testing evidence. Plaintiff asked the jury for $14.8 tion for advocating for Hispanic clients (Title VI). The million in damages. department proved that he lost the promotion to another The defense maintained that propeller guards were mark- Hispanic by an independent interview panel who knew edly unsafe when used on speedboats, which would be nothing about his opposition activities. As to the restric- operating at speed, on a plane. Through a detailed testing tion of supervisory responsibilities, it was for several, program conducted by naval architects utilizing the pro- legitimate managerial reasons. The jury heard testimony peller guard that plaintiff asserted should have been sur- from 14 witnesses and returned a defense verdict in about rounding the propeller, as well as an identical speedboat, 20 minutes. the defense demonstrated that propeller guards will cause Jay D. O’Sullivan and Susan W. Geiger Successfully significant handling problems, including loss of control, Defend Boating Manufacturer when used on speedboats. Lead counsel, Jay D. O’Sullivan, assisted by Susan W. The defense utilized experts who were all highly experi- Geiger, of the Seattle law firm ofO’Sullivan & Blotch, enced in hydrodynamics and marine engineering issues, PLLC successfully defended a large recreational boating and who gave testimony that countered the plaintiff’s and engine manufacturer in a speed- Continued on Page 13 boat accident involving a 22-year-old plaintiff coming into contact with the speedboat’s spinning propeller when the speedboat accidentally backed up. As a result of the ac- cident, the plaintiff suffered a right above-the-knee amputation, loss of a testicle, a neurologically damaged left leg and significant abdominal scarring. The plaintiff, a Navy petty officer, was confined to a wheelchair, ending plaintiff’s Navy career. Plaintiff argued that, if the speed- boat’s propeller only had a propel- ler guard, plaintiff’s severe injuries would not have happened or would

Winter 2005/2006 11 Local Discovery Limitations and the “Discrete Subparts” Rule By Nathaniel B. Green Jr., Hollenbeck, Lancaster. Miller & Andrews On September 1, 2005, King County pattern interrogatories), “including all but one interrogatory for purposes of Superior Court adopted local rules discrete subparts.” the local rule. limiting the number of Interrogatories Unfortunately, the newly enacted local At the time of the Ginn decision, there and Requests for Admission one party rule provides absolutely no guidance as was authority supporting both posi- can propound to another. The idea was to what is meant by the term “discrete tions. In Clark v. Burlington Northern to try to curb the practice of sending subparts.” Fortunately, the federal R.R., 112 F.R.D. 117, 118 (N.D. unduly burdensome discovery requests courts have been dealing with discov- Miss. 1986), the United States District that were sometimes designed (argu- ery limitations for years, and there is a Court for the Northern District of ably) only to keep the other side busy nicely developed body of federal case Mississippi held that “an interrogatory (as if that is ever a problem in a defense law defining that term. And, Wash- is to be counted as but a single ques- practice). Additionally, many attorneys ington case law provides that because tion for purposes of [our local rule], apparently viewed CR 36 Requests of the similarity between many of the even though it may call for an answer for Admission as a possible source of federal rules and Washington’s civil containing several separate bits of infor- supplemental income, since reasonable rules, cases interpreting federal rules are mation, if there is a direct relationship attorneys fees could be recovered for pertinent in the construction of similar between the various bits of informa- failure to admit. In fact, before the new Washington rules. See, e.g., Weyer- tion called for.” Interestingly, another discovery rules became effective, it was haeuser Sales Co. v. Holden, 32 Wn.2d Federal Magistrate Judge in the District becoming increasingly common for 714, 203 P.2d 685 (1949). Federal of Nevada had adopted a contrary inter- certain attorneys to forward hundreds discovery law should therefore help to pretation of the “discrete subpart” rule, of requests for admissions, directing establish the contours of the “discrete holding that the local rule “requires opposing parties to admit such things subpart” issue in King County. that every part of an interrogatory be as the reasonableness and necessity of For federal authority discussing the counted and subject to the limitation individual line entries in voluminous “discrete subpart” rule, the best place to of 40.” See Valdez v. Ford Motor Co., medical records. I once received a set start is Ginn v. Gemini Inc., 137 F.R.D. 134 F.R.D. 296 (D. Nev. 1991). containing 636 Requests for Admission. 320 (D. Nev. 1991). Ginn involved The Ginn court ultimately decided Fortunately, the Superior Court Judge an action for wrongful discharge. The that the Clark rule was the better assigned to the case was not inclined to defendant served its first set of inter- rule. The Magistrate Judge in Ginn force me to respond to such “reason- rogatories on the nine named plaintiffs reasoned that the Valdez rule forced able” discovery, and granted my motion soon after litigation commenced; each litigants to choose between two for a protective order, striking the set included from 10 to 21 inter- “equally unattractive options.” In the entire set. rogatories. Most of the interrogatories interest of conserving the number of Now, there is a new potential discovery contained one or more “compound” interrogatories used, a party might battle looming on the horizon. New questions or subparts. Plaintiffs refused tend to propound questions that are King County Local Rules 26(d)(1)(A) to answer any of the interrogatories, “objectionably vague or compound.” and (B) limit the number of CR 33 contending that, including subparts, Ginn, 137 F.R.D. at 321. If, on the Interrogatories in those cases with defendant’s interrogatories exceeded the other hand, the propounding party “court approved” pattern interrogatories limit imposed by the District Court’s includes “logically or factually related (subpart A) and without (Subpart B). Local Rule 190. Defendant, on the and subsumed subparts” in order to Subpart A provides, “In cases where a other hand, claimed that its interroga- give the interrogatory the desired party has propounded pattern interrog- tories were well within the local limit degree of specificity, a literal reading atories pursuant to KCLR 33, a party because each interrogatory subpart was of the local rule would require that may serve no more than 15 Interroga- “sufficiently related to each other to be each subpart, no matter how nar- tories, including all discrete subparts, in counted as a single interrogatory.” De- rowly drawn, be counted as a separate addition to the pattern interrogatories.” fendant argued that when the subparts (emphasis added). Subpart B limits the are related, they should be counted as number of Interrogatories to 40 (absent Continued on Page 14

12 Winter 2005/2006 And the Defense Wins From Page 11 argument that a propeller guard would have made a posi- tive difference. They utilized video demonstrations of water testing using an identical speedboat, with significant on-board instrumentation, as well as land-based GPS communicating with onboard GPS and the equivalent of a “crash dummy.” The defense offered a biomechanical engineer who testified that, at a speed of only five miles per hour, contact between the metal propeller guard and a swimmer could cause a depressed skull fracture. Moreover, the video presentation revealed that if the idling speedboat engine were suddenly thrust into reverse at full throttle, a tremendous suction force would be created by the spinning propeller blade despite the presence of the guard, and it would be sufficient to pull the swimmer into contact with the cutting edge, eviscerating the abdomen of the dummy. Lastly, the defense presented evidence from studies funded by the U.S. Coast Guard that showed that the use of pro- peller guards could create hazardous conditions, including the possibility of loss of control of the vessel. After three and a half weeks of trial, the jury deliberated for less than two hours and returned with a defense verdict, finding that the marine speedboat engine was reasonably safe without a provision for propeller guards.

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Winter 2005/2006 13 Local Discovery From Page 12 interrogatory. Id. The Ginn court and necessarily related to the primary mary questions (e.g., “Please state your believed that: question.” Kendall, 174 F.R.D. at 685. name, address, and telephone num- the latter option could too quickly The Kendall court reasoned as follows: ber”), then the question should count as exhaust the propounding party’s If the questions are relevant to interrogatory, notwithstanding the supply of interrogatories, and case, it could be argued that all the subparts. If a subsequent question is unnecessarily cramp the party’s interrogatories are “related.” If that not “secondary” to the primary question fact gathering ability. Legitimate were the case, then all the (e.g., “Please state your name, address, discovery efforts should not have to interrogatories would only be telephone number, and whether you depend upon linguistic acrobatics, counted as one and there could have been convicted of a crime”), then nor should they sap the court’s never be an excessive number. the subsequent question that is not sec- limited resources in order to resolve By the same token, the mere ondary to the primary question counts hypertechnical disputes. inclusion of “and” or “also” in a as a separate interrogatory. Ginn, 137 F.R.D. at 322. The court question (or double question) does The reasoning of Ginn and Kendall then held that “interrogatory subparts not automatically mean the should be applied to King County are to be counted as part of but one questions are separate or “discrete” Local Rule 26. The Ginn and interrogatory for the purposes of [the and not subsumed within the initial Kendall rules would allow King County local rule] if they are logically or factu- or primary question. practitioners to avoid having to choose ally subsumed within and necessarily Id. The Kendall court determined that between the two “equally unattractive” related to the primary question.” Id. the test of whether subsequent ques- choices discussed in Ginn. “Logically or factually related” subparts giving the However, Ginn does not end the analy- tions within a single interrogatory are interrogatory a “desired degree of speci- sis. In Kendall v. GES Exposition Serv., “subsumed and related” is to examine ficity” and “necessarily related to the Inc., 174 F.R.D. 684 (D. Nev. 1997), whether the first question is “primary”, primary question” should be counted as the court, after adopting the Ginn and subsequent questions are “second- one interrogatory for purposes of King analysis, addressed what it considered ary to the primary question.” Stated County’s local rule, as should “subse- to be “the more difficult question” of another way, can the subsequent ques- quent questions that are secondary to determining when a subpart is in fact tion “stand alone,” or is it “independent the primary question.” “logically or factually subsumed within of the first question.” If the subsequent questions are “secondary” to the pri- It’s really rather simple, isn’t it? Verdicts and Settlements Construction Site Accident The Facts The general contractor for this proj- Litigation: The Plaintiff and the “TJ” was a 31-year-old roofer who ect, a company we will call “GC,” was Defense View was paralyzed from the waist down the owner-developer/general contrac- [Editor’s note: The following article is based on at a construction site when he fell 20 tor of a project in South Seattle to an actual case, but pseudonyms are used for the feet and landed on his back. He fell build four new residential multiplex names of the parties in order to preserve client units. GC was not a big commercial privacy and confidences. Opposing counsel on when part of a temporary wooden this case corroborated on the writing of the ar- scaffold broke beneath him. It was general contractor, but it had de- ticle for the benefit of their colleagues. They are: difficult to determine the precise veloped and built several residential Matt Knopp of Peterson, Young, Putra, Fletcher, configuration of this scaffolding projects before this one. GC had an Zeder, Massong & Knopp, P.S., who represented onsite superintendent – “Sam” – to the plaintiff, Roy Umlauf, of Forsberg Umlauf, before the incident, or exactly what P.S., who represented the defendant, and Ann part of it broke and failed, because oversee this job. GC hired a subcon- Rosato now with PYP, formerly with Forsberg after TJ’s fall, the general contractor’s tractor – “FrameSub” – to do the Umlauf.] superintendent had the scaffolding framing work on the project, and torn down and discarded to avoid any FrameSub, in turn, subcontracted the other injuries occurring from use of work out to a small mom-and-pop the makeshift scaffolding. Continued on Page 16 14 Winter 2005/2006 Welcome New Members WDTL welcomes the following members who have recently joined our organization. A big THANK YOU to our members who referred these individuals to WDTL.

Jerome R. Aiken Meyer, Fluegge & Tenney, PS Kimberly R. Ashley Meyer, Fluegge & Tenney, PS Ronald W. Atwood Ronald W. Atwood, P.C. Referred by Joan Morgan Elizabeth A. Baker Gierke, Curwen, Metzler & Erie, P.S. Referred by Gregory B. Curwen Derek A. Bishop Referred by Jennifer Campbell Jean M. Boler Seattle City Attorney’s Office Andrew G. Cameron Catherine C. Clark Williams Clark PSC Referred by David Swartling Stephanie P. Dikeakos Seattle City Attorney’s Office Deborah A. Dunlap Gulliford McGaughey & Dunlap, PLLC Referred by Shellie McGaughey George P. Haldeman Seattle City Attorney’s Office A. Clarke Johnson Johnson, Graffe, Keay, Moniz & Wick, LLP Michael A. Lehner Lehner & Rodrigues, PC Mary E. Levenson Eims & Flynn, P.S. Elizabeth P. Martin Gordon, Thomas, Honeywell, Malanca, Peterson & Daheim LLP Referred by Brad Maxa Jodi A. McDougall Cozen O’Connor Referred by Melissa O’Loughlin White Tuere L. Sala Seattle City Attorney’s Office Jill R. Skinner Helsell Fetterman LLP Vicki M. Smith Bodyfelt Mount Stroup & Chamberlain, LLP Referred by Richard A Lee Jason E. Soderman Murray Dunham & Murray Anne E. Vold Seattle City Attorney’s Office Kinnon W. Williams Williams Clark PSC Referred by David Swartling

Winter 2005/2006 15 Verdicts and Settlements From Page 14 framing subcontractor – “Small- cover the shed roof with sheet metal. his legs. Jim Bob yelled for help and Time.” SmallTime’s owner, “Pete,” It was expected the job would take someone on the site called 911. The worked side by side with his employ- less than a week. aid car arrived in a matter of min- ees, many of whom were casual labor, On the day he was injured, TJ arrived utes, assessed TJ, placed him on a to do the work. on the site with his foreman and backboard, and prepared to transport On two of the multiplex units, co-worker, “Jim Bob.” This was the him to a nearby hospital. Before the between the first and second floors, first time either of them had been to aid car left the scene, Sam told one halfway up the side of the building, this particular jobsite. Upon arriving of his laborers to tear the temporary a small, skirt-like roof known as a at the site, Jim Bob sought out GC’s wooden structure down. This vio- “shed” roof was constructed. This superintendent, Sam, before starting lated GC’s company safety manual. shed roof wrapped around one corner to work. Jim Bob and TJ were there The manual required that whenever of one of the units. It was at that for only an hour before TJ fell. Sam a significant jobsite injury occurred, corner of the building where, be- later testified that, while he was not photographs were to be taken of the cause of the topography of the land, clear on the particulars of his interac- area and instrumentalities involved, the distance from the shed roof to tion with Jim Bob, he was certain that the evidence was to be preserved for the ground was 20 feet. Elsewhere, he did not know that SmallTime had later inspection, and the incident was the shed roof was only about 10 feet left any scaffolding behind. Jim Bob to be reported to the Department of above the ground. testified that Sam actually pointed out Labor and Industries. In this case, Sam did none of these things. At In order to construct or “frame up” the scaffolding on the corner of the deposition, Sam’s stated reason for the shed roof on the outside of the unit and then Sam gave him the green immediately tearing down the scaf- buildings, Pete, the owner of Small- light to use it. folding was that he saw it as a hazard Time, decided to build a temporary In any case, Jim Bob went to check and he did not want someone else to wooden scaffolding to provide a work out this small section of scaffolding. risk injury. platform while he and his workers He noted that it had no railing. He were framing the shed roof. This was assured himself that it was strong Liability From the the only such scaffolding that was enough to bear either his or TJ’s Plaintiff Perspective built or used on the project before TJ weight. Shortly thereafter, TJ went by Matthew G. Knopp got there. Although Pete did not re- up to take a look for himself. He Liability of GC member whether or not he extended decided that a second plank would Originally, we filed this case only the scaffolding around the corner of make it safer to use, so he found a against the general contractor, GC. the building, and although the rest plank on a nearby stack of lumber Although we were brought in to the of the temporary scaffolding had that looked identical to the plank that case within a week after it happened, been removed before TJ arrived at was already on the scaffolding. TJ and were able to visit and photo- the site, the only reasonable explana- went back up and screwed the plank graph the site, the scaffolding had tion for this small, four-foot section’s down right next to the first plank, in already been discarded. We knew existence was that it was built by Pete order to make a wider, safer platform. from interviewing Jim Bob that he or someone working for SmallTime, He was wearing a harness and safety had been shocked to see the scaffold- and forgotten when they left the job lanyard when he stepped up onto ing being torn down before the aid several days before TJ arrived. this structure. He was just prepar- car left with TJ. From his and TJ’s TJ had worked for an employer, ing to set an anchor point on which description of the scaffolding, it was “RoofTop,” for several years. Just to tie off his lanyard, when he felt apparent that it did not meet several a few months before his devastat- and heard a crack, and he fell to the aspects of relevant scaffold regulations ing injury, TJ had slipped off a roof ground. found in WAC 296-155, subpart J-1. and broken his wrist. RoofTop was It was immediately obvious both At a minimum, it had no railings, its a fairly small roofing subcontractor to Jim Bob and to TJ, that TJ was platform was too narrow and it was that was hired by GC to come in and seriously injured. TJ could not feel Continued on Next Page 16 Winter 2005/2006 not made of scaffold-grade lumber. importance. No photographs were leaving behind the section of wooden We felt that Sam’s conduct in allow- taken and plaintiff had no opportu- scaffolding involved in plaintiff’s fall. ing the roofing subcontractor’s work- nity to examine it before GC de- With this information, we amended ers to use this scaffolding was itself a stroyed it. As to culpability or fault, the complaint to join as additional safety violation of WISHA. Under the issue turns on whether or not the defendants FrameSub and SmallTime. Stute v. PBMC, Inc., 114 Wn.2d 454 party who destroyed the evidence did From our perspective, this brought (1990), a general contractor is liable if so knowing of its importance, i.e., to the table all parties who shared re- it violates its non-delegable duty and in bad faith or without an innocent sponsibility for plaintiff’s injury, and primary responsibility for complying explanation for the destruction. increased the likelihood that he could with applicable WISHA safety regula- Here, GC’s superintendent, Sam, be fairly compensated for his injury. tions. Safety violations related to the admitted that his company safety Liability of SmallTime scaffolding itself seemed clear. manual required him to preserve the SmallTime’s principal defense was To make matters worse for GC, evidence. We felt that his excuse for that plaintiff could produce no evi- Sam claimed he never even noticed immediately tearing down and dis- dence that it had built the scaffolding scaffolding around the corner of the carding the scaffolding just would not involved in TJ’s fall. However, we building, while at the same time wash. While there is no doubt that felt that the evidence that SmallTime claiming that he did regular safety this scaffolding was a hazard, nobody did so was compelling. SmallTime’s walk-around inspections. Clearly, was about to use it in the moments owner, Pete, testified that he did not an adequate safety walk-around after TJ fell. We were confident that remember whether or not he had inspection could not have been done we would get a presumption that the built scaffolding around the corner without noticing that this four-foot destroyed evidence would have been of the building. He admitted that in section of scaffolding had been left favorable to GC. every other place on the project, he behind by SmallTime. At deposition, At the time the case was initially routinely built temporary wooden Sam conceded that he never walked brought against GC, we did not even scaffolding. The testimony of other around that end of the building dur- know that another subcontractor had witnesses, including GC’s superin- ing his safety inspections. been involved in the project, let alone tendent, Sam, confirmed that the that one had built the temporary scaf- We also felt that our liability case scaffolding from which plaintiff fell folding and left it behind. However, against GC was greatly strengthened was consistent in all respects with the shortly after the complaint was filed by its destruction of the scaffolding, scaffolding that Pete admitted to hav- and served, we learned from GC’s which we contended constituted ing built: it looked the same; it was defense counsel, Roy Umlauf, that spoliation of evidence. the same height; it was made from GC only carried $1 million of liabil- Spoliation is defined as “the inten- the same type of lumber; and the ity coverage and that a subcontractor, tional destruction of evidence.” lumber dimensions were the same. In “FrameSub,” had contracted to do the Henderson v. Tyrell, 80 Wn. App. addition, Sam testified that the only framing work. 592, 605, 910 P.2d 522 (1996). As possible purpose for any temporary a remedy, the court may apply a Therefore, we had to determine scaffolding around the corner of the rebuttable presumption which shifts whether there was another respon- building was to frame the shed roof the burden of proof to a party that sible party who should be joined as a there. He also said that there were destroys or alters important evidence. defendant. We conducted a records no other subcontractors doing any Id. Whether to apply that rebuttable deposition of “FrameSub.” During work on the project that would have presumption depends on two factors: this dep, we all learned for the first required the construction of any such (1) the potential importance of the time that the actual framing work scaffolding. had been further subcontracted out missing evidence, and (2) the culpa- We felt that we had a good liability to “SmallTime.” Records produced bility or fault of the adverse party in case against SmallTime. The duty at deposition made it clear that destroying it. Id at 607. In this case, that a general contractor owes to the SmallTime was most likely the party the missing evidence - the temporary employees of one of its subcontrac- wooden scaffolding - was of central responsible for building and then Continued on Page 18

Winter 2005/2006 17 Verdicts and Settlements From Page 17 tors is generally broader than the duty Liability of FrameSub went up on the temporary scaffold- owed by one subcontractor to em- As mentioned, FrameSub had hired ing, and because he added a plank of ployees of another. This broader duty SmallTime to fulfill the obligations scrap lumber. This was a real concern of the general contractor arises out of its contract with GC. Discovery for plaintiff. However, we felt that of a recognition of its general super- revealed that FrameSub had a super- this risk was significantly reduced by visory authority over the jobsite, and intendent for this project, “Gordo,” the following evidence: plaintiff did is the reason why Washington law who testified that he was on the site check the plank he chose. It appeared places upon the general contractor the almost every day, and that his duties sound, it looked identical to the one primary responsibility for complying included overseeing the work of its already in place, and he added it to with applicable safety regulations. subcontractor, SmallTime, and do- make a safer, wider platform. As for However, any subcontractor on a ing weekly safety walk-arounds and tying off, TJ had to be up on the plat- jobsite owes a duty to all workers on weekly safety checklists. He acknowl- form to be able to set his anchor as that project when that subcontrac- edged that it was his job as Frame- a tie-off, and he was preparing to tie tor either is in control of, or creates a Sub’s superintendent to monitor the off when the structure broke beneath dangerous condition: site for safety. FrameSub’s contract him. Finally, nobody could say what A general contractor bears the with SmallTime authorized FrameSub part of the structure broke because primary responsibility for employee to suspend SmallTime or remove it of GC’s spoliation of evidence. compliance with safety regulations from the project if it did not comply Still, plaintiff’s own conduct was of because the general contractor’s with all relevant safety regulations. sufficient concern that it bore heav- “innate supervisory authority Gordo testified that FrameSub was ily in plaintiff’s decision to accept constitutes sufficient control over very hands-on on this project and he significantly reduced compensation in the workplace.” Stute v. PBMC, conceded his obligation to make sure settlement. (The case was settled for Inc., 114 Wn.2d 454, 464, 788 the job was done right, and was done a total of $2 million.) P.2d 545 (1990). But a safely. He further testified that he was Employer Sole Fault? subcontractor is liable to the responsible for the final punch list Under RCW 4.22.070 (1) and our extent that it controls or creates after SmallTime left the project, and Supreme Court’s decision in Edgar a dangerous condition. [Citations therefore he bore responsibility for v. City of Tacoma, 129 Wn.2d 621, omitted.] insuring that no temporary structure 919 P.2d 1236 (1996), the plaintiff’s Jones v. Halvorson-Berg, 69 Wn. App. such as the scaffolding was left in employer is not an entity against 117, 124-25, 847 P.2d 945 (1993); place. whom fault may be assessed in a rev. den., 122 Wn.2d 1019 (1993). Gordo testified that he did a com- construction site accident. However, Plaintiff’s construction safety expert plete walk-around after SmallTime evidence of employer fault may be opined that the scaffolding built by left the jobsite and that there was no admitted if there is sufficient evidence Pete was not in compliance with the temporary scaffolding in place at the from which a jury could conclude WAC regulations because, among corner of the building. We felt that that plaintiff’s injury was a result other things, it was not built using Gordo’s testimony lacked credibil- of his employer’s sole fault, or if his required scaffold-grade lumber. Pete ity. Nevertheless, we recognized that employer’s fault, combined with his had testified that he built the scaffold- FrameSub’s liability was likely to be own, together was the sole cause of ing using scavenged framing lumber viewed by the jury as significantly less his injury. Lamborn v. Phillips Pacific from the jobsite. The documents that than that of the other defendants, and Chemical, 89 Wn.2d 701, 575 P.2d described the lumber package for this that there was a chance of a no-liabil- 215 (1978). In light of the substan- project revealed that no scaffold-grade ity finding as to FrameSub. tial evidence of negligence on the part lumber was delivered to this jobsite. Comparative Negligence of defendants, we did not feel it likely that the jury would conclude that the Defendants claimed that TJ was sole fault for this accident was either comparatively negligent, primarily

because he was not tied off when he Continued on Next Page 18 Winter 2005/2006 that of TJ’s employer, RoofTop, either Early on, we identified the subcon- verdict. While we believe we had a alone or in combination with his own tractors and provided the information number of liability defenses, avoid- fault. In fact, we felt that a pretrial to plaintiff’s counsel to allow amend- ing an excess verdict was my client’s motion in limine to keep out evidence ment to the pleadings to add the primary goal. of employer fault had a good likeli- other subcontractors as defendants. The “Sole Proximate hood of success. We needed to convince plaintiff to Cause” Argument sue the other defendants because we The Defense Perspective by Ann H. Rosato did not have indemnify/additional in- by Roy A. Umlauf One of our strategies for defend- sured provisions in the subcontracts. From the outset of the case, I had ing GC was arguing that the “sole concerns because my client had only Once the other defendants were proximate cause” of TJ’s accident was a $1 million primary policy and was brought into the suit, we worked with RoofTop’s negligence, TJ’s negligence, exposed to a significant potential plaintiff’s counsel to find witnesses or a concurrence of the two. Given excess verdict. Also, it was a case who supported plaintiff’s liability GC’s violations of its own safety where it was unlikely that my client theories against the other defendants policies, avoiding liability entirely could be dismissed on summary judg- to avoid potential summary judg- was unlikely. However, substantial ment. Accordingly, our goal was to ment motions by the co-defendants. evidence existed to make the pitch try to settle the case within the limits In a sense, we were “plaintiffing the that evidence of RoofTop’s negligence to avoid an excess verdict. Typically, defense” of the case. should be admissible to rebut the alleging the fault of a subcontractor As discussed below, one of our theo- proximate cause element of plaintiff’s (when representing the general con- ries was to argue that the plaintiff and prima facie case. We planned to argue tractor) in a construction site injury his employer were the sole proximate that because there was “substantial case can be risky. We investigated cause of the accident. Although this evidence” of RoofTop’s negligence, an whether there were potential defen- sole proximate cause argument is not instruction on sole proximate cause dants to increase available funds for a always a successful argument with a should be submitted to the jury. global settlement. At the outset, we jury, it allows the defendant to bring TJ’s supervisor, Jim Bob, was respon- talked with plaintiff’s counsel about in evidence of employer conduct sible for TJ’s safety at the construc- how we could work together to maxi- that can mitigate the jury’s view of tion site and assumed and carried mize potential insurance coverage for defendants. We had good evidence out the responsibility of testing the a global resolution. We learned early of employer responsibility since both scaffolding to ensure it was safe prior on that other subcontractors were plaintiff and his supervisor were well to allowing TJ to get onto the scaf- involved with the construction of the aware that they had to tie off and they folding. After testing the scaffolding, scaffolding and could have potential had not done so. Also, plaintiff was Jim Bob permitted TJ get onto the exposure. The problems we faced involved in constructing the platform 20 foot high scaffolding without first included: by adding a plank. Finally, contrary requiring TJ to secure his fall protec- (1) Limited primary insurance to plaintiff counsel’s assertions, there tion equipment. In fact, Jim Bob for our client ($1 million limits); was no intent by our client to destroy never used fall protection to secure the evidence. Rather, our client was (2) Stute liability concerns for the himself before getting onto the scaf- concerned after the accident that general contractor; folding to test its safety. We argued no one else would be injured on the that there were numerous anchor (3) Significant injuries (plaintiff jobsite. Our client was not aware points that could have been utilized was a paraplegic); and that the scaffolding had been partially so that TJ would have been secured (4) My client did not have taken down. prior to getting onto the scaffolding contracts with the subcontractors Settlement was reached after me- and exposing himself to a fall hazard. that included risk transfer diation. By working together with A defense expert opined that when provisions (indemnity/additional plaintiff’s counsel we were able to TJ made the decision to add a second insured requirements). protect my client from an excess board to the temporary wooden scaf-

Continued on Page 20 Winter 2005/2006 19 Verdicts and Settlements From Page 19 folding, TJ “made it his own” and of the plaintiff’s employer’s negligence Wn.2d 701 at 706. assumed the responsibility of comply- for the purpose of negating proximate In 1996, the Washington Supreme ing with safety regulations related to cause, i.e., showing that GC’s alleged Court’s decision in Lamborn was scaffolding erection. Finally, both negligence was not the proximate upheld in Edgar v. City of Tacoma. TJ and Jim Bob were experienced cause of the accident that caused In Edgar, the plaintiff (“Edgar”) was roofers who were very familiar with TJ’s injury. killed in a construction site accident fall hazard regulations and require- Non-immune defendants, like GC, at a dam owned by the City. Edgar ments. We argued that they knew or “may still avoid liability by establish- was employed by the general con- should have known that the tem- ing that the negligence of plaintiff’s tractor. The City sought to have a porary wooden scaffolding, which employer was the sole proximate percentage of fault assigned to Edgar’s admittedly appeared to be partially cause of the accident.” Edgar v. City employer, and the trial court ruled disassembled and lacked guard rails, of Tacoma, 129 Wn.2d 621, 630 (cit- that the City had a right to ask the was not safe for standing. Rather ing to Lamborn v. Phillips Pac. Chem. jury to assign a percentage of fault than utilizing the scaffolding, TJ and Co., 89 Wn.2d 701, 575 P.2d 215 to Edgar’s immune employer. The Jim Bob should have either used a (1978). In Lamborn, the plaintiff trial court reasoned that the 1993 ladder to frame the shed roof, or built (“Lamborn”) was injured when he fell amendments to the contributory new safety-compliant scaffolding to from his employer’s tank truck while fault system, which removed immune complete their work. loading ammonia at the defendant’s employers from the list of entities to Below is a summary of Washington manufacturing plant. Lamborn whom fault may be assigned, were case law relevant to the “sole proxi- claimed the defendant, as owner of unconstitutional because they violated mate cause” issue. Counsel for both the plant, failed to provide both a the City’s right to a jury trial. plaintiff and defendant should be reasonably safe place to work and The Washington Supreme Court familiar with this law and prepared to reasonably safe equipment. At trial, reversed the trial court and held that argue about its application in every the defendant argued that the sole the 1993 amendments do not violate construction site accident case. proximate cause of Lamborn’s injury the City’s right to a jury trial. The was either Lamborn’s own negligence, Under Washington’s Industrial Insur- court reasoned that the exact percent- the negligence of Lamborn’s em- ance Act, Title 51 RCW, employers age of fault attributable to an im- ployer, or a concurrence of the two. are entitled to immunity for injuries mune employer has no legal effect on Over Lamborn’s objection, the trial that occur while an employee is acting the liability of the parties, so the jury court admitted evidence of Lamborn’s within the course and scope of his or will not be asked to make a deter- employer’s negligence. Following her employment.1 Employer immu- mination of the immune employer’s Lamborn’s appeal, the matter was nity is further emphasized in RCW fault. Edgar, 129 Wn.2d 621 at certified to the Washington Supreme 4.22.070(1), whereby immune em- 632-33. However, the court high- Court for review. ployers are specifically removed from lighted its holding in Lamborn and the list of entities to whom fault may The Washington Supreme Court noted that an exception exists when be assigned. Consequently, a worker upheld the trial court’s admission of the defendant’s theory is that the sole injured on a construction site has no evidence of Lamborn’s employer’s proximate cause of the accident is the first-party cause of action against his negligence because it was the defen- plaintiff’s employer’s negligence: or her employer, and, the jury will dant’s theory that the sole proximate Lamborn would support the not be permitted to allocate partial cause of the accident was Lamborn’s admission of evidence of employer fault to the injured worker’s employer employer’s negligence, Lamborn’s own fault even after the 1993 at trial. Nevertheless, a key issue in negligence, or a concurrence of the amendments. Non-immune every construction site accident case two. The court held that evidence of defendants, like the City, may still is whether the defendant contractors Lamborn’s employer’s negligence “was avoid liability by establishing that will be permitted to present evidence both relevant and properly admit- ted by the trial court.” Lamborn, 89 Continued on Next Page

20 Winter 2005/2006 the negligence of the plaintiff’s If the actions or inactions of third Matthew G. Knopp, WSTLA EAGLE employer was the sole proximate parties were the reason that the lid member, is a principal in the Seattle cause of the accident. flew open, then these actions were firm of Peterson, Young, Putra, Fletcher, Edgar, 129 Wn.2d at 632-33 (empha- the cause of the accident, not [the Zeder, Massong & Knopp, P.S. His sis added). manufacturer’s] design of the fryer. practice emphasizes medical negligence, In that event, defective or not, the construction accident and personal Evidence of an immune third party’s design of [defendant’s] fryer did injury cases. He currently serves on negligence is admissible to negate an not legally cause the accident and the WSTLA Board of Governors as the essential element of the plaintiff’s [plaintiff’s] claim is defeated for Second Vice President of Public Affairs. case, for example, proximate cause. failure of proof of the essential In Geurin v. Winston Indus., Inc., element of proximate cause. 316 F.3d 879 (9th Cir. 2002), the Roy Umlauf is a shareholder with plaintiff was injured while cooking Geurin, 316 F.3d 879, 884 (citing Forsberg & Umlauf, P.S. in Seattle. chicken in a fryer manufactured by Edgar and Lamborn, supra). His broad insurance and litigation de- the defendant. The plaintiff was The Ninth Circuit’s decision in fense practice includes commercial and employed by the owner of a Kentucky Geurin illustrates a fundamental personal lines insurance, general liabil- Fried Chicken franchise in Spokane, distinction between proving an af- ity, construction claims, products and Washington. The defendant raised firmative defense and negation of an personal injury defense, bad faith, legal the affirmative defense of third party essential element of plaintiff’s case. malpractice and underinsured motor- liability and the plaintiff moved for Regardless of the adequacy of an ist claims. He is a Past President of the partial summary judgment to dismiss affirmative defense of the employer’s Washington Defense Trial Lawyers. the defense to the extent it pertained third-party liability, we argued that to plaintiff’s employer and co-work- GC was entitled defend the lawsuit Ann Rosato, WSTLA EAGLE mem- ers. The district court granted the by presenting evidence that negated ber, is an associate at Peterson, Young, plaintiff’s motion and dismissed the proximate cause, which is an essential Putra, Fletcher, Zeder, Massong & defense of third party liability. The element that plaintiff had the burden Knopp, P.S. in Seattle. Her practice district court also granted a motion in of proving. focuses on personal injury, construction limine excluding all evidence regard- accidents and medical negligence. ing maintenance of the fryer. The Endnotes: jury returned a verdict in favor of the plaintiff. 1. An exception is noted when injury results to a worker from the “deliber- On appeal, the Ninth Circuit, ate intention” of his or her employer. applying Washington State law, held Deliberate intent requires the injured the district court erred by excluding worker to prove that the employer evidence concerning the maintenance, had actual knowledge that injury was or lack thereof, by the employer certain to occur and willfully disre- and stated: garded such knowledge. See Birklid Even if the dismissal of the defense v. Boeing, 127 Wn.2d 853, 860, 904 of third-party liability had been P.2d 278 (1995); Vallandigham v. correct, the evidence of third-party Clover Park School Dist., 154 Wn.2d fault would still have been 16, 109 P.3d 805 (2005). admissible to negate an essential element of the plaintiff’s case – proximate cause.

Winter 2005/2006 21 22 Winter 2005/2006 Winter 2005/2006 19 Upcoming WDTL Events (2005-2006) (register online at www.wdtl.org)

January May 24 Judicial Reception & Dinner – Tacoma 5 CLE – Insurance Law Update, February Daveport Hotel, Spokane 24 CLE – Annual Update on 17-June 7th Construction Law, Seattle Wed. Evenings CLE – Defense Academy II, Seattle March 12 CLE – Advanced Trial Tactics, Seattle 31 CLE – Annual Update on Construc- June tion Law, Southwest Washington 16 CLE – Law Practice Roundtable, April Safeco Field, Seattle 7 CLE – Insurance Law Update, July Washington State Convention and 13-16 Annual Convention – Westin Trade Center – Seattle Whistler, British Columbia

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