Isabel Sanner has wanted to be a lawyer since seventh grade. Now, she’s joining Friedman Rubin to pursue the kind of advocacy that inspired her to go to law school in the first place.
 
Isabel’s interest in the law started with a simple idea: she wanted to help people find a way forward when they felt like they had nowhere else to turn. She was drawn to the profession because she saw lawyers as advocates who could help create greater equality and be a catalyst for change. As the first person in her immediate family to attend law school, becoming a lawyer was a goal she pursued with a special purpose.
 
At Seattle University School of Law, Isabel found her home in advocacy. She competed regionally and nationally in Moot Court and Dispute Resolution Competitions and served in leadership of the Latinx Law Student Association. But it was her experiences outside the classroom that ultimately cemented her interest in plaintiff-side litigation.
 
Isabel first discovered personal injury law while working at the Law Office of J.D. Smith. She later worked as a legal assistant and intern at Schroeter Goldmark & Bender, where she saw more closely what it means to advocate for people who have been harmed and are seeking accountability. Those experiences made plaintiff-side work feel like more than a career path; they made it feel like the right fit.
 
“I’ve always wanted to be the person who helps someone see the light at the end of the tunnel,” Isabel says. “Plaintiff-side work gives me the opportunity to stand beside people when they are going through some of the most difficult experiences of their lives and fight for them.”
 
Along the way, Isabel also gained experience on the other side of the courtroom and in public-interest advocacy. She served as a Rule 9 Legal Extern for the Honorable Richard A. Jones at the United States District Court for the Western District of Washington and completed an externship with the Northwest Immigrant Rights Project.
 
Isabel became interested in Friedman Rubin because of the firm’s approach to trial advocacy and its commitment to its clients, which was what ultimately drew her in.
 
“I knew I wanted to work somewhere where the people and the work genuinely mattered,” Isabel says. “Friedman Rubin felt like that place.”
 
Now, as she begins the next chapter of her career, Isabel is excited to put her advocacy skills to work alongside a team of experienced trial lawyers and continue learning from every case, client, and courtroom.
 
When she’s away from the office, Isabel is usually looking for an excuse to get outside or plan her next trip. She loves traveling, hiking, swimming, spending time with family and friends, and watching movies.
 
And, of course, after wanting to become a lawyer since seventh grade, she’s pretty excited to finally get to do it!
 
Welcome to Friedman Rubin, Isabel!

Amy Herdy is joining Friedman Rubin as an investigator, bringing a career spent exposing wrongdoing, uncovering difficult truths, and giving a voice to people whose stories might otherwise go unheard.

Herdy’s relationship with Friedman Rubin began in 2016, when she first met attorneys Rick Friedman and Peter Mullenix while conducting research for the documentary that would become The Bleeding Edge. The 2018 Netflix Original investigated systemic failures in the medical device industry and the devastating consequences for patients. The film received both the George Polk Award for Medical Reporting and the Alfred I. duPont-Columbia University Silver Baton Award—the first documentary feature to receive both honors.

After The Bleeding Edge, Herdy began the investigative work that would become HBO’s Allen v. Farrow, a project that required vigorous reporting and an extraordinary level of dedication.

Herdy went on to lead the fact-checking effort for Netflix’s Harry & Meghan, working closely with legal teams in both the United States and the United Kingdom on one of the most closely scrutinized documentary series of its time. Her work has included relentless reporting, meticulous fact-checking, extensive witness interviews, and building compelling narratives from complex facts.

Over the years, Herdy stayed in touch with Friedman and Mullenix and developed a deep respect for the firm’s commitment to advocacy—defending the underdog, standing up to powerful institutions, pursuing civil rights and social justice, and holding rule breakers accountable.

“I’ve always been drawn to investigative work because I believe deeply in the power of facts to expose wrongdoing and give people a voice,” Herdy said. “What has always attracted me to Friedman Rubin is its commitment to advocacy. That’s the work I’ve been doing throughout my career, and I’m delighted to now bring my investigative skills to a team whose values align so closely with my own.”

For Herdy, the move represents a natural evolution of her investigative work: bringing the skills she has honed throughout her career to a team where rigorous investigation, led by a dedication to the truth, can help hold wrongdoers accountable and achieve justice.

Friedman Rubin is pleased to share that Best Lawyers® have recognized our firm in their 2026 Best Law Firms ranking for Insurance Law, Personal Injury Litigation – Plaintiff, and Product Liability Litigation – Plaintiff.
The 2026 Best Law Firms rankings indicate a collaborative effort spanning the U.S., with thousands of firms, clients and leaders providing input. Over 18,700 firms participated in the survey process, with 4,900 submitting responses.
Feedback also came from 27,000 lawyers and over 110,800 client submissions, demonstrating broad engagement within the profession. The research incorporated 26 million evaluations, covering 129,000 lawyers and 24,000 firms, along with 16,401 client comments.

We at Friedman Rubin are honored by this recognition of our work on behalf of our clients.

The Washington Supreme Court has reinstated a $185 million jury verdict against Monsanto, reviving claims brought by three teachers at Sky Valley Education Center in Monroe, Washington. The teachers and more than 200 students, employees, and parents alleged they developed cancer and other serious health problems due to exposure to polychlorinated biphenyls (PCBs) leaking from the school’s light fixtures—chemicals manufactured by Monsanto, which Bayer acquired in 2018.

The Supreme Court reversed a lower appellate court’s decision that had vacated the verdict, finding that Missouri law—where Monsanto made key decisions about PCBs—should apply to issues of punitive damages and the statute of repose. This ruling allowed the teachers’ claims to proceed and upheld the punitive damages awarded. The decision may affect other pending appeals, as most related claims have been settled except for nine cases still on appeal.

Rick Friedman, one of the attorneys for the plaintiffs, stated: “This ruling sends a clear message: companies that conceal the risks of toxic chemicals must be held accountable.” Monsanto, meanwhile, criticized the decision and said it is considering its legal options.

PCBs were widely used in electrical equipment and building materials until they were banned by the U.S. government in 1979 due to links to cancer and other health risks. Plaintiffs claim Monsanto knew of these dangers for decades but concealed them from regulators and the public. Bayer has argued that the levels found in the school were within limits deemed safe by the EPA and that the school ignored warnings to retrofit aging fixtures.

This Supreme Court decision not only reinstates the $185 million verdict but also sets a precedent for how courts may apply state law in complex product liability cases involving hazardous substances and corporate accountability. Read the full opinion here: (Erickson Decision).

To see media reports click below:

1. 1. $185M verdict for toxic lights in WA school upheld by state’s high court | The Seattle Times
   2. Rick Friedman’s interview with Fox13 News
   3. Wash. Justices Reinstate $185M Monsanto PCB Verdict – Law360
   4. Bayer’s Monsanto Must Pay $185 Million After State Supreme Court Restores Chemical Leak Verdict | NTD
   5. $185M verdict for toxic lights in WA school upheld by state’s high court – Spokesman-Review
   6. Washington Supreme Court restores $185 million verdict for teachers allegedly poisoned by Monsanto-made PCBs – The New Lede
   7. $185 million verdict restored against Bayer unit – Business Insurance
   8. How a $185 Million Ruling Impacts Monsanto’s Future in Washington

 

Friedman Rubin has for many years represented clients affected by toxic exposure in the Sky Valley Education Center school — cases that underscore a problematic reality: even when funding is available, too many schools fail to act.

As reported by the Seattle Times, Washington state set aside $1.3 million to help schools remove fluorescent lights containing PCBs, a banned chemical linked to cancer and other serious health issues. Yet only one school district has used the funds. Despite outreach efforts by the Department of Ecology, most districts have left this money untouched, allowing hazardous conditions to persist in classrooms.

This inaction is deeply unsettling. The dangers of PCBs are well-established, and the consequences—illness, disruption, and legal battles—are severe. Our clients know this firsthand.

At Friedman Rubin, we remain committed to holding institutions accountable and advocating for those harmed by environmental negligence.

Ken Friedman has become a Fellow of the American College of Trial Lawyers, one of the premier legal associations in North America.

The induction ceremony took place during the recent Fall Meeting of the College in Washington DC.

Founded in 1950, the American College of Trial Lawyers is composed of the best of the trial bar from the United States and Canada. Fellowship in the College is extended by invitation only to those experienced trial lawyers of diverse backgrounds who have mastered the art of advocacy and whose professional careers have been marked by the highest standards of ethical conduct, professionalism, civility, and collegiality. Lawyers must have a minimum of fifteen years trial experience before they can be considered for Fellowship. The College is widely considered to be the premier professional trial organization in North America. The College maintains and seeks to improve the standards of trial practice, professionalism, ethics, and the administration of justice through education and public statements on important legal issues relating to its mission. The College strongly supports the independence of the judiciary, trial by jury, respect for the rule of law, access to justice, and fair and just representation of all parties to legal proceedings.

Ken is the third member of Friedman | Rubin PLLP to receive this honor, joining Rick Friedman and Cheryl Snow as Fellows in the College.

Seattle, WA – September 25, 2025 — Nationally recognized plaintiff’s personal injury and medical malpractice law firm Friedman | Rubin PLLP has secured a $1.26 million jury verdict in Stout v. Rice, a wrongful death and medical malpractice case against Dr. James W. Rice, Jr. in King County Superior Court.

The complaint in the lawsuit filed on behalf of Bethany Stout, widow of Neiland E. Stout, alleged that Dr. Rice’s negligent overprescription of opioids and benzodiazepines caused Mr. Stout’s fatal overdose. Evidence presented at trial showed that within a few months, Dr. Rice prescribed more than 1,300 pills of opioids and benzodiazepines without proper monitoring or medical justification. The jury found Dr. Rice liable for medical negligence, awarding $1,261,925 in damages for lost earnings, emotional suffering, and loss of companionship.

“Every year, more than 100,000 Americans die from drug overdoses, which has become this country’s leading cause of deaths among teenagers and young adults,” said Alex Ackel, trial attorney with Friedman | Rubin. “This verdict holds physicians accountable and reinforces the importance of patient safety in pain management.”

Friedman | Rubin is a Seattle-based personal injury, medical malpractice and wrongful death law firm representing clients nationwide.

Henry Jones, a partner of Friedman | Rubin PLLP, has been accepted into the American Board of Trial Advocates (ABOTA).

ABOTA dedicates itself to the preservation and promotion of the Seventh Amendment, which guarantees the right to civil jury trials. Members in this prestigious invitation-only group must have tried a minimum of 10 civil jury trials to conclusion. More than 7,600 lawyers and judges are involved in ABOTA chapters in all 50 states. The general purposes of ABOTA is to foster improvement in the ethical and technical standards of practice in the field of advocacy to the end that individual litigants may receive more effective representation and the general public be benefited by more efficient administration of justice consistent with time-tested and traditional principles of litigation.

“ABOTA is one of the nation’s most effective organizations in championing the ethics, professionalism and principles of the legal profession, and I’m honored to be part of this select group,” Henry says.

Henry helps people who are injured through no fault of their own. He focuses his practice in the areas of insurance bad faith, products liability, wrongful death, personal injury, and complex commercial litigation. Henry represents individual clients in Washington and throughout all of the United States.

Henry received his undergraduate degree from New Mexico State University in 2001 and his J.D. from the State University of New York at Buffalo Law School in 2004. He went on to earn his L.L.M. from Georgetown University Law Center in 2005.

Henry joins Rick Friedman, Ken Friedman, and Colleen Durkin Peterson as Friedman | Rubin PLLP Partners that are members of ABOTA.

Friedman | Rubin is pleased to share that Rick Friedman was recognized by Best Lawyers^® as the 2026 Product Liability Litigation – Plaintiffs “Lawyer of the Year” award winner in Seattle. Rick received this distinction also in 2024 (also Personal Injury Litigation – Plaintiffs that year), 2019, and 2014.

Friedman | Rubin attorney Julie Kays was recognized by Best Lawyers^® as the 2025 Civil Rights Law “Lawyer of the Year” award winner in Seattle.

Five Friedman | Rubin attorneys were recognized in the 2026 edition of The Best Lawyers in America^®: Rick Friedman (Personal Injury and Product Liability Litigation – Plaintiffs), Richard Dykstra (Insurance Law), Julie Kays (Personal Injury Litigation – Plaintiffs), Colleen Durkin Peterson (Personal Injury Litigation – Plaintiffs), and Cheryl Snow (Personal Injury Litigation – Plaintiffs).

Earlier this year Friedman | Rubin attorneys Rick Friedman, Ken Friedman, and James Hertz were recognized as among the 2025 Lawdragon 500 Leading Plaintiff Consumer Lawyers, with Rick Friedman also recognized as a member of the Lawdragon Hall of Fame.

They are all honored by this recognition of their work on behalf of the firm’s clients.

504 law firms including Friedman | Rubin have signed onto an amicus brief filed Friday supporting Perkins Coie’s challenge to President Donald Trump’s executive order targeting the law firm.

The lawsuit filed by Perkins Coie in March seeks to permanently block enforcement of an executive order targeting the firm for its diversity-focused hiring efforts and past political representation. The brief says:

In recent weeks, the president has issued not one but five executive orders imposing punitive sanctions on leading law firms in undisguised retaliation for representations that the firm, or its former partners, have undertaken, and more may be in the offing . . . Those orders pose a grave threat to our system of constitutional governance and to the rule of law itself. The judiciary should act with resolve—now—to ensure that this abuse of executive power ceases.

While Perkins Coie is focused on defending itself against the impacts of the executive order, the amici law firms provide their diverse perspective to the court on the impacts of the order:

Amici seek to provide the court with a broader perspective on the threat that the executive order—which is an unconstitutional act of undisguised retaliation for representations that plaintiff has undertaken in the past—poses to the integrity of our adversarial system, to the ability of clients to obtain the zealous representation to which they are constitutionally entitled, and to the rule of law itself.

Former Solicitor General Donald Verrilli, Jr. of Munger Tolles is among the counsel to the amici. He is the second former Solicitor General to represent a party in an action against the government over the president’s executive orders involving large law firms, following Paul Clement’s decision to represent Wilmer Hale in its own lawsuit against the Trump administration.

The brief comes the same day a group of 346 former federal and state court judges also filed an amicus brief in the case supporting Perkins Coie “[T]he order undermines the rule of law by threatening the independence of lawyers and litigants to petition courts to redress their grievances,” the former judges’ brief said. “In particular, the order imposes political restrictions—and viewpoint-based sanctions—not only on lawyers who assert disfavored positions, but on their clients in unrelated proceedings. By restricting the range of permissible legal argument and constraining the professional independence of counsel, the order undermines the constitutional role of the courts as independent forums for adjudicating disputes.”

Perkins Coie sued over the executive order on March 11, claiming that the order was aimed at discouraging representation of certain clients. It also said the order was issued in retaliation for the Seattle-based firm’s representation of former Sen. Hillary Clinton’s 2016 presidential campaign and its defense against the Trump campaign’s efforts to improperly overturn the results of the 2020 election. A day later, Judge Howell entered a temporary restraining order, saying the executive order violated the firm’s right to free speech, association and due process. The judge also cautioned that it would have “a chilling harm of blizzard proportions” on the legal profession if it were allowed to stand any longer. She then directed the Trump administration to tell all federal agencies to withdraw requests for disclosures about government and contractor relationships with Perkins Coie.

A spokesperson for Perkins Coie released a statement on the law firms’ amicus brief Friday. “We are grateful for the support of over 500 law firms, as well as numerous other amici, in our challenge to the unconstitutional Executive Order and the threat it poses to the rule of law,” the statement said.

One summer morning, Joslyn Schofield was sitting at a table in the outdoor seating area at a Starbucks coffee shop when a runaway pickup truck crashed into the seating area, striking her and causing fatal injuries. Her estate sued, alleging in the Complaint that Starbucks had a duty to protect customers in sidewalk sitting areas and that the risk of a crash like this was foreseeable and not uncommon.

The trial court, however, dismissed the lawsuit on Starbuck’s motion, holding that Starbucks had no duty to protect customers from an event so unforeseeable.

The Court of Appeals, however, overturned that decision and reinstated the case, stating:

Businesses owe a duty of reasonable care to their
customers, and this duty of care is well-recognized under Utah
law. When a plaintiff invokes that duty of care in a complaint and
grounds that invocation with allegations showing that the duty
applies, dismissal for failure to state a claim on the issue of duty
is improper. In this situation, disputes concerning the
foreseeability of the alleged harm and the circumstances that gave
rise to Starbucks’ purported failure to warn or protect Joslyn are
questions that go to breach and proximate cause, and not to duty.
Accepting the allegations in the Schofields’ complaint as true,
Starbucks owed Joslyn a duty of reasonable care, and the district
court’s determination to the contrary was erroneous.

The entire decision can be read here: Schofield v. Starbucks.

The estate was represented by David Roosa, Ken Friedman and Ron Park of Friedman Rubin and S. Brook Millard of Smart Schofield Shorter, PC. The appeal was briefed and argued by Ron Park (oral argument).

We are thrilled to share the news that Colleen Durkin Peterson has joined Friedman Rubin as a Partner.

Colleen is no stranger to Friedman Rubin, as during her time at her previous firm Pfau Cochran Veretis Amala she and her team had co-counseled with us on a large mass tort for several years.
Colleen has been an attorney for 12 years and graduated from Gonzaga Law School where both her father, John Durkin, and uncle, Frank Ladenburg, attended. She grew up in their law firm and later worked with Jim Holman for 8 years where she learned how to try medical negligence cases. Colleen enjoys the medicine aspect of personal injury cases as well as getting to know her clients so that she can meaningfully convey their losses to the defense, mediators, the court, and juries.

A jacuzzi tub played a certain role when Colleen at an early age decided to become the President of the Washington State Association for Justice. You can read more about that in this Sept 2023 Trial News article. Friedman Rubin doesn’t have a jacuzzi tub in the office but despite this obvious deficiency Colleen decided to join us anyway, and we couldn’t be happier. Her full profile is available here.

When not dominating in the court room as the extraordinary trial lawyer she is, Colleen enjoys spending time with her husband and two children. One of her Happy Places is Kailua where she spent summers growing up at her grandparents’ house and spending time with their family.

Welcome to Friedman Rubin, Colleen!

By Alex Ackel and Richard Dykstra

This article was reposted from the November 2024 issue of Trial News, the monthly newspaper of the Washington State Association for Justice.

Typically, commercial general liability policies are occurrence based, meaning coverage is triggered by an occurrence of “bodily injury” or “property damage” within the policy’s term. Insurance claims are therefore necessarily tendered within the applicable statutes of limitation, which usually avoids having to deal with insurance policies older than a few years. However, due to the discovery rule, there are some instances in which liability coverage is provided under much older insurance policies.

This is particularly true in the context of environmental and toxic tort cases,¹ where long periods of time can transpire between the initiating injury and discovery of plaintiff’s damages. But when an insured receives a claim alleging injury first occurring 30 or 40 years ago, the odds that an insurance policy from the ’80s or ’90s was retained or digitally archived can be slim to none. This task is further complicated if the insured had switched brokers and carriers over the years, which is not uncommon.

The aim of this article is to share our experience with lost policy cases and identify common issues that arise, as well as discuss the relative duties and burdens of the insured and insurer in attempting to prove or disprove the existence of coverage.

Locating lost policies
The first step in any lost policy case depends on whether the insured knows who their insurer was at the time of the alleged occurrence of injury to persons or property. If this is known, the first step is to contact this insurance company and tender the claim. However, there is no guarantee that the insurer will be able to find a copy of the original policy. In one past case, we had an insurer-defendant claim it was unable to find policies from the ’70s and ’80s despite being provided the certificate of insurance, which contained specific policy information including the policy number and effective dates of coverage.

Typically, when faced with a claim for coverage under a lost policy, the adjuster will have to submit a special request to the archive department to search the insurer’s databases. Every company organizes its archives differently, so the more information you provide regarding the policy, the more likely it is that evidence of it will be found. This would include information such as: policy number; effective dates; name of original insurer (in the instance that the original insurer was bought or merged with another company); city of insured at the time of issuance; and type of coverage (general liability, property liability, etc.). Because the insurer’s failure to retain an insurance policy is generally not held against them in the context of coverage litigation, it might not be surprising to find that carriers are not particularly motivated to search for evidence of old policies.

If the identity of the original insurer is unknown, the insured should conduct a thorough search of their own records. Archived board meeting minutes, correspondences to insurance brokers, and invoice materials are all potential sources for relevant information. In certain industries, companies, such as construction contractors, are required to file certificates of insurance with the Department of Licensing which can be obtained through a records request.² There are even “insurance archeologists” who can assist in conducting such searches.

Proving the terms of coverage without the actual policy
In reality, finding a decades-old insurance policy in the back of some dusty bankers box is the exception, not the general rule. In most cases, you’ll be left trying to prove the terms of coverage through secondary evidence. “The burden of proof is on the insured to show that a loss falls within the terms of the policy. Once the insured has sustained that burden, then the burden shifts to the insurer to prove that the loss is not covered because of exclusionary provisions within the policy.”³ As is the case with various other lost documents, the common law requires that this burden be met with clear and convincing evidence of the terms of the insurance contract.

The process of proving the terms of coverage is extremely case-specific. For example, in City of Tacoma v. Great American Ins. Co., the Western District of Washington noted that the burden of proving coverage may be met by investigating coverage custom and practice, comparing coverage in similar policies, and looking into records of premiums paid for known coverage.⁴ However, no matter what secondary evidence is submitted, the terms of coverage must be proven by more than documentary evidence referencing the mere existence of coverage. For example, in Boyce Thompson,⁵ which involved lost CGL policies, the insured offered ledger sheets indicating periodic payments to its insurance broker for the years of the purported lost policies, as well as an affidavit of an employee of its insurance broker stating that insured had employed the broker for CGL coverage by the defendant insurer.⁶ The court found this evidence did not satisfy the clear and convincing standard.⁷ In a similar case in which the S.D.N.Y. applied Washington law, it attempted to elucidate the distinction between evidence that does and does not meet the clear and convincing standard:

Plaintiffs’ evidence with respect to the pre–1961 policies pales by comparison to their evidence in connection with the 1961 and 1967 policies. On the later policies, plaintiffs submitted documentary evidence supporting their existence and establishing their terms. The evidence included contemporaneous documentation and correspondence consistent with the previous practice of the parties. In certain instances, one piece of evidence corroborated another. Also, plaintiffs presented evidence of the policy number and the policy term, information completely lacking for the pre–1961 years.⁸

The general takeaway is that everything and anything related to the lost policy should be viewed as potentially valuable evidence. Internal business records, insurance ledgers, correspondence, and other documents listing policy numbers and effective dates, such as certificates of insurance, can all be used to prove the terms of coverage. Standardized forms that the company used are also important evidence, but are not dispositive unless accompanied by evidence of what the insured purchased. It is unlikely that any one piece of evidence is adequate alone to prove coverage, but various pieces of evidence, especially if they corroborate each other, can be used to concretely define the terms of coverage. For example, in a case we successfully litigated involving 40-year-old policies and an underlying asbestos claim, we produced testimony from an expert policy archeologist who drew inferences from certificates of insurance, extracts from the insurers’ internal database containing details on policy transactions, specimen policy forms, and handwritten notes on the policy documents.⁹

Discovery in lost policy cases
As outlined above, searching for secondary evidence can be crucial in proving the terms of a lost policy. Your client and its insurance broker may be able to track down valuable evidence, but you will also need to conduct discovery of the insurer. To compose intelligent discovery requests for this information, it often makes sense to first serve discovery directed towards learning how the insurer’s archives are maintained. This can be complicated, especially if the original insurer was acquired by another company in the time since the policy was issued and the original insurer’s archive was merged or transitioned into the new insurer’s system.

In most cases, there will be several different databases with potentially relevant information. To start, we recommend composing discovery requesting information such as the names of the insurer’s various databases and the types of information and documents contained in those databases. Some of this information may be gleaned from reviewing the claims file materials, but there is still no guarantee that the insurer searched all the relevant databases in investigating the claim. Sometimes, the best way to get this information is through requesting the insurer’s claims manuals specifically used in lost policies investigations, which often contain detailed descriptions of the insured’s databases:

REQUEST FOR PRODUCTION NO. 1: Please produce your claims manual, guidelines and/or procedures concerning the handling of claims arising out of lost policies, including any amendments, revisions, additions or deletions thereto in effect from 2015 through 2024.

Once you have a general lay of the land, you can start asking specific questions regarding the insurer’s databases. Due to the technical nature of these information systems, a 30(b)(6) deposition is almost inevitable. Although every case is unique, the following are some examples of topics to consider in drafting the notice:

Topics

1. All efforts to train Your employees to investigate [DATABASE NAME] for hard copies and electronically stored claims data or claim files that might include information about [NAME OF INSURER]’s Liability Policies.
2. All efforts You made to train Your claims handlers and supervisors on when and how to conduct a lost policy investigation.
3. The approximate average number of lost policy searches requested to be conducted for each year between 2015 thru 2024.
4. When and how was any data obtained from any search of [NAME OF DATABASE] was used to reconstruct any of the admitted policies [only use in case where some policies have been admitted].

There is also a chance that the insurer has litigated lost policy cases in the past. Although the issue has become more common in recent years, it is still not so common that an interrogatory inquiring into prior litigation would be overly burdensome. We have used the following:

INTERROGATORY NO. 1: Identify any civil action filed in any court within the United States in which [NAME OF INSURER] is or was a party, within the last 15 years, related to its investigation of allegedly lost (or unavailable or not sufficiently documented) general liability policies allegedly issued by [NAME OF INSURER].

We often like to follow that up with a request for any and all discovery exchanged in the prior case(s) related to the issue of lost policy searches, including deposition testimony. If this is objected to, you can always reach out to the attorneys who handled the prior case(s).

You’ll also want to make sure that you request the insurance company to identify all other claims that the insured had tendered over the years. If a claim has been tendered under the lost policy in the past, perhaps while the policy records were still available, there is a much higher likelihood that the insurer will have relevant information related to the policy in that old claim file. For example, in one lost policy case we handled, there were excerpts of the relevant policy found in the claim file of a separate claim tendered decades earlier. Again, the key is to first gain as much information about how the data is stored, before you start conducting discovery for the relevant data.

Insurer’s duty in lost policy cases
The insurer’s duty to search for lost policies is no different than its general duty to conduct a reasonable investigation into a claim. Sometimes, an insurer will be tempted to reject the claim and refuse to defend the insured if no policy documents can be produced. However, the insurer runs a risk by doing this because as shown above, coverage can be proven in the absence of the actual policy. In Ulbricht, we received a ruling that the insurer violated its duty to defend by refusing to provide a defense despite the insured providing certificates of insurance to the adjuster. There, the court held:

In this case, although the actual policies were missing at the time PM Northwest tendered the lawsuit to USF&G, PM Northwest sent certificates of insurance on July 10, 2018. (See 12/3/21 Ackel Decl., Ex. M at 1-2.) USF&G tries to diminish these certificates as showing nothing more than “the insured’s promise to establish the policy terms at some future date” (USF&G MSJ Reply at 10) but, in fact, they contained the policy number; names of the insurer and insured; the dates on which the policies expired; a description of the type of insurance; and the limits of bodily injury liability. (See 12/3/21 Ackel Decl., Ex. M at 14-18.) With that quantity of information in hand, USF&G could have certainly undertaken a defense of PM Northwest, even under a reservation of rights, without fear that it would be “impos[ing] upon itself a duty to defend a complete stranger to the contract.”

Under Ulbricht, any evidence that a policy existed between your client and the insurer would go a long way to, at a minimum, securing a defense.

Conclusion
Overall, lost policy cases pose challenges in both the initial investigation phase as well as evidentiarily. Thorough investigation is essential in obtaining the necessary information to prove the terms of coverage. Discovery can also be technically complicated, requiring detailed understanding of how the insurer composes and maintains its archives and databases. This additional effort, however, is often worth it as it can lead to securing coverage for your client that they had paid for and are owed.

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Richard Dykstra and Alex Ackel are both EAGLE members whose practices include insurance coverage and bad faith claims for policyholders.

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¹ WAC 284-30-920 outlines the procedure for handling lost policy disputes in the context of “environmental claims.” Notably, the term “environmental claim” is defined broadly enough that one could argue that it would apply to almost any toxic tort cases as well: “Environmental claim” means a claim for defense or indemnity submitted under a general liability insurance policy by an insured facing, or allegedly facing, potential liability for bodily injury or property damage to others arising from a discharge of pollutants into land, air, or water.” WAC 284-30-910.
² It is important to note that a Certificate of Insurance is not proof of the terms of a policy and alone would not be sufficient to establish the terms of coverage. However, they typically include invaluable information for searching for lost policies including the policy number; names of the insurer and insured; the dates on which the policies expired; a description of the type of insurance; and the limits of liability.
³ City of Tacoma v. Great American Ins. Companies, 897 F. Supp. 486, 487 (W.D. Wash. 1995).
⁴ Id.
⁵ Boyce Thompson Institute for Plant Research, Inc. v. Ins. Co. of North America, 751 F.Supp. 1137 (S.D.N.Y. 1990)
⁶ Id at 1140–41.
⁷ Id at 1141.
⁸ Id.
⁹ United States Fidelity and Guaranty Co. v. Ulbricht, No. C20-0369JLR, 2022 WL 110457, ∗9 (W.D. Wash. Jan. 12, 2022).
¹⁰ Ulbricht, 2022 WL 110457, at ∗13-14.

 

We are thrilled to report that Greg Davidheiser, a member of the in-house Investigator team at Friedman Rubin, finished an epic Ironman World Championship, accomplishing a goal he set for himself several years back. The atmosphere was electric with competitors from all over the world. The weather was hot and humid with lots of wind on the bike course across the lava fields of the Kona coast. Greg competed like a champion to the end and finished in the top third of the race, an incredible achievement. Well done, Greg!

Watch Greg finish the race in style!

Friedman | Rubin is pleased to announce that Rick Friedman for the third year in a row has been ranked as the Number One 2024 Washington Super Lawyer. Published each year, Super Lawyers selections are based on peer nominations and are validated by independent research. In addition to Rick, Friedman | Rubin attorneys Ron Park (Appellate – Rising Star), Richard Dykstra (Insurance Coverage), Ken Friedman (Personal Injury General: Plaintiff), Julie Kays (Personal Injury General: Plaintiff), Cheryl Snow (Personal Injury General: Plaintiff), Rachel Luke (Personal Injury Products: Plaintiff), and Sean Gamble (Personal Injury General: Plaintiff) were also recognized as 2024 Washington Super Lawyers. They are all honored by this recognition of their work on behalf of the firm’s clients.

By Rachel Luke, Friedman | Rubin, PLLP

This article was reposted from the June 2024 issue of Trial News, the monthly newspaper of the Washington State Association for Justice.
https://www.trialnewsonline.org/trialnews/june_2024

Deliver Them From Evil: A Camille Delaney Mystery
By Amanda DuBois
Girl Friday Books, 2023
Paperback $16.95

In Deliver Them From Evil,Camille Delaney is back as a personal injury attorney struggling in her solo practice. Thankfully, she has a brilliant team consisting of her paralegal, Amy, investigator, Trish, and her supportive family. Against her better judgment, Camille takes on a medical malpractice case involving the death of a baby during delivery. Camille had determined that it was a “low value” case: the client had fired the attorney who was handling the case before and he had a lien on any award, and to make matters worse, the doctor who committed the malpractice was known and loved by everyone in the Seattle obstetrics community. Her reason for ignoring the red flags? Justice.

Deliver Them From Evilwould make an excellent outline for an ethics course. Camille makes one bad decision after another, finding herself in impossible situations that risk everything that she stands for as well as her own safety. She pushes boundaries and crosses the line more than once. Camille is an impulsive risk taker. Will this case be worth it, or should she play it safe?

Unfortunately for Camille, things start unraveling for her as soon as she takes this case. Camille has some unexpected staffing issues in her team. She cannot afford to hire an expert, and it will be near impossible to find anyone to testify against the beloved defendant doctor. Camille is spread thin and missing out on time with her family while her opposing counsel is burying her in motions and discovery requests. At the same time, she is thrust into awkward situations such as finding out that a good friend of hers is the father of the defendant doctor. She has some client control issues. Camille is dealing with pressure from all areas of her life due to taking on this case. Can she get a quick settlement and move on? Should she?

Deliver Them From Evilis pure entertainment. Similar to The Complication,the first book in the Camille Delaney mystery series, you will be required to give some grace as the litigation portrayed in this book is not entirely based in reality. If you can let that go, this is a thrilling mystery with many twists to keep you turning the pages. And while our own cases may not be quite as suspenseful as this mystery, I think that the Camille Delaney mystery series will appeal to litigators. Each case we take is a mystery and we are required to reveal the unknown. Even when we have our initial theories when we accept a case, we never have the full story, and it is our job to pull the thread and unravel the truth in discovery and at trial.

Camille makes several questionable choices in this book, but she gains ground and new friends along the way. In addition to Amy and Trish, who make reappearances in this second mystery, Camille befriends a legal messenger, Lucia, and a consulting psychologist, Larabelle. This dynamic group of women, their relationships, and character stories help add depth to this legal mystery that would otherwise read as a typical mystery. Throughout the two books, author Amanda DuBois reveals the stories behind these powerful characters that provide the humanity we look for in our protagonists, flaws and all.

Like Amanda DuBois’s first book, all proceeds from the sales of Deliver Them From Evil are donated to the Full Circle Scholarship and social justice organizations listed on her website.¹ The Seattle University School of Law Full Circle Scholarship provides $5,000 each year for a student whose life has been directly impacted by the criminal justice system, with a preference for students who have been incarcerated.² The third book in the series is expected to be published in 2025. I will be looking forward to that title and cheering for Camille’s legal successes in the future!

¹ https://amandadubois.com/#Proceeds
² “New scholarship helps formerly incarcerated students come full circle.” Seattle University School of Law. Oct. 6, 2021, New scholarship helps formerly incarcerated students come full circle.” Seattle University School of Law. Oct. 6, 2021, https://law.seattleu.edu/about/newscenter/2021/new-scholarship-helps-formerly-incarcerated-students-come-full-circle.html.

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Rachel Lukeis an attorney at Friedman Rubin PLLP in Seattle, Washington. Rachel represents clients in aviation, personal injury, product liability, and wrongful death cases. She previously served as cochair for WSAJ’s Diversity Committee and is an EAGLE member.

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By Alex Ackel

This article was reposted from the May 2024 issue of Trial News, the monthly newspaper of the Washington State Association for Justice.

In the simplest terms, data visualization is the graphic representation and presentation of data. Effective data visualization can be a potent storytelling tool. Our brains rely on visual context for processing and storing information. When done well, data visualization can distill complex—and sometimes monotonous—information so that it can be easily understood and remembered.

For various reasons, in the context of medical malpractice cases, it can often be difficult to obtain usable or relevant data to present to the jury. First, obstacles such as concerns for patient privacy and quality improvement privileges can sometimes be legitimate objections to requests for relevant health care data. Additionally, because of the inherent information imbalance we face, it can be impossible to know what health data is discoverable and obtainable. The goal of this article is to provide a brief introduction to data visualization and provide some considerations for obtaining and presenting data in your next medical malpractice case.

Considerations for making effective data visualizations
In creating an effective data visual, your main goal is to make it easy for the viewer to understand the point you are trying to make. Complexity is your enemy. The whole purpose of data visualization is to convey complicated information in a manner that is easy to digest and remember. The challenge is balancing the need to present enough information so that the visual is impactful, but without too much detail to overwhelm or distract the viewer. Your audience should know exactly what they are looking at within five seconds of seeing your visual and then understand the conclusion your visual is making within the next five seconds, regardless of the complexity of the subject matter. As a general rule, your visual should only include data and elements that are strictly necessary for making your point. Simplicity and clarity should be your two driving considerations.

Generally, an effective visual has four key elements: (1) the data/information; (2) your story; (3) your conclusion; and (4) the visual form itself. The story is what makes the data relevant to your viewer and your conclusion or goal is what makes the visual useful to the jury in determining the issues in the case.

Obtaining useful data
In the world of business, data is essential for understanding and measuring performance. The healthcare industry is no different. In fact, the proliferation of electronic medical records systems has made health care providers especially capable of generating a vast array of different types of health care statistics. Overall, analysis of this data has led to higher quality health care and improved the accessibility of patient information. Health care providers regularly collect and analyze this data to evaluate their overall performance. This data can be helpful, for instance, in proving a pattern or practice of delivering substandard care.

For example, in Ryan v. Staten Island Univ. Hops.,¹ the plaintiff claimed that her terminally ill husband was fraudulently lured into unnecessary treatment by defendants’ aggressive false advertising. The plaintiff moved to compel the production of a database which listed all of the patients who were treated with the surgery her husband received. The database included a treasure trove of data fields such as diagnoses, year of treatment, type and location of cancer, date of birth, diagnosis date, date of death, dates of follow-up examinations, treatment start and end date, date of recurrence, and treatment completion.

In rejecting the defendant’s argument that HIPAA protected information like diagnosis and dates of treatment, the court held that as long as all personal identifying information was redacted, information that might otherwise by protected by HIPAA was discoverable.

Hospitals also collect and analyze data to evaluate the performance of its contractors. Also, hospitals often set targets for various metrics in their service agreements with their contractors. I have personally seen hospitals offer payment incentives to their contracted emergency room providers for meeting certain goals related to patient satisfaction survey results, wait times, and adherence to documentation requirements. All of that is potentially valuable data depending on the nature of your case.

For example, you might consider a request for production for any and all data collected and compiled from patient satisfaction surveys. Or even broader, a request for any and all data collected and compiled for the purpose of evaluating contractor performance. The latter may be more likely to yield an objection, but the raw data itself should not be protected. Remember, one of the marks of a good database is the ability to export discrete portions of data for analysis. Any burdensome objections are likely to be overstated.

One way of circumventing a potential objection is by issuing an interrogatory asking for a detailed description of the means by which the hospital evaluates the performance of its contractors, including any and all categories of data that it collects or analyzes. That may allow you to narrow your request for production to relevant data fields and may also give you valuable information for contesting the defendant’s objection.

But what if the data being tracked isn’t useful or specific enough to be meaningful in your case? Then you may have to collect and analyze your own dataset through discovery. For instance, if you are anticipating the defense arguing that the hospital was overburdened by a particular high volume of patients, you might consider the following:

INTERROGATORY NO. 1: For each and every patient who was admitted on the day of the Incident between 6:00am and 6:00pm, please specify the:

(a) time of arrival;

(b) time of triage;

(c) time roomed;

(d) time seen by a provider;

(e) chief complaint;

(f) acuity designation;

(g) provider name;

(h) discharge diagnosis; and

(i) exit time.

INTERROGATORY NO. 2: What was the average and median Arrival to Room time (time from when the patient arrived to when the patient was roomed) at the Defendant’s Emergency Department on the day of the Incident?

INTERROGATORY NO. 3: What was the average and median Room to Provider time (time from when the patient was roomed to when the patient was seen by a provider) at the Defendant’s Emergency Department on the day of the Incident?

We used the above in a failure to timely triage case in which our client presented with obviously life-threatening symptoms but was left waiting for 6 hours before being seen. That information, by itself, wasn’t enough to prove our liability case. The defense could argue that there were other patients whose symptoms were either more or just as critical as our client’s. Or, they could simply argue that they were a lot busier than normal that day. We needed to collect information about what was actually happening in the emergency department that day before we could know the best strategy for attacking those defenses. We propounded the above discovery and then converted the data into the visualization below.

Scatter plot visuals like the one at the bottom of this page are particularly good at showing the relationship between two variables from one set of data; in this case, patient acuity and wait times. They are most powerful when used to demonstrate contrast between the general population and an outlier, as seen in the illustration.

This visualization also demonstrates the importance of clarity and simplicity. Within only a few seconds, the viewer knows exactly what is being shown. The data is clear and easily read. The visual fits seamlessly into the story of a delay in treatment case and the conclusion almost goes without saying: the plaintiff arrived as one of the most critically ill patients at the hospital and was forced to wait the longest.

Overall, data visualization is a powerful tool for conveying large amounts of information into a small space. By thinking of visuals as an extension of your theme and theory, your visuals can add meaning to the data you obtain and make it useful and usable to the jury.

¹ No. 04-CV-2666, 2006 WL 3497875 (E.D.N.Y. Dec. 5, 2006).

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Alex Ackel is an EAGLE member whose practice focuses on medical malpractice, civil rights, products liability, and personal injury at Friedman Rubin PLLC in Seattle.

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Friedman | Rubin is pleased to announce that Rick Friedman has been ranked for the second year in a row as the top Super Lawyer in Washington for 2023. Published each year, Super Lawyers selections are based on peer nominations and are validated by independent research. Rick is honored by this recognition of his work on behalf of the firm’s clients.

By Lincoln Sieler, Friedman | Rubin, PLLP

This article was reposted from the June 2023 issue of Trial News, the monthly newspaper of the Washington State Association for Justice.
https://www.trialnewsonline.org/trialnews/June_2023

Although commercial trucks are among the safest vehicles on the road per mile traveled because most of their miles traveled are on the highway, they are also the most dangerous vehicles to be involved in a collision with due to their massive size and weight. Collision avoidance technology, such as automatic emergency braking, lane departure warning, and adaptive cruise control, has been proven to significantly reduce the risk of accidents and improve road safety. These technologies use sensors, cameras, and other detection systems to monitor the vehicle’s surroundings and assist the driver in avoiding collisions or mitigating their impact. Unfortunately, such technology is still not standard on most commercial vehicles.

As a result, product liability litigation against manufacturers for failing to equip trucks and buses with collision avoidance technology has become a relatively new but rapidly expanding area of law in recent years. Manufacturers typically respond to such claims by arguing that plaintiffs’ lawyers are unfairly trying to hold them liable for failing to equip their vehicles with state-of-theart, cutting-edge technologies. But these technologies are quite mature and governmental agencies have been asking commercial vehicle manufacturers for years to make this technology standard on all new vehicles.

Collision avoidance technology has been commercially viable for decades

The development of collision avoidance technology in the commercial trucking industry has evolved significantly over the years to improve safety on the roads and mitigate the risks associated with driver errors when it is used.

1970s: early developments. The concept of collision avoidance technology started to emerge during the 1970s, primarily in the aviation and maritime industries. During this period, the basic concept of using radar systems to detect potential collisions was developed, although it was not yet applied to commercial trucks.

1980s: early adopters. In the 1980s, some truck manufacturers started to experiment with early forms of collision avoidance technology. These initial systems were primarily radar-based and could detect objects in front of the vehicle but were not yet capable of taking automatic corrective actions.

1990s: introduction of ABS. The 1990s saw the introduction of Anti-lock Braking Systems (ABS) in commercial trucks. While not a collision avoidance technology in itself, ABS improved the safety of commercial trucks and buses by preventing the wheels from locking up during braking, thereby maintaining steering ability and reducing stopping distances. This decade also saw the early development of more advanced driver assistance systems such as Automatic Emergency Braking (AEB), Electronic Stability Control (ESC), Adaptive Cruise Control (ACC) and Lane Departure Warning systems (LDW).

2000s: advancements in technology. The 2000s saw significant advancements in the more active collision avoidance technologies. Features like Adaptive Cruise Control (ACC), which automatically adjusts speed to maintain a safe distance from vehicles ahead, Electronic Stability Control (ESC), which reduces the risk of rollovers and loss of control, Automatic Emergency Braking (AEB) which detects potential collisions with pedestrians and cars, alerts the driver and automatically applies the brakes if the warning is not heeded, all began to be offered in commercial vehicles. These features, however, were often optional and limited to higher end models as manufacturers tended to use these technologies as a marketing tool for product differentiation.

2010s: broader introduction of Advanced Driver-Assistance Systems. This decade saw the introduction and maturation of ever more sophisticated Advanced Driver-Assistance Systems (ADAS). These systems use a combination of radar, cameras, and other sensors to detect potential hazards and to actually take corrective actions, such as automatic braking or lane-keeping assist. More major truck manufacturers started to offer these systems as optional features.

Government agencies have been begging manufacturers to make the technology standard

Since the late 1990s, government agencies have been asking manufacturers to make these safety features standard on all new commercial trucks and buses. For example, the National Transportation Safety Board (NTSB) held a Public Hearing in 1999 on Advanced Safety Technology Applications for Commercial Vehicles focusing on technologies that could reduce the number of commercial vehicle accidents.

In his opening remarks, the Chairman of the NTSB stated that a large percentage of truck crashes involved rear-end collisions that could have been mitigated or avoided with the use of collision warning and avoidance technologies that were commercially viable and available even then:

Rear-end collisions such as these comprise roughly 28 percent of all highway accidents reported annually, and the Trenton collision was the ninth accident at this interchange in one month. We are still investigating these accidents. However, we do know that advanced technologies available today may have prevented them from happening. If the trucks had been equipped with collision warning technology, the drivers would have received audible and visual warnings that the headway between their trucks and the vehicles in front of them was closing quickly, giving the drivers more time to react and perhaps avoid the accidents.

Or, if these trucks had been equipped with electronic braking systems, the brakes would have adjusted automatically and activated more quickly than air brakes, allowing the alerted drivers to stop their trucks in a fraction of the distance it would have taken to stop without this technology.

He went on to state that because these systems were so effective at preventing and mitigating collisions and injuries, many truck manufacturers and fleet owners were already making these safety features standard on all of their trucks:

I recently visited the manufacturer of a collision warning system and learned that several heavy truck fleets have made this equipment standard on newly purchased trucks, and the company estimates that they will sell more than 10,000 units this calendar year. In addition, they stated that a collision warning system is also standard equipment on newly purchased U.S. Army medium and heavy vehicles. The Army has at least 2,300 currently in its trucks, and has purchased 2,000 retrofit kits.

I also visited U.S. Xpress Enterprises, Inc. in Chattanooga, Tennessee. In 1996, this trucking company began installing a collision warning system in its vehicles. Eighty-five percent of their fleet, that’s over 4,000 trucks, currently has this important safety device, and the company is placing it in all newly purchased vehicles. I was pleased to learn that since installing this technology, the company’s rear-end accident rate has decreased by 75 percent, and costs due to accidents have decreased by two-thirds. The rest of the industry and DOT should take notice. The widespread use of this safety device would prevent injuries, save countless lives and, as demonstrated by U.S. Xpress’ experience, some millions of dollars each year.

Emphasis added. It bears repeating—these statements about the effectiveness, commercial availability and technological viability of these safety systems were made almost 25 years ago.

In the years following, numerous studies showed that human driving errors were inevitable and predictable, that such errors would lead to collisions, and that commercial vehicles would be less dangerous if they were equipped with forward collision warning systems. See, e.g., “Primary Pedestrian Crash Scenarios: Factors Relevant to the Design of Pedestrian Detection Systems,” https://www.iihs.org/api/datastoredocument/bibliography/1888, Jermakian, 2011; “Effectiveness of a Current Commercial Vehicle Forward Collision Avoidance and Mitigation Systems,” Woodroffe, 2013. https://saemobilus.sae.org/content/2013-01-2394/; and “Shiny-side Up: Advanced Crash Avoidance Technologies That Can Reduce Heavy Truck Crashes,” Univ. of Michigan Transp. Research Inst. USA, Blower, 2015 https://static.tti.tamu.edu/conferences/traffic-safety15/presentations/breakout-02/blower.pdf. Reasonable manufacturers should have been aware of these and the dozens of other similar studies demonstrating the effectiveness and viability of these safety systems.

In 2015, the NTSB issued a Special Investigation Report, The Use of Forward Collision Avoidance Systems to Prevent and Mitigate Rear-End Crashes, https://www.ntsb.gov/safety/safety-studies/Documents/SIR1501.pdf. That report examined and summarized the results of a three-year investigation by the NTSB into collisions involving passenger and commercial vehicles and examined then technically feasible and commercially viable collision avoidance technologies that would have aided in their prevention. It also recognized that the ordinary and foreseeable use of passenger vehicles and heavy trucks includes driver mistakes and negligence, and concluded that collision warning systems, particularly when paired with active braking, could substantially reduce the frequency and severity of rear-end crashes.

Most importantly, the report concluded by recommending that all manufacturers install forward collision avoidance systems as standard features on all newly manufactured passenger and commercial motor vehicles.

To passenger vehicle, truck-tractor, motorcoach, and single-unit truck manufacturers:

Install forward collision avoidance systems that include, at a minimum, a forward collision warning component, as standard equipment on all new vehicles. (H-15-8)

Id. (emphasis in original); see also https://www.ntsb.gov/safety/safety-studies/Pages/DCA14SS001.aspx.

To make sure that manufacturers were aware of this report, the Chairman of the NTSB then personally wrote to the CEOs of all major commercial vehicle manufactures, referenced the report and specifically asked them to install forward collision avoidance systems that include, at a minimum, a forward collision warning component, as standard equipment on all new trucks and buses. See, e.g., https://www.ntsb.gov/safety/safety-recs/recletters/H-15-008-009.pdf.

That same year, the NTSB also published a Safety Alert addressing the issue of deadly rear-end crashes in 2015:

Forward Collision Avoidance Systems Can Save Lives

The Problem

• Between 2012 and 2014, almost half of all two-vehicle crashes were rearend crashes. These crashes killed more than 1,700 people each year.
• A 2007 National Highway Traffic Safety Administration (NHTSA) study showed that 87 percent of rear-end crashes involved a driver failing to attend to the traffic ahead.

The Solution

• Considerable research on forward collision avoidance systems (CAS) in both passenger and commercial vehicles has shown that these systems can prevent or mitigate rearend crashes.
• Forward CAS typically consist of (1) collision warning that alerts a driver of the impending crash, and (2) autonomous emergency braking (also known as “crash imminent braking”) that automatically applies brakes.
• NHTSA is recommending the use of forward CAS.
• Broad deployment of forward CAS in all vehicles is necessary to reduce the severity of rear-end crashes.

https://www.ntsb.gov/Advocacy/safety-alerts/Documents/SA-046.pdf.

Two years later, the NTSB published its Most Wanted List of Transportation Safety Improvements. https://www.ntsb.gov/Advocacy/mwl/Documents/2017-18/MWL-Brochure2017-18.pdf. That 2017 report stated that driver errors were foreseeable, should be anticipated by manufacturers, and should be mitigated with the immediate implementation of collision avoidance technologies on their new vehicles:

Humans make mistakes, even in transportation. Transportation operators must always walk a demanding line of alertness and vigilance, but collision avoidance technologies can provide a lifesaving safety net. Technologies such as collision warning and autonomous emergency braking in highway vehicles … will result in fewer accidents, fewer injuries, and fewer lives lost.

These technologies are available today. They should be implemented today.

Manufacturers blame purchasers for not optioning vehicles with CAT systems

As was mentioned above, manufacturers that offer these systems often make the technology optional, and when a products case is brought against them, defend by blaming the purchaser for declining the option. This defense has two problems.

First, the NTSB has strongly condemned the practice of making safety systems optional and/or using them for “product differentiation,” i.e. using a feature to differentiate high-end vehicles from mid-range and lower-end vehicles:

The NTSB believes that not only should more automakers offer collision avoidance technologies as standard features in their vehicles, but that consumers should not have to purchase a luxury option package to get the safety benefits of these technologies. And he stated, Many manufacturers only offer this safety system within a luxury option package. But safety should be a basic feature rather than an option that we have to purchase and that only the wealthier buyer can afford.

Emphasis added. https://www.youtube.com/watch?v=CpRXnXcd-Qh8&t=17s.

Second, in Washington, manufacturers may not delegate their duty to design products that are reasonably safe. Anderson v. Dreis & Krump Manufacturing Corp., 48 Wn. App. 432, 440 (1987) (“a manufacturer cannot delegate to the buyer its responsibility to equip an otherwise dangerous machine with safety guards”); Wagner v. Beech Aircraft Corp., 37 Wn. App. 203, 209 (1984).

These cases are vigorously defended and must be properly screened

This article is not intended to be a thorough review of all the issues one can anticipate encountering in a product liability case alleging that a commercial vehicle is defective because a manufacturer failed to equip it with an advanced driver safety system. Rather, the intent is to bring about a wider awareness of the existence of these types of cases so that more practitioners can identify and investigate them as potential claims. These cases are vigorously and aggressively defended and should not be undertaken lightly but, under the right circumstances and with the right presentation, can be quite compelling to a jury.

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Lincoln Sieler is an EAGLE member whose practice focuses on product liability, commercial vehicle collisions, and insurance coverage and bad faith at Friedman Rubin PLLC in Seattle. www.friedmanrubin.com. He is also a member of the Trucking Injury Law Group. www.truckinginjurylawgroup.com.

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By Rachel Luke, Friedman | Rubin, PLLP

This article was reposted from the May 2023 issue of Trial News, the monthly newspaper of the Washington State Association for Justice.
https://www.trialnewsonline.org/trialnews/may_2023

The Complication: A Camille Delaney Mystery
By Amanda DuBois
Girl Friday Books, 2022
306 pages, hardcover
$26.95

ISBN: 978-1-954854-34-5
www.girlfridaybooks.com

There are two types of lawyers: those who enjoy fictional depictions of the law and those who don’t. As a Law and Order: SVU fan, I consider myself in the first category. If you also enjoy legal fiction as a genre, you will love fellow WSAJ EAGLE member Amanda Dubois’s The Complication: A Camille Delaney Mystery.

When her dear friend Dallas dies of a complication from a routine but unexpected surgery, Seattle attorney Camille Delaney leaves her cushy family law practice to pursue the medical malpractice case. Often wondering whether the father-like relationship with Dallas is clouding her judgment, Camille proceeds down a dangerous path to determine the cause of his death in the pursuit of justice. Putting everything on the line—her finances, her reputation, her friendships, and her family’s safety, Camille’s tenacity is both questionable at times and inspirational. Camille’s investigation leads her to something much more sinister than the typical medical negligence case.

The primary cast of characters is strong, intelligent women who make choices to actively break down barriers. The protagonist, Camille, is a nurse and pilot turned attorney. Trish Seaholm is a private investigator who had left the Seattle Police Department after being harassed for being gay. Trish agrees to help Camille investigate, which unfortunately puts herself in danger. Gigi Roberts is a renowned research pathologist at the University of Washington whose research brought the school millions of dollars. Yet Gigi is reluctant to help Camille with her case due to a policy at the university prohibiting the doctors from consulting in litigation matters.

In The Complication, negligence unfolds in a different way from our typical cases—corruption and evil run deep with many twists, but I do not want to get into any spoilers. The Pacific Northwest culture is the perfect backdrop for this plot. The story takes place in Seattle and the San Juan Islands. Camille lives on a houseboat in Laurelhurst, the University of Washington is commonly mentioned, and there is even a trip to Arizona for Mariners’ spring training. From the float planes on Lake Washington to the Windermere Cup, Dubois has a way of making our region and customs come alive.

For those of us in the trenches of working on wrongful death or medical malpractice cases, it may be easy to get bogged down by whether depictions of the practice of law are accurate. For example, Camille is able to retain an expert in the case one day and the next day this expert is sitting for her deposition. There is a scene from a mediation which is fun to read, but I cannot say I have ever experienced a mediation like that. Negotiations with the insurance adjuster are similar to real-life conversations, but on steroids! On the other hand, Camille expresses many of the same frustrations that WSAJ members have with trying to get treating doctors to talk to us or to testify for their patients. The doctors’ distrust of lawyers and the legal system is palpable, even as Camille is friendly with many medical professionals due to her husband’s position as a doctor for the University of Washington. Although Dubois’s artistic license could be a negative for some, it makes for an exciting entertaining storyline in this legal medical mystery.

This is a fun and easy to read thriller that is perfect for a vacation or a book club. Of note, all of the profits from sales of this book are donated to the Full Circle Scholarship, which provides tuition assistance to students at Seattle University School of Law, and will support the work of social justice organizations. In March, Amanda Dubois published her second book, Deliver Them From Evil: A Camille Delaney Mystery.

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Rachel Luke, EAGLE member, is an attorney at Friedman Rubin PLLP in Seattle, Washington. Rachel represents clients in personal injury, product liability, and insurance bad faith cases. She is currently the Diversity Committee co-chair for WSAJ.

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What is big, grey, and just swam past our Bremerton office? A Grey Whale, that’s what!

Having an office NOT located in a downtown high-rise building can have its advantages.

A new Washington State House Bill may soon be passed that would eliminate the statute of limitation for child sex abuse lawsuits. House Bill 1618 is currently working its way through the Legislature. If passed, it would break down current statute of limitation barriers. This bill will have implications for child sex abuse victims who are seeking damages from past abuse. Currently in Washington State, the statute of limitations requires victims to file a lawsuit within three years of when the abuse occurred, three years after they turn 18, or three years from when they discover the full extent of the damage caused by the abuse.

Friedman Rubin Of Counsel attorneys Julie Kays and Cheryl Snow have spent a great deal of their careers advocating for victims of child sex abuse. Kays said, “If enacted into law, this legislation is a huge step forward to survivors of childhood sexual abuse. Over the decades, we have learned that it is common for survivors of childhood sexual abuse to delay reporting the abuse. This makes sense, because children can feel confusion, shame, and fail to appreciate that the abuse was wrong. Oftentimes the abuse is perpetrated by a loved one, or close family friend, and this makes it even more difficult for survivors to come forward. This Legislation takes what we have learned about childhood sexual abuse over the decades and preserves a victim’s right to pursue civil justice no matter how long it takes for a survivor to find their voice.” Snow adds, “There is no compelling reason to impose an arbitrary deadline on a childhood sexual abuse survivor’s quest for civil justice. We recognize that trauma from childhood sexual abuse may last a lifetime. We encourage survivors to consult with us about their case to assess whether the current or proposed law allows their case to go forward.”

In April 2023, the House passed HB 1618, and the legislation is currently being considered by the Senate. If the Senate passes the legislation it then goes to the Governor to sign the bill into law.

By Ron Park, Friedman | Rubin, PLLP

This article was reposted from the February 2023 issue of Trial News, the monthly newspaper of the Washington State Association for Justice.
https://www.trialnewsonline.org/trialnews/library/item/february_2023

Several years ago, I read two opinions concerning the constitutionality of an injunction that enjoined individuals from participating in or encouraging parades without a permit. The opinions stuck with me for two reasons. One reason was the facts in the two opinions. In one opinion, the facts were as follows: (Note: the opinions were written in the 1960s and so contain language that would be considered inappropriate today.)

The next afternoon, Good Friday, a large crowd gathered in the vicinity of Sixteenth Street and Sixth Avenue North in Birmingham. A group of about 50 or 60 proceeded to parade along the sidewalk while a crowd of 1,000 to 1,500 onlookers stood by, “clapping, and hollering, and (w) hooping.” Some of the crowd followed the marchers and spilled out into the street. At least three of the petitioners participated in this march.

On Easter Sunday, April 14, a crowd of between 1,500 and 2,000 people congregated in the midafternoon in the vicinity of Seventh Avenue and Eleventh Street North in Birmingham. One of the petitioners was seen organizing members of the crowd in formation. A group of about 50, headed by three other petitioners, started down the sidewalk two abreast. At least one other petitioner was among the marchers. Some 300 or 400 people from among the onlookers followed in a crowd that occupied the entire width of the street and overflowed onto the sidewalks. Violence occurred. Members of the crowd threw rocks that injured a newspaperman and damaged a police motorcycle.

In the other opinion, the facts were the same in some respects, but also very different:

On April 12, Good Friday, a planned march took place, beginning at a church in the Negro section of the city and continuing to city hall. The police, who were notified in advance by one of the petitioners of the time and route of the march, blocked the streets to traffic in the area of the church and excluded white persons from the Negro area. Approximately 50 persons marched, led by three petitioners, Martin Luther King, Ralph Abernathy, and Shuttlesworth. A large crowd of Negro onlookers which had gathered outside the church remained separate from the procession. A few blocks from the church the police stopped the procession and arrested, and jailed, most of the marchers, including the three leaders.

On Easter Sunday another planned demonstration was conducted. The police again were given advance notice, and again blocked the streets to traffic and white persons in the vicinity of the church. Several hundred persons were assembled at the church. Approximately 50 persons who emerged from the church began walking peaceably. Several blocks from the church the procession was stopped, as on Good Friday, and about 20 persons, including five petitioners, were arrested. The participants in both parades were in every way orderly; the only episode of violence, according [to] a police inspector, was rock throwing by three onlookers on Easter Sunday, after petitioners were arrested; the three rock throwers were immediately taken into custody by the police.

If you haven’t guessed already, the reason these opinions stuck with me is that the facts are describing the same case: Walker v. City of Birmingham, 388 U.S. 307 (1967). One set of facts was written in the majority opinion, and the other was written in a dissenting opinion.¹ It’s one thing for judicial opinions to disagree on the interpretation of the law. But aren’t the facts supposed to be the facts? Sure, the lawyers may have put their spin on the facts in the briefs, but isn’t there supposed to be the “neutral” statement of facts upon which the law is to be applied? Yet here we have two “neutral” statements of what had happened.

Each fact statement, considered alone, appears to be a reasonably neutral statement. Of course, the opinions are from the 1960s, and there’s certain language there that would not be acceptable in any legal writing today, but if you had seen only one of these fact statements rather than both, would either one have struck you as obviously slanted or biased?

The statements agree on many points. They agree that marches took place in Birmingham, Alabama on Good Friday and Easter. There was a large crowd of people gathered on both dates, although only about 50 were marchers and the others were onlookers. Several participants, including the petitioners, were arrested. At the end of the second march, some people threw rocks.

More remarkably, the statements don’t disagree with one another on the points where they diverge. In fact, neither opinion says that any of the facts stated in the other is wrong, false, or exaggerated. There does not appear to be any dispute that the onlookers numbered from 1,000 to 2,000, that they were making a lot of noise, and they filled the street and sidewalks. There does not appear to be any dispute that the rocks thrown injured a person and damaged a vehicle.

There also does not appear to be any dispute that the marches were planned, that the police had been given advance notice of the marches by one of the marchers, and that the police were therefore able to block the streets to traffic along the marchers’ route. There is also no dispute that the march began at a church in a Black neighborhood, that the marchers themselves walked peacefully at all times, that the rocks had been thrown by onlookers, and that was the only episode of violence across the two days.

Neither statement appears to be false. Yet, read together, they clearly convey very different impressions of the event and paint a very different picture in the mind of the reader of what happened. You could probably accurately guess which way each opinion came out on the legal question before the Court without reading any other part of the opinion.

Which gets to the title of this article: the facts are not neutral. This should be obvious once you give it some thought. Our evidence rules allow only the admission of “relevant” facts at trial. What’s a relevant fact? One that has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”² By this definition, relevant facts can’t be neutral. They have a tendency to either help or hurt your case! It’s the same in summary judgment proceedings. A “material” fact is a fact “upon which the outcome of the litigation depends, in whole or in part.”³ Again, by definition, material facts can’t be neutral if the outcome of the case depends on what those facts are.

But even when facts are not directly determinative of a legal issue, they can still drive an outcome one way or another. Does the constitutionality of an injunction enjoining parades on public streets without a permit depend on how orderly and peaceful any particular parade is? Despite the detail both opinions give about what happened during the marches, the conclusion of both opinions don’t turn on those details. Ultimately, the majority’s holding turned on what it considered to be the failure of the petitioners to make “any previous effort on their part to have the injunction dissolved or modified, or any attempt to secure a parade permit in accordance with its terms.”⁴

Then why spend so much time describing what the marches were like? Perhaps because even judges, like any other human being, can be drawn to certain conclusions based on what they perceive to be the truth of what happened on a particular day. Perhaps because judicial opinions are not just a court’s interpretation of a legal issue and application of the law to the facts, they are also explanations to the public for why the court ruled a certain way in a particular case. Jurors may be able to just fill out a verdict form, but judges have to explain and justify their decisions.

Which is to say that careful drafting of a fact statement in a motion or a brief can go a long way to persuading a judge to rule in your favor. That isn’t to say that the law doesn’t matter. You will need case law and other legal authority to support your points, but lawyers often get overly focused on finding the right case or cases to win the day for them. A powerful fact statement can often communicate what the proper ruling should be. As much as law school professors delighted in telling you all the ways in which the law does not lead to what we’d think are fair or just outcomes, most of us (including judges), in our heart of hearts desire the legal system to produce not just legally correct results, but fair and just ones.

A powerful fact statement doesn’t require embellishment or editorializing. Giving thought to the story you want to tell and just stating the facts that tell that story is often more than enough. The excerpts I quoted above do just that. Given the historical context of the Walker case, it may be difficult to disentangle that context from the excerpts themselves, but each one tells a story, and in telling that story each one silently calls you to draw certain conclusions about what happened, the people involved, and who was in the right or wrong. Many times, that silent call is more persuasive than anything we say out loud.

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Ron Park, EAGLE member, is an associate at Friedman | Rubin PLLP in Seattle.

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¹ These aren’t the only facts in the case, but I chose to excerpt these parts because of the stark contrast in describing the same events.
² ER 401.
³ Morris v. McNicol, 83 Wn.2d 491, 494, 519 P.2d 7 (1974).
⁴ Walker, 388 U.S. at 315.

Friedman Rubin PLLP and especially Cheryl Snow are proud to yet again be sponsoring SVLC Plays: Fright Night Trivia, this year’s annual fundraiser for the law center. Please join us for a fun evening on Thursday, October 27th!

Alongside 80’s pop culture and thriller-themed trivia, the host will inform you about SVLC’s critical work in the community. Spaces of joy are necessary to make SVLC’s work sustainable – this event will be focused on playing and adventuring together. And we’re so excited to see you there with us.

In-person in Belltown, Seattle, or online from anywhere in the world.

Buy your tickets at Events | Sexual Violence Law Center (svlawcenter.org). Donation-only options also available.

Sexual Violence Law Center is the only legal aid program of its kind in Washington, providing holistic legal assistance and representation exclusively to victims of sexual violence, assault, abuse, harassment and stalking.

July 6, 2022, Kent, WA.

A King County Superior Court jury returned a verdict of $15,392,523 in damages to the Estate and beneficiaries of Marc Messina, who was killed in a small plane crash on April 21, 2016.

The defendant pilot, Angus Walker, attempted to take off from the Woodland State Airport in a Mooney M20k model plane. Mr. Walker was unable to liftoff due to overloading and insufficient power. The airplane crashed into a fence and earthen berm at the end of the runway, killing passenger Marc Messina.

Mr. Messina left behind a wife and three children who were represented by Friedman Rubin.

Due to Covid-19 King County Superior Court Judge Brian McDonald ordered that the trial be conducted via Zoom. The trial began on June 9, 2022, and closing arguments were given on June 30, 2022. The jury reached its verdict six days later.

During the trial, Rick Friedman used his nationally recognized Rules of the Road method to identify important rules and principles that the defendant should have followed. The Rules of the Road in this case included:

1. A pilot must ensure the plane is maintained and inspected properly.
2. A pilot should choose a runway long enough for a safe takeoff.
3. A pilot must ensure that the aircraft and its passengers and contents do not exceed the weight limit set by the manufacturer of the aircraft.
4. A pilot must complete the pre-flight inspection of the aircraft and ensure the engine can make full power.
5. A pilot should choose a go/no-go point and abort takeoff if the plane is not going fast enough to take off.

The jury found defendant Angus Walker negligent and solely responsible for the crash, returning its $15.4M verdict in favor of the Estate and beneficiaries of Marc Messina.

Richard Friedman, Bill Cummings, Rachel Luke, Ron Park, and Mike Angiulo of Friedman Rubin PLLP represented Ms. Messina and her three children.

 

By Ron Park, Friedman | Rubin, PLLP

This article was reposted from the June 2022 issue of Trial News, the monthly newspaper of the Washington State Association for Justice.
https://www.trialnewsonline.org/trialnews/june_2022

Last year, the U.S. Supreme Court decided Ford Motor Co. v. Montana Eighth Judicial District Court,¹ a case in which the Court held that an out-of-state car manufacturer (Ford) can be sued in a state where the manufacturer extensively markets, sells, and services its cars, when one of its cars malfunctions and injures a person within that state. This year, in Downing v. Losvar,² Division III of the Washington Court of Appeals issued the first opinion on personal jurisdiction that interprets and applies Ford in a Washington case.

The jurisdictional facts of Downing are materially identical to the facts in Ford. In Ford, there were two plaintiffs, one a resident in Montana and the other a resident in Minnesota, each of whom was injured in a car accident that happened in their respective states. The vehicles in both incidents were Ford vehicles, and Ford did extensive and substantial business in both Montana and Minnesota by advertising, selling, and servicing its vehicles there. However, neither plaintiff had purchased the vehicles directly from Ford within those states. Ford had sold and delivered the specific vehicles at issue to other customers in other states, and it was only through second-hand transactions that those vehicles ended up in Montana and Minnesota.

In Downing, the plaintiff was a resident of Washington who was injured in a plane crash in Washington. The plane was manufactured by Cessna Aircraft Co. (now Textron Aviation Inc.), and Cessna (now Textron) did extensive and substantial business in Washington by advertising, selling, and servicing its planes there. However, the plane that had crashed had not been purchased directly from Cessna in Washington. Rather, Cessna had sold the plane to a different customer in a different state, and it was only through second-hand transactions that the plane ended up in Washington.

Although Ford concerned cars and Downing concerned planes, the jurisdictional question was the same:

Can a court exercise personal jurisdiction over an out-of-state manufacturer who purposefully and systematically serves the market for its products in a forum state when one of its products malfunctions and injures a forum resident, even though the specific product that malfunctioned was not sold, delivered, or otherwise serviced by the out-of-state manufacturer in the forum state?

In Ford, the U.S. Supreme Court answered, yes. Unsurprisingly, the Washington Court of Appeals answered the same, stating that “Ford Motor Co. v. Montana Eighth Judicial District Court compels our ruling.”³

As simple as this may seem, Ford’s effect on Washington’s personal jurisdiction law is substantial. This is reflected in the Court of Appeals’ 50-page opinion, which reviews the law on personal jurisdiction from the U.S. Supreme Court’s International Shoe decision in 1945 all the way to the present (International Shoe v. State of Washington, 326 U.S. 310 (1945)). The Court of Appeals spends much of its opinion discussing how that law developed in the U.S. Supreme Court and Washington State, and what the Ford decision means for the law of personal jurisdiction in Washington going forward.

“But for” causation no longer necessary for personal jurisdiction

The consequences of the Court of Appeals’ opinion are too many to be covered in a single article. However, the most significant is the court’s rejection of the “but for” test for determining whether a plaintiff’s claims “arise out of or relate to” an out-of-state defendant’s contacts with the forum state.

For those who need a refresher on personal jurisdiction, federal law draws a distinction between “general jurisdiction” on the one hand and “specific jurisdiction” on the other.⁴ A state can exercise “general jurisdiction” over a defendant only when the defendant is “essentially at home” in the state.⁵ A corporate defendant is “at home” in its state of incorporation and in the state where it maintains its “principal place of business.”⁶ In any other state, a court can exercise only “specific jurisdiction” over the out-of-state defendant. For “specific jurisdiction” to apply, the plaintiffs’ claims must “arise out of or relate to” the out-of-state defendant’s contacts with the forum state.⁷

What it meant for a claim to “arise out of or relate to” a defendant’s forum contacts had been something of an open question before Ford. In 1989, in Shute v. Carnival Cruise Lines, the Washington Supreme Court attempted to bring some clarity to the standard by adopting a “but for” causal test to determine whether a plaintiff’s claims met the “arise out of or relate to” requirement.⁸ Under a “but for” test, plaintiffs in Washington had to show that their claims against the out-of-state defendant would not have arisen but for that de-fendant’s contacts with Washington State.

Although the Washington Supreme Court appeared to depart from the “but for” test in later opinions,⁹ it never expressly overruled its holding in Shute. And as long as the U.S. Supreme Court remained silent on whether the “arise out of or relate to” requirement was equivalent to a “but for” causal test, one could plausibly treat the two as the same.

Although simple in theory, the test had the effect of turning disputes over personal jurisdiction into a game where out-of-state defendants would slice and dice their contacts with the forum state in ways that would divorce those contacts from being a “but for” cause of a plaintiff’s claims. For example, a defendant might acknowledge it sells thousands of products in Washington but argue Washington courts have no jurisdiction because the one product that malfunctioned was sold out of state and brought into Washington by an unknown customer. Or a defendant might acknowledge it shipped the defective product into Washington but argue there is no jurisdiction because it only did so at the request of an out-of-state customer, not the Washington resident who was later injured by the defective product. The defendant’s goal in every case was to explain how its activities in Washington, no matter how numerous or substantial, did not cause the plaintiff’s harm. The end result was what Ford argued to the U.S. Supreme Court and what Cessna argued to the Washington Court of Appeals: that state courts are powerless to call an out-of-state manufacturer into court, even when the manufacturer extensively advertises, sells, and services its products within the state, if a strict causal link cannot be shown between those activities and the plaintiff’s injury.

In Ford, the U.S. Supreme Court flatly rejected this argument and in doing so rejected any “but for” causal requirement for personal jurisdiction.¹⁰ What the U.S. Supreme Court holds on matters of federal constitutional law is binding on all courts in our country. The Court of Appeals in Downing simply made the application of Ford to Washington law official.

Satisfying the “arise out of or relate to” standard

So now, how does a plaintiff show that their claims “arise out of or relate to” a defendant’s contacts with Washington? Showing a direct causal relationship between the plaintiff’s claims and the defendant’s contacts still satisfies the “arise out of” prong of that standard.¹¹ Downing has not changed that, even as it holds that a direct causal relationship is no longer necessary to establish personal jurisdiction. But plaintiffs who cannot show that direct causal relationship can now establish jurisdiction by satisfying the “relate to” prong of the standard. This can be accomplished by showing “an affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that takes place in the forum State and is therefore subject to the State’s regulation.“¹²

What does that look like? The Supreme Court’s Ford opinion gives some guidance:

In conducting so much business in Montana and Minnesota, Ford “enjoys the benefits and protection of [their] laws”—the enforcement of contracts, the defense of property, the resulting formation of effective markets. … All that assistance to Ford’s in-state business creates reciprocal obligations— most relevant here, that the car models Ford so extensively markets in Montana and Minnesota be safe for their citizens to use there.¹³

In addition, “[a]n automaker regularly marketing a vehicle in a State . . . has ‘clear notice’ that it will be subject to jurisdiction in the State’s courts when the product malfunctions there (regardless of where it was first sold).” This is why the Supreme Court has used “this exact fact pattern (a resident-plaintiff sues a global car company, extensively serving the state market in a vehicle, for an in-state accident) as an illustration—even a paradigm example—of how specific jurisdiction works.”¹⁵

Of course, not every lawsuit is against a global car company. But the Supreme Court’s reasoning is equally applicable in cases against any out-of-state manufacturer that engages in regular and substantial business in Washington. Plaintiffs seeking to establish personal jurisdiction over an out-of-state manufacturer in a products liability case should take care to show the manufacturer’s regular and substantial business to the court. The more extensive and systematic the conduct, the less ground the manufacturer has to claim that it cannot be subject to the jurisdiction of Washington courts.

Looming circuit split

Those who think Ford is going to put the seemingly never-ending battle over personal jurisdiction to rest are likely to be disappointed. As surprising as it may seem, a split is already forming between jurisdictions on the proper interpretation of Ford. Textron has already petitioned the Washington Supreme Court to review the Downing opinion based on non-Washington cases more favorable to its position.

Before our state Court of Appeals decided Downing, the Ninth Circuit considered the meaning of Ford in LNS Enterprises LLC v. Continental Motors, Inc.¹⁶ In LNS, the plaintiffs were involved in a plane crash in Arizona involving a Cessna aircraft.¹⁷ Like in Downing, Textron was included as a defendant in LNS as the successor company to Cessna. And like in Downing, Textron moved to dismiss for lack of personal jurisdiction arguing that it had not designed, manufactured, sold, or serviced the crashed plane in Arizona.¹⁸

Unlike the Court of Appeals in Downing, the Ninth Circuit held that Arizona could not exercise personal jurisdiction over Textron.¹⁹ The Ninth Circuit offered a number of reasons for its holding, but perhaps the most significant is its conclusion that Ford applies “only to those circumstances in which the same model of the product at issue was ‘advertised, sold, and serviced’ by the defendant.”²⁰ In other words, the Ninth Circuit interpreted the Supreme Court’s Ford opinion as being about the Ford Crown Victoria and the Ford Explorer, not Ford vehicles generally.

One can already see how this opens the door to the next generation of arguments by out-of-state defendants against personal jurisdiction. Rather than argue about how each of their contacts did not cause the plaintiff’s harm, defendants will now pivot to arguing how each of their contacts relates to a completely different product from the one at issue in the case.

Fortunately, Downing squarely closed off this line of argument in our state courts and specifically rejected the Ninth Circuit’s analysis in LNS.²² The Court of Appeals reasoned that a “kind of product” test would lead to defendants making ever-finer distinctions between their products (not just by model, but by model year or even by color) with no obvious line where the distinctions would end.²³

It remains to be seen what comes of the competing interpretations of Ford by our state Court of Appeals and the Ninth Circuit. Perhaps the Washington Supreme Court will weigh in. But for now, at least, plaintiffs can enjoy a broader application of Ford in Washington state courts than in Washington federal courts. For plaintiffs seeking to hold out-of-state defendants accountable in Washington, that is something to celebrate.

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Ron Park, EAGLE member, is an associate at Friedman | Rubin PLLP in Seattle. He briefed and argued the appeal on behalf of the Downings.

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¹ 141 S. Ct. 1017 (2021).
² No. 36298-1-III (Apr. 14, 2022).
³ Downing v. Losvar, No. 36298-1-III, slip op. at 3.
⁴ See Daimler AG v. Bauman, 571 U.S. 117, 127 (2014).
⁵ Ford, 141 S. Ct. at 1024.
⁶ Id.
⁷ See id. at 1025.
⁸ 113 Wn.2d 763, 772 (1989).
⁹ See Downing, No. 36298-1-III, slip op. at 45.
¹⁰ See Ford, 141 S. Ct. at 1026.
¹¹ See Downing, No. 36298-1-III, slip op. at 42.
¹² Ford, 141 S. Ct. at 1025 (quoting Bristol Myers Squibb Co. v. Superior Court of Cal., 137 S. Ct. 1773, 1780 (2017)) (emphasis added); Downing, No. 36298-1-III, slip op. at 40.
¹³ Ford, 141 S. Ct. at 1029–30 (citation omitted).
¹⁴ Id. at 1030 (citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980)).
¹⁵ Id. at 1028 (citation omitted).
¹⁶ 22 F.4th 852 (9th Cir. 2022).
¹⁷ See id. at 856–57.
¹⁸ See LNS, 22 F.4th at 857, 864.
¹⁹ LNS, 22 F.4th at 856.
²⁰ Id.
²¹ See Downing, No. 36298-1-III, slip op. at 26–27.
²² Id. at 39.
²³ See id. at 27.

Friedman Rubin is proud to yet again be sponsoring the Brain Injury Alliance of Washington’s annual Art Show. Treat yourself to a visit!

Why are we doing this?

Friedman | Rubin supports BIAWA’s Brain Injury Art Show because we know art can be very helpful to people with brain injuries. We like both how BIAWA is creative with how it goes about helping its constituents but also the resulting art!

Friedman | Rubin supports BIAWA because we have seen first hand how devastating a brain injury can be, and understand the need for an organization that advocates on behalf of the people who have to live with this injury.

Sometimes, BIAWA constituents have sustained their injuries due to negligence of others. These were people or companies that broke rules. As a law firm we hold the rule-breakers accountable for what they have done, helping make the constituents whole again to the extent possible as well as encouraging everyone to be more careful.

What makes BIAWA unique is that they are there with resources and support at a time when people are vulnerable and often don’t know what to do. It is a source of support and comprehensive information for people learning to cope and adjust to life changing injuries. If BIAWA did not exist, there would be no place to turn for help and support. As is usually the case, those with few personal resources would be particularly hard hit.

We encourage you to attend the Brain Injury Art Show at the Renton History Museum. If you have ever come across a person with TBI you know they need all the help and support they can get. The art is worth supporting for its own sake, as well supporting people who have found creative outlets after their injury. The pieces are simply Inspired! Some of the pieces are truly magnificent. Each one will speak to someone.

~Friedman | Rubin Trial Lawyers

By Michael Angiulo, Friedman | Rubin, PLLP

This article was originally published on Dec. 6, 2021 Mich. St. L. Rev.: MSLR Forum. www.michiganstatelawreview.org/vol-2021-2022/2021/12/3/law-and-autonomous-vehicles

INTRODUCTION

The law is not ready for self-driving cars. While most of the anticipated legislation is concerned with questions of safety or privacy, the introduction and proliferation of autonomous cars will present novel legal questions in negligence and product liability cases, especially challenging the framework for agency. Although these are important issues for civil cases, the implications for criminal justice are the most urgent. Constitutional cases relating to automotive stops form the procedures and frameworks which protect our Fourth and Fifth Amendment rights.

Legal analogies can only be stretched so far before they break. The Court recognized this breaking point in Carpenter v. United States when it refused to extend the third-party exposure doctrine to cell site location information (CSLI) in the context of privacy. While the result was thoughtfully applied to a single scenario, the unwillingness to “embarrass the future” prevented the Court from creating useful, forward-looking rules of general applicability. In the absence of comprehensive legislation, we should expect to see a ruling attempting to analogize a runaway horse drawn carriage to a scenario involving a driverless car. And the ruling, at best, will be as disruptive as Carpenter, but will affect a broader range of fundamental rights.

Cars today already have some “autonomous” features like cruise control, and are controlled through many microprocessors and software. None of this progress has caused any significant legal issue. The move to fully autonomous vehicles, though, will cause discontinuities in both how cars work and how they are used. These changes will stretch existing legal analogies and doctrines to their breaking points which will yield to unpredictable application of criminal procedures, disproportionate impacts on both affluent and disabled operators, and will force unwanted tradeoffs between fundamental rights and convenience.

WHY AUTONOMOUS VEHICLES ARE DIFFERENT

Cars of the future will not have steering wheels. They will be built on software platforms that capture information from a broad array of optical, radar, and ultrasonic sensors. Someone, typically a single operator, will command the vehicle to proceed to a destination. The software will use artificial intelligence, including unsupervised learning algorithms, to plan routes, navigate traffic, and respond to unforeseeable conditions. Usually, the car will operate perfectly—following speed limits and traffic rules with inhuman precision. At other times, it will operate unpredictably, at least as far as the occupants are concerned, choosing routes optimized for safety or efficiency, without explanation. Every moment of every trip, taken by every similarly designed car, will be captured in detail, and will be combined into training data to improve future performance.

These changes in how cars work will lead to changes in how cars are used. A vehicle that can operate autonomously does not need to wait in the parking lot while you sit at work all day. It can run errands or be shared with other drivers. Fleets of vehicles can be used in aggregate to reduce traffic and parking congestion while reducing the cost of ownership for individual drivers. Autonomous vehicles can drive through the night, allowing passengers to sleep, even during charging stops. While law enforcement has faced pushback in the use of drones for persistent surveillance, it is unlikely that the presence of unoccupied police vehicles, especially when unmarked, will even be noticed.

CHALLENGES WITH APPLYING PRECEDENT

These changes in how cars work and how they will be used undermine the principles and logic that justified many controlling cases, especially those on which police rely when making pretextual traffic stops which disproportionately affect Black male drivers.¹

Furthermore, these issues will have a disproportionate impact on different classes of people, whether they are affluent people able to be early adopters of expensive technology or disabled people who will be the first to rely on these as mobility-enhancing necessity.

A. Predictable Behavior

Police can generally find reasonable articulable suspicion to stop a vehicle by simply following it in traffic for long enough. In Whren v. United States, the Court explained that being followed by the police for fifteen minutes may feel like a seizure, but it is not—fifteen minutes is usually enough to establish the necessary suspicion for even a pretextual stop.² However, what if an autonomous vehicle is incapable of making a mistake? An expensive vehicle capable of following traffic rules with precision can effectively create a shield from the most common police tactic for justifying a stop. This will inevitably lead to an increase in socioeconomic and racial disparities in stops.

In response, police might find ways to exploit the predictable behavior of vehicles to expose drivers to stops that would have otherwise been unlawful. For example, a vehicle could respond to police lights by pulling over and remaining there until the lights are turned off. In Illinois v. Caballes, the Court held that a traffic stop could not be unreasonably prolonged to wait for a drug sniffing dog.³ Imagine the officer verbally told the occupants they were free to go, but in leaving his police vehicle in position with the lights on, the autonomous vehicle would simply stay put indefinitely. Has the officer extended the stop? Would it matter if the Court was unwilling to consider the subjective intent of the police? A disabled occupant could be subject to a search that would have been unreasonable in absence of the technology. In an opposite example, the Court in Drayton has said even the most minor gesture in response to an officer’s request can constitute consent for a search. Imagine an officer approaches a vehicle and asks the passenger, “may I open the trunk?” If the trunk opens automatically in response to a voice command, is it consent?

Furthermore, in Navarette v. California, the Court held that information regarding a vehicle’s specific description, place, and time can be treated as reliable eyewitness knowledge.⁴ In that case, even with “unimpeachable” driving, the police had reasonable articulable suspicion to make a stop. If these new cars are predictable, it will likely increase the risk of revenge tips as Justice Scalia warned in his dissent.

B. Unpredictable Behavior

Autonomous vehicles will make countless momentary decisions that cannot be explained without deep forensic analysis. Some of these decisions may include simple tasks like traffic routing, but some will be completely new.

In Illinois v. Wardlow, the Court recognized that fleeing in a “high-crime” area affects the analysis of reasonable articulable suspicion.⁵ If a car chooses such a route, should it matter? Anyone who has taken a traffic optimized route using a product like Waze has found themselves driving in an unusual place for the first time. Having that be a component to support a reasonably articulable suspicion is problematic.

In addition, autonomous vehicles can negotiate with one another to yield right of way or can choose to follow each other extremely closely, creating an extremely efficient virtual train that minimizes aerodynamic drag. The propinquity argument established in Maryland v. Pringle was applied to a group of individuals in a car that contained drugs.⁶ Should a set of vehicles, obviously travelling in unison, be considered proof of a common enterprise? What if there were three, where the vehicle in the middle was unoccupied but full of drugs?

C. Data Retention

Autonomous vehicles will use arrays of sensors, both inside the vehicle and out, to inform the controlling software of every variable. These sensors will include cameras that capture high resolution visual images as well as radar and lidar sensors that can measure and detect movement. All this data is processed on board the vehicle and much of it will be transmitted back to the manufacturer. The data captured, processed, stored, and transmitted by an autonomous vehicle is many thousands of times more comprehensive than what phones can capture today. Some of the sensors may even fail the Kyllo v. United States test for not being in “general public use,” at least during the early adopter stage.⁷

In Riley v. California, the Court held that police need a warrant to search a cell phone, unless exigent circumstances apply.⁸ Certainly, the data stored in an autonomous vehicle would be considered extensive and personal, as it likely captures not only travel information, but also conversations that happen within the vehicle.

But the sheer quantity of the data means that the system will be constantly overwriting and deleting contents. Will the impending loss of data create an automatic exigency? The Court did not address this directly, as cell phones can be turned off or stored in transmission-resistant bags while obtaining a warrant (where cars cannot). Furthermore, it is common police practice to download the contents of the event recorder (“black box”) in an accident investigation. Is this practice still constitutional, given the new quantity and quality of captured data? If law enforcement is justified in gathering this data from accident vehicles, should that extend to nearby, but uninvolved, autonomous vehicles that could provide the testimony of a “super eyewitness?” The Court in California v. Byers held that compelling a hit and run defendant to stay at the scene was not a violation of compelled self-incriminating testimony because the need to regulate traffic safety must be balanced against constitutional protections.⁹ Perhaps that same logic could be extended to compel these new vehicles, as “super witnesses,” to testify. Or the state may argue that the safety risks posed by autonomous vehicles render their operation as a “closely regulated” industry as defined in New York v. Burger.¹⁰ In any case, given how comprehensive the data collection will be, there will always be a reasonable basis to believe that evidence of almost any traffic arrest will be in the car, thus supporting the Scalia prong of Arizona v. Gant.¹¹

It is likely that this extensive privacy risk will first be exposed, if not tested, in a border crossing case. Under United States v. Flores-Montano, if the police can disassemble a gas tank without reasonable suspicion, they will likely be able to inspect the contents of the computing subsystems that expose every trip every passenger has ever taken in the car since it was built—and potentially even trips that other cars have taken which have been included in the vehicular training data.¹² The safety risks involved in the vehicular data may be more “tethered to the government’s interests” and the contents are less likely to run afoul of the First Amendment protections articulated by the First Circuit in Alasaad v. Mayorkas.¹³

D. Fleet Uses

Because the cars will be able to reposition themselves without drivers, there will be new, and much more efficient ways to own and use them. These include shared pools of autonomous vehicles, including as public transit.

Under Chandler v. Miller, the Court explained that where the risk to public safety is substantial and real, blanket suspicionless searches calibrated to the risk may rank as reasonable if done for safety purposes.¹⁴ Lower courts have found that suspicionless searches in airports, on subways, and on ferries can be reasonable. None of these cases held that more than a single person needed to be in a public transit vehicle for a search to be reasonable. If the government operated a fleet of autonomous vehicles as a component of a mass transit program, would that mean that under Miller, every occupant in every vehicle, even if alone, could be stopped and searched? Would it matter if there was a credible threat that someone in a vehicle was carrying a bomb?

In the private sector, it is likely that these vehicles will either be shared as a pool or will be temporarily sub-leased by individuals to defray ownership costs. Under United States v. Matlock, where one party has joint access or control for most purposes, he can consent to a search for evidence against another.¹⁵ While that holding was applied to homes, could it extend to shared autonomous vehicles? Perhaps not, but there may be two lines of cases that intersect, causing a new problem. Under California v. Carney, the test for whether a vehicle is a home considers whether a vehicle is readily mobile, on public streets, and is being used as a home.¹⁶ But a new class of recreational vehicles, designed for long term sleeping and able to stay in unattended motion, may change the analysis. Will the owner be considered to only be like the hotel clerk in Stoner v. California¹⁷ or can he give consent to a search while a joint user is renting? While it may seem like a stretch to imagine a subscription to a shared fleet of autonomous homes, one only needs to think back a decade to realize what a stretch it would have been to consider the evolution of cell phones to where they are today.

CONFUSION IN COURT

In the absence of legislation, courts will have no choice but to stretch these existing analogies to fit new fact patterns. In United States v. Pritchard, the Seventh Circuit explained that a magistrate’s determination of probable cause should be “given considerable weight.” However, when dealing with technology, it may be unwarranted to rely on the common sense or judicial experience of a magistrate to determine what is reasonable. Just this year, the USPTO wrestled with the question of how to treat Artificial Intelligence (AI) in the cases of the DABUS Patents, where an applicant attempted to file a patent for an invention created by AI. Although the Agency held that AI had no “legal personality” enabling it to qualify as an inventor, these issues are only just being argued for the first time. Especially with respect to cases with criminal consequences, it is unlikely that the lowest level of our judiciary is the place to establish findings that deserve any deference at all.

In addition to magistrates who, as a class, do not tend to be on the leading edge of technology adoption, police officers will be excused for arrests where they can find alternative justifications after the fact, even when no law was violated, like in Devenpeck v. Alford.¹⁸ And under Heiein v. North Carolina, police can be excused for any reasonable mistake of law.¹⁹ Given the fact that each state will regulate autonomous vehicles differently, these mistakes will be common, if not inevitable, even though many of these cases should not be turning on the vagaries of state laws in the first place.²⁰

Even less predictable are legal tests which rely on community standards, such as in the case of the reasonable expectation of privacy test in Katz v. United States, the court would still have to grapple with the question as to whether there is an “expectation that society is prepared to consider reasonable.”²¹ In the case where society at large has not experienced and does not understand the technology, this becomes challenging—if not impossible.

Autonomous cars will cause problems for cases even when they are not at the center of the controversy. Take, for example, the case where a sobriety roadblock is established, where the police are going to stop every fifth car. Under Michigan Department of State Police v. Sitz²², this program is permissible, as police are not engaging in a random suspicionless stop, which is prohibited under Delaware v. Prouse²³. But what if, for example, the fifth car in line was autonomous, with only a sleeping passenger in the back. Assuming that the occupant cannot be guilty of a DUI, should the police stop it anyway? Or should they skip it and stop the sixth driver in line? Either decision may be problematic, and circuits will inevitably split. Or consider the use of a new stingray that allows communication—potentially even control—with a vehicle. Will that be a meaningful interference of the possessory interest of the car, as was the case in United States v. Jones²⁴, or would it matter that the interception was just of metadata being shared with a third party?

CONCLUSION

Just as our constitutional rights should not turn on the vagaries of state laws or private contracts, such as the terms of use for the vehicle, they should not passively drift in reaction to the advancement of technology. In the absence of comprehensive litigation, the Court has found it necessary to declare limits to the erosion of constitutional protections when common behavior changes. Today, we often trade our privacy rights for convenience when we use mobile devices and internet services and the Court has responded with cases like Carpenter.

Autonomous vehicles will create the same issue, where safety and convenience are offered only in trade for infringements of our constitutional rights.

The worst way to adapt the law to new technology scenarios is to wait for the law to break down. Judge made law is too slow, too imprecise, and too difficult to apply to rapidly evolving fact patterns. The better way is through comprehensive legislation. There is a lot of effort being devoted to the regulatory frameworks for autonomous vehicles, but they prioritize safety issues before these second-order effects on criminal procedure. Legislation like Title II or the Stored Communications Act (SCA) are good examples that should be directly extended to cover the kind of data collected, processed, and transmitted by these cars. But it will not be enough. I think the patent office got it wrong, and we should do something more transformative. We need a legal framework to treat Artificial Intelligence as a person—capable of forming independent intent. While that sounds radical, it is less of a stretch of legal fiction than treating a corporation as a person, especially in the context of insulating the rights of citizens from encroachment from technology.

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Michael Angiulo has certainly led an impressive career. Mr. Angiulo is a mechanical engineer and former Microsoft Corporate Vice President where he led the Microsoft Surface and Xbox hardware teams. After twenty-five years in product development, he earned his J.D. with High Honors from the University of Washington and joined Friedman Rubin PLLP as an attorney Of Counsel. Mr. Angiulo’s practice at Friedman Rubin PLLP currently focuses on litigating accidents involving complex mechanical, software, and systems failures. Mr. Angiulo is also a Senior Executive Advisor with Envorso, helping companies develop the software necessary to create the next generation of autonomous vehicles.

¹ See generally, Kelsey Shoub et al., Race, Place, and Context: The Persistence of Race Effects in Traffic Stop Outcomes in the Face of Situational, Demographic, and Political Controls, 5 J. of Race, Ethnicity & Pol. 481 (2020).

² See Whren v. U.S., 517 U.S. 806, 810–13 (1996).

³ See Illinois v. Caballes, 543 U.S. 405, 409–10 (2005).

⁴ See Navarette v. California, 572 U.S 393, 398–401 (2014).

⁵ See Illinois v. Wardlow, 528 U.S. 119, 124 (2000).

⁶ See Maryland V. Pringle, 540 U.S. 366, 372 (2003).

⁷ See Kyllo v. U.S., 533 U.S. 27, 34 (2001).

⁸ See Riley v. California, 573 U.S. 373, 387–88 (2014).

⁹ See California v. Byers, 402 U.S. 424, 428–31 (1971).

¹⁰ See generally New York v. Burger, 482 U.S. 691 (1987).

¹¹ See Arizona v. Gant, 556 U.S. 332, 352–54 (2009) (Scalia, J., concurring).

¹² See generally U.S. v. Flores-Montano, 541 U.S. 149 (2004).

¹³ See generally Alasaad v. Mayorkas, 988 F.3d 8 (1st Cir. 2021).

¹⁴ See Chandler v. Miller, 520 U.S. 305, 323 (1997).

¹⁵ See U.S. v. Matlock, 415 U.S. 164, 169–71, 179 n. 14 (1974).

¹⁶ See California v. Carney, 471 U.S. 386, 392–95 (1985).

¹⁷ See generally Stoner v. State of Cal., 376 U.S. 483 (1964).

¹⁸ See generally Devenpeck v. Alford, 543 U.S. 146 (2004).

¹⁹ See Heiein v. North Carolina, 574 U.S. 54, 57 (2014).

²⁰ See, e.g., Virginia v. Moore, 553 U.S. 164 (2008).

²¹ Katz v. U.S., 389 U.S. 347, 361 (1967) (Harlan, J., concurring).

²² See generally Mich. Dep’t of St. Police v. Sitz, 496 U.S. 444, (1990).

²³ See generally Delaware v. Prouse, 440 U.S. 648 (1979).

²⁴ See generally U.S. v. Jones, 565 U.S. 400 (2012).

Last week was National Pro Bono legal services week in the US. We are very proud of the many Friedman Rubin attorneys and paralegals who take time out of their busy day to provide those in need with this much needed help. Thank you for what you do!

Our friends at the Sexual Violence Law Center held their annual fall fundraising event last week. They hosted a very creative virtual heist adventure based on the still-unsolved 1971 D.B. Cooper airplane hijacking. In the special ‘inflight magazine’, a page was devoted to National Pro Bono Week and here, Friedman Rubin attorney Cheryl Snow was featured. Thank you Cheryl for what you do!

(In the United Kingdom, National Pro Bono legal services week is celebrated this week instead of last. Of course. Over there, they also insist ‘chips’ is something you eat, not gamble with. We rest our case.)

We are thrilled to share the news that Michael “Mike” Angiulo, a recent graduate of University of Washington’s School of Law, has joined Friedman Rubin as of-counsel attorney.

What makes Mike an unusual law school graduate is that this is his second career although it was meant to be his first. Already as a teenager, he knew he wanted to be a product liability attorney. He went to engineering school with the intention of doing engineering law, but a summer internship at Microsoft where he got to work directly with Bill Gates made him change course and stay at the company. In just 9 years he rose from being a lowly summer intern to Corporate Vice President and stayed with the company for 25 years. During that time Mike led teams working on Office products, PCs and peripherals, tablets, gaming consoles, getting to preside over some of the biggest innovations in the history of personal computing. Most recently before law school he was Corp VP at Microsoft for a team working on cloud-based artificial intelligence (AI) projects.

And now he is where he originally intended to be – a product liability lawyer. It’s been a remarkable journey, but the consistent thread is Mike’s desire to work “at the intersection of technology and humanity”. As products and services will only continue to increase in complexity (think artificial intelligence) there are many questions about whether the law’s ability to keep people safe is keeping up with the speed of innovation.

Mike is uniquely positioned to understand this complex space and how the law makes it possible to act when highly sophisticated technology causes harm, holding the rule-breaking corporations behind them accountable.

For a more in-depth article on Mike’s journey, please have a look at this Sept 2020 GeekWire article. His full biography is here.

In addition to being a freshly minted attorney, Mike is also an accomplished commercial pilot, rated in a wide range of single and multi-engine aircrafts, including landplanes, seaplanes, and gliders. He also enjoys sailing, scuba diving, and racing cars.

As plaintiff-side trial lawyers, Friedman Rubin | PLLP is a proud member of Washington State Association for Justice (WSAJ), the oldest and largest civil justice advocacy organization in the Pacific Northwest. By being dedicated to safeguarding the Seventh Amendment constitutional right to a trial by jury, WSAJ works with Washington’s top law firms, attorneys, legal professionals and consumer groups to protect the legal rights of wronged consumers, injured citizens, patients and workers.

Every year WSAJ presents a number of awards to recognize outstanding consumer activists, journalists, legislators, judges and lawyers. This year, we are thrilled to have two WSAJ award winners within the firm. We couldn’t be prouder to have Rachel and Ron as part of Friedman | Rubin PLLP!

Rachel Luke – Carl Maxey Diversity Award
At Seattle University, Rachel was the Managing Editor of the Seattle Journal for Social Justice and Vice President of the Black Law Student Association. She has co-chaired the WSAJ Diversity Committee, currently serves on the WSAJ Diversity and Inclusion Taskforce, and was instrumental in the decision to hire a Diversity and Inclusion consultant. She has mentored Fellows from the WSAJ Trial Advocacy Summer Fellowship program. Rachel has maintained leadership positions in the Korean-American Bar Association and the Lauren Miller Bar Association for several years. She volunteers her time pro bono for the Sexual Violence Law Center.

Click to watch Rachel being presented with her award.

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Ron Park – New Lawyer “Ready to Soar” Award
After graduating Magna Cum Laude from the UC Irvine School of Law, Ron served as law clerk to the Hon. Josephine L. Stato at the U.S. District Court for the Central District of California and the Hon. Jacqueline H. Nguyen at the U.S. Court of Appeals for the Ninth Circuit. Ron is the current president of the Korean-American Bar Association and donates his time pro bono for their legal clinic. Ron has contributed significantly to numerous cases handled by Friedman | Rubin PLLP including trying two cases together with firm partner Peter Mullenix during the COVID pandemic. Internally at the firm Ron is known as “the kind of guy when you don’t know where else to turn you turn to Ron. He gives you the answer, quick, it’s always right, it’s well reasoned, and it’s supportive.”.

Click to watch Ron being presented with his award.

Cruising is an extremely popular activity, especially among seniors and retired persons, and cruise injuries are common and sometimes deadly. This is common knowledge to cruise line operators, but not necessarily to cruise passengers. Cruise lines require that all passengers agree to a “cruise contract” as part of their ticket purchase, yet most passengers do not read or understand this contract until it is too late. One of the more common features of a cruise contract is a damages limitation in the event of injury or death.

The ports you visit on your cruise may limit your legal right to recover for injuries or death:
Most cruise contracts contain damages limitations provisions that depend on where the cruise originates, terminates, and which ports the ship visits during its voyage. In general, there are three different categories: (1) cruises that call on a US port during its voyage; (2) cruises that stop at a port of a member nation of the European Union port during its voyage; and (3) cruises that neither touch a US nor an EU port during the voyage.

Cruises that touch a US Port – no limitations: If your cruise touches a US port during its voyage, then under U.S. Admiralty Law, no damages limitation may be imposed for personal injury or death. See 46 U.S.C.A. § 30509. Thus, as a practical matter, cruising on voyages that originate, terminate, or visit a U.S. port afford you the most security in the event of catastrophic injury.

Cruises that touch an EU member nation port – Athens Convention applies: If your cruise touches the port of an EU member nation (and not a U.S. port), then the Athens Convention and its terms will apply, and your right to recovery will be limited accordingly. The Athens Convention is a multi-national treaty that was signed in 1974 and applies to the carriage of passengers and their luggage at sea. The treaty provides for a limit of liability for injury or death that is measured in “Special Drawing Rights” (or SDR), which is a unit of currency created by the IMF that is determined based on a composite value of several currencies, including the U.S. Dollar, the Euro, and the Japanese Yen.

The limitation on liability fluctuates from year to year, as does the value of a Special Drawing Right. In 2020, the limitation was 400,000 SDR, which equaled approximately $551,000.00 USD.¹ Courts may uphold this limitation in court, and passengers should be aware of its existence before booking cruises that do not touch U.S. Ports.

Cruises that touch neither U.S. nor E.U. member ports – buyer beware! If your cruise neither touches a U.S. nor an E.U. member nation port, then your cruise contract may contain a limitation on liability that will severely impede your rights in the case of an injury or death. These damages limitations are often stingy and extreme, and may be buried in the fine print so as to avoid detection. For example, one popular Seattle-based cruise line limits its liability to $75,000.00² for injury sustained on a cruise that does not originate, terminate, or call on any U.S. or E.U. port.

Cruise passengers need to be aware of severe limitation on damages when purchasing a cruise that does not call on any U.S. or E.U. port. These cruises may appear to be a “good deal”, but catastrophic injury or death can and does occur, and your right to recovery may be severely limited on these type of cruises.

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This article is written by David Roosa, a Partner at Friedman | Rubin, PLLP. David has handled numerous cruise cases, including obtaining a jury verdict of $1,351,200 in Oct 2020 against Holland America Lines (details here) and settled another case against Holland America Lines for a confidential amount (details here). Read more about David on his profile page.

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¹ Source: Holland America Line Cruise Contract Section (E), https://www.hollandamerica.com/en_US/legal-privacy/cruise-contract.html

² Source: Windstar Cruise Contract, as of March 29, 2021 https://windstarcruises-media.s3.amazonaws.com/media/plan_your_voyage/cruise-documents/passage_contract_clean_072517.pdf

Bellevue Washington, July 27, 2021.

A Friedman Rubin, PLLP trial team led by Rick Friedman, Sean Gamble, and Henry Jones, obtained a $185 Million Dollar verdict today in the case of Erickson et. al. v. Monsanto. The case involved three public school teachers who sued Monsanto and its corporate successors for poisoning teachers, students and parents who attended Sky Valley Education Center in Monroe, Washington between 2011 and 2016. The three teachers were the first plaintiffs to reach trial against Monsanto from a group of over 200 teachers, students and parents exposed to leaking PCB ballasts in fluorescent light fixtures at the school. The verdict follows years of hard-fought litigation between Monsanto, now owned by Bayer Pharmaceuticals, and a group of parents, students and teachers who would not give up in their quest for justice.

The verdict announced today was more than requested by Friedman Rubin’s lead counsel, Rick Friedman. In closing argument, Friedman suggested, at minimum, that the three teachers be awarded $10M each and punitive damages of three times that award. The jury, however, found that damages should be set at a higher level. It awarded each of the teachers compensatory damages ranging from $15M to $18M.

But that was not all. Friedman Rubin successfully argued that Monsanto was subject to punitive damages under Missouri law where Monsanto made its decisions, even though the case was litigated and tried in Washington state which does not provide for punitive damages in this type of case. The trial court agreed that Missouri law applied. Under the verdict applying Missouri law Monsanto will be punished for its decisions which led to the poisoning of hundreds of teachers, students and parents in Washington state. The jury awarded punitive damages of $45M for each of the three teachers to punish Monsanto for its reckless disregard of safety and to deter other manufacturers from repeating similar reprehensible conduct in the future.

Following the verdict Rick Friedman said: “This is a big step in holding Monsanto accountable for poisoning every man, woman and child in North America. If politicians won’t make Monsanto clean up its mess, juries will.”

This verdict has been covered by a number of news outlets:
– Jury awards plaintiffs millions in case over toxins found in Monroe school | king5.com
– King County jury awards $185M to 3 teachers who suffered brain damage from toxins at Monroe school | The Seattle Times
– Monsanto told to pay teachers $185M over chemical exposure (apnews.com)
– CVN’s Top 10 Most Impressive Plaintiff Verdicts of 2021 | cvn.com

By Beth Bloom

This article was reposted from the July/August 2021 issue of Trial News, the monthly newspaper of the Washington State Association for Justice.

Law school teaches us to be tacticians. To think like a lawyer means to identify the relevant facts and apply the law to those facts in a way that supports our client’s interest. A skilled advocate can argue either side of a case. The personal values and emotions of the individual lawyer are irrelevant. Or so we are told. This is the zealous lawyer’s code. Yet after presenting a logical, rational, and compelling case, good lawyers still lose. Why? Rick Friedman knows why.

Now 41 years into a remarkable career as a trial lawyer and author, Rick Friedman answers this question in his latest book The Way of the Trial Lawyer: Beyond Technique. His new book speaks to the seasoned lawyer who is ready to put down the skills manual and take up the important conversation of moral advocacy. Friedman’s uncanny gifts—to see farther and look deeper into the heart and meaning of our work as trial lawyers—are on full display.

Friedman did not need to write another book to establish himself as master teacher in the art of advocacy. He is a prolific writer whose books include bestsellers Rules of the Road: A Plaintiff Lawyer’s Guide to Proving Liability, and Polarizing the Case: Exposing and Defeating the Malingering Myth. All the books are among the most influential ever written on trial advocacy.

I sat down with Friedman in his Bremerton office to discuss his new book. Our meandering conversation covered everything from moral advocacy, therapy, and overcoming fear, to finding meaning in the practice of law.

From a large desk stacked with papers, Rick Friedman can see the water.

The ferry winds its way to downtown Seattle just beyond the inlet outside his small office building. Shelves filled with books, family photos, and art line the walls. He has been recording an audiobook and a large microphone sits on a nearby table. A cart in the middle of the room contains thick reference materials on toxicology and chemistry. He will soon begin the first of 23 trials against Monsanto, whose chemical products have poisoned America’s schoolchildren throughout the country.

Rick Friedman was a bookish kid. He absorbed himself in words. Books served as “owner’s manuals” guiding him to build a life of purpose and integrity. He expected to become an author. Attending law school was a detour. It is no wonder that he has spent much of his legal career generously writing and sharing what he has learned in guidebooks for other trial lawyers.

We lose when we ignore the moral force of our cases, says Friedman. Civil advocacy is not morally neutral. “We are feeling creatures,” he says. “It is feelings and emotions that give meaning to our lives. It is feelings and emotions that allow us to connect with others.” Is it any wonder then, that who we choose to represent and what we choose to do with our skills has an impact on whether we win or lose? Isn’t there a difference between representing a company that has marketed a defective product and representing the widow and the orphan of a man killed by that product? “A morally conflicted lawyer is an ineffective advocate,” Friedman continues. “But a lawyer who leads with the heart will have a power most lawyers never have.”

The key is moral energy, Friedman continues. “The first step in developing moral steadiness is allowing yourself to feel the power of moral energy in the courtroom.” But, what is moral energy and how can we tap into it, I wanted to know. Moral energy is like an “electrical charge” that exists inside the facts of every case. It just feels wrong. “A charge of moral energy can serve to attract or repel. It can help connect us to jurors, judges, or witnesses; or it can separate us from them.”

I thought of a recent trial where the owner of a car dealership ridiculed our client’s cancer and then fired him while he was on medical leave. It just felt wrong because it was wrong. Many people consider it morally reprehensible to attack the sick or weak in our community. It was no surprise when the jurors sent a strong moral message with their verdict.

And it just feels wrong when a paid courtroom doctor claims our client is faking her injuries to recover in a lawsuit after her husband, treating physician, and best friend all testified about her struggle to recover. Many people consider it disgraceful to falsely accuse someone of lying. It is much easier to use the moral energy of revulsion to unite the jurors and your client in defeating the uncaring boss or the accusatory courtroom doctor.

But moral energy goes both ways. Moral energy is also present when we consider the uncomfortable parts of our cases, Friedman warns. Many of us do not like to think too much about our “bad facts.” But how can we walk the jury through the emotional minefields of the case if we “have not walked through those minefields ourselves?” Without spending time with these uncomfortable issues, he says, “you are susceptible to being knocked off balance at trial.”

Then we started to talk about rocks. You can think of your case as a “bucket of rocks,” Friedman began. Each rock is a fact in your case. “It’s up to you to decide which rocks you pull out and how you arrange those facts to tell your story.” For instance, you can see a man who is undeserving because he has held over 15 jobs, never able to hold down any job for more than a few months. Or you can see a man given little opportunity in life but who “never gives up” because whenever life knocks him down, he gets back up again and keeps trying. How can jurors not like a person like this? Same facts. Different story. Different moral energy.

Lawyers are naturally obsessed with facts. But overfocus on facts can be dangerous. Moral energy depends on the facts, Friedman acknowledges. But the important moral energy is greater than the facts because it lives beyond the facts. “Too often, we are so focused on the facts that the moral energy in our case gets lost,” he warns.

I thought of every case I ever had in the first 15 years of my practice. I would obsessively catalog every fact, get lost in the details, and forget that most cases turn on only a few facts. And those important facts, Friedman reminds us, are the ones that generate the moral energy of the case.

Why does a defense attorney who can harness hundreds of facts, show countless PowerPoint slides, and deliver an exhaustive hour-long closing argument still lose her case? Yet I can give a shorter closing, with far less detail, and still win? The answer is moral energy: I am arguing that everyone should be given an equal chance to succeed. Who doesn’t want to support fair treatment?

It’s not that facts are unimportant, Friedman continues. “The moral energy comes from the facts, of course, but we need to organize the facts in a way to highlight the moral energy.” As Friedman observes in his book, “Facts don’t persuade, moral energy does.”

Rick Friedman hopes readers of his new book, The Way of the Trial Lawyer: Beyond Technique, will understand that, by opening to the moral energy in each case, we can become better advocates and better people. The practice of law is more than a business. Law school professors be damned: morality has everything to do with the practice of law.

When we act as amoral zealous technicians, Friedman warns, we are “abandoning our role as moral agents.” But when we turn inward to find strength and sort through the moral complexities of our cases to find the part we believe “down to our bones,” we are firmly rooted in fighting for something bigger than ourselves. And that, says Friedman, is The Way of the Trial Lawyer.

By Ron Park, Friedman | Rubin, PLLP

This article was reposted from the June 2021 issue of Trial News, the monthly newspaper of the Washington State Association for Justice.
https://www.trialnewsonline.org/trialnews/june_2021

Take two plaintiffs. Both live in Washington. Both purchase a car designed and made by a global corporation that advertises, sells, and delivers thousands of cars in Washington. Both get into crashes in Washington and are injured. In both cases, the crash appears to have been caused by a defect in the car. But there is one difference. One plaintiff bought her car directly from the corporation who manufactured and delivered it to her in Washington. The other plaintiff bought her car secondhand from a third-party in Idaho without ever interacting with the corporation directly. Should that second plaintiff be allowed to sue the corporation in Washington the same as the first?

As silly as that question might sound, the U.S. Supreme Court recently considered a variation of that question in two consolidated cases: Ford Motor Co. v. Montana Eighth Judicial District Court and Ford Motor Co. v. Bandemer.¹ One case arose out of Montana and the other arose out of Minnesota, but the relevant facts were the same. In each case, a state court held that it had jurisdiction over Ford Motor Co. in a products liability lawsuit stemming from a car accident. The accident happened in the state where the lawsuit was brought. The victim was a resident of the state. Ford did extensive and substantial business in each state, including advertising, selling, and servicing the car models at issue in each lawsuit. Nonetheless, Ford argued that the state courts had no jurisdiction over it because the particular car involved in the crash was not first sold in the forum state, and it was neither designed nor manufactured there.

To Ford, the proper jurisdictions for suit were the locations where the vehicles were assembled (Kentucky and Canada), where the vehicles were designed (Michigan), where the vehicles were first sold (Washington and North Dakota), where Ford is incorporated (Delaware), or where Ford has its principal place of business (Michigan). The place of accident and injury was immaterial.

In making its arguments, Ford relied heavily on two of the Supreme Court’s most recent personal jurisdiction cases: Bristol-Myers Squibb Co. v. Superior Court of California² and Walden v. Fiore.³ Both cases had meaningfully narrowed the scope of personal jurisdiction for plaintiffs seeking to sue out-of-state defendants, and Ford wanted to use the Supreme Court’s recent decisions to narrow that scope even further. Ford may have felt confident pushing the boundaries of the law given that Walden was a unanimous 9-0 decision, and Bristol-Myers was almost as lopsided at 8-1 (Justice Sotomayor being the lone dissenter).

Other recent Supreme Court cases such as Daimler AG v. Bauman⁴ and Goodyear Dunlop Tires Operations, S.A. v. Brown⁵ had established a trend of opinions increasingly restricting personal jurisdiction. There appeared to be little, if any, resistance among the justices to steadily narrowing personal jurisdiction further and further. Goodyear was a unanimous 9-0 decision, and Daimler had all nine justices in agreement on the judgment (Justice Sotomayor filed a lone concurrence). As if to illustrate the unity of the Court on these matters, Justice Ginsburg authored one unanimous 9-0 decision (Daimler), and Justice Thomas authored the other (Walden). Ford had reason to feel good.

Yet apparently, Ford’s arguments were a bridge too far for the entire Court. In a stark reversal, the Court unanimously agreed, 8-0⁶ , that Montana and Minnesota had personal jurisdiction over Ford. Although the justices could not agree on a single opinion, all of them emphatically rejected Ford’s arguments. Justice Kagan, writing for five justices and the Court, noted that “this Court has used this exact fact pattern (a resident-plaintiff sues a global car company, extensively serving the state market in a vehicle, for an in-state accident) as an illustration—even a paradigm example—of how specific jurisdiction works.”⁷ She refused to acknowledge that the question was at all close, declaring that Bristol-Myers and Walden “stand for nothing like the principle Ford derives from them.”⁸ According to the Court, it could “resolve these cases by proceeding as the Court has done for the last 75 years.”⁹

The concurring opinions were no kind¬er to Ford. Justice Alito wrote that both cases “can and should be decided without any alteration or refinement of our case law on specific personal jurisdiction.”¹⁰ He described Ford’s reading of the law as “unprecedented” and considered the standard for personal jurisdiction “easily met here.”¹¹ Justice Gorsuch (joined by Justice Thomas) observed that “[t]he parties have not pointed to anything in the Constitution’s original meaning or its history that might allow Ford to evade answering the plaintiffs’ claims in Montana or Minnesota courts.”¹²

If Ford’s vision of the law had prevailed, plaintiffs would have been severely hampered in being able to bring products liability lawsuits. In today’s economy, it is rare for consumer products to be designed, manufactured, and sold directly to end-user customers within the boundaries of a single state. Many times, the design and manufacture of a product is spread out all over the world, and the product itself passes through several intermediaries in different locations before arriving at the customer’s doorstep. Under these circumstances, most plaintiffs injured by defective products would have been unable to bring suits against manufacturers in their home state, even if they had purchased the product in-state based on advertising they viewed in-state. They would have had to go abroad to seek justice.

And per Ford’s analysis, there was no apparent limit to how finely a defendant could slice the relevant conduct to negate jurisdiction. For example, would Ford have accepted jurisdiction in Kentucky where the vehicles were assembled? If the claim were for design defect, one could easily imagine an argument that Kentucky was not a proper forum because the product was designed in Michigan. Or what if the car had stayed in North Dakota or Washington? Would Ford have accepted jurisdiction? Or would Ford have argued that, because the plaintiff bought the car secondhand from a third-party, Ford had not engaged in any particular conduct in those states that led specifically to the injury at hand? In many cases, Ford’s reading of the law would have limited suit to the manufacturer’s state of incorporation or the state where it keeps its principal place of business. Specific jurisdiction would have been a dead letter.

Fortunately, the Court’s holding conclusively rejects these scenarios and will hopefully diminish, if not stop, what has become a common practice of out-of-state defendants routinely filing motions to dismiss to avoid jurisdiction in this state. More fortunately still, the Court does so by relying on the existing analytical framework that it established in International Shoe Co. v. Washington¹³ and developed in subsequent cases. This means that parties can continue to rely on those cases, secure in their authority, rather than having to learn a completely new approach to analyzing personal jurisdiction. While the Supreme Court has not been favorable to plaintiffs on personal jurisdiction in recent years, this latest opinion can be considered a clear departure from that trend.

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Ron Park, EAGLE member, is an associate at Friedman | Rubin PLLP in Seattle.

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¹ 592 U.S. ___ (2021).
² 137 S. Ct. 1773 (2017).
³ 571 U.S. 277 (2014).
⁴ 571 U.S. 117 (2014).
⁵ 564 U.S. 915 (2011).
⁶ Justice Barrett took no part in the consideration or decision of the cases.
⁷ Ford Motor, Nos. 19–368 & 19–369, slip op. at 12.
⁸ Id. at 15.
⁹ Id. at 7 n.2.
¹⁰ Id. at 1 (Alito, J., concurring).
¹¹ Id. at 2 (Alito, J., concurring).
¹² Id. at 11 (Gorsuch, J., concurring).
¹³ 326 U.S. 310 (1945).

In celebration of May being Asian/Pacific American Heritage Month, Friedman Rubin attorney Rachel Luke contributed to a Trial News article to share her personal story.

Read the full story at Trial News – May 2021 – Celebrating Asian/Pacific American Heritage Month (trialnewsonline.org)

“The AAPI community is not a monolith and has varying experiences. Growing up as a transracial international adoptee, I was introduced to Korean culture in the best way my parents knew how: samplings of kimchi and occasional campouts with other Korean adoptee families. I have always identified as Black, but it took me a while to also understand my Korean heritage. It was not until I went to the “Motherland” in 2009 that I truly began to appreciate Korean history and culture. My story is very different from my friends’ and their families’ immigration stories, struggles, and sacrifices, but we are part of the same diaspora of people who come to the U.S. for various reasons. These stories should be honored. I am proud to stand with the AAPI community in celebrating the diverse and rich cultures within.”

If you are interested in learning more or want to actively participate in stopping hate crimes against Asians, I encourage you to check out https://stopaapihate.org/. A 2017 study published by Yale Law School and the National Asian Pacific American Bar Association (NAPABA), A Portrait of Asian Americans in the Law, is a great read. This report is a systemic analysis of how Asian Americans are situated in the legal profession and can be found here: https://www.apaportraitproject.org/.

Reposted with permission from Trial News, a publication from Washington State Association for Justice.

Rick Friedman’s best selling new book, The Way of the Trial Lawyer – Beyond Technique, published by Trial Guides, is getting great reviews.

Randy Kinnard reviewed the book for the Tennessee Trial Lawyer magazine. His detailed review concludes: “I will keep Rick’s book on the shelf I call ‘My Favorite Books’ and pull this treasure down for another read often. Once you read it, it’s quite possible that you will think that this is the best book for trial lawyers you ever read.” Kinnard’s full review can be read here.

Stuart Zanville reviewed the book for CAALA, the Consumer Attorneys Association of Los Angeles. His review concludes: Trial lawyers can take much from this book, not the least of which are the words ‘Teiwaz Lawyer.’ Like the rest of the book, those words describe the characteristics of the ideal trial lawyer and how they can aspire to be better and increase their sense of purpose and satisfaction while traveling the way of the trial lawyer. The book may be for trial lawyers, but the lessons are for everyone.” Read his full review here.

The Way of the Trial Lawyer – Beyond Technique is available from the publisher, Trial Guides. For more reviews and ordering information on any of Rick’s books or videos, click here.

By Lewis Kamb | Seattle Times, 4/27/2021

Over more than a dozen years, former Puyallup junior high teacher and coach Tim Paulsen focused his attention on boys with troubled home lives and no father figures, according to interviews and court records. Paulsen openly gave his Kalles Junior High students hugs, held one-on-one meetings with them, wrote them personal letters of encouragement and talked about religion with them, a lawsuit filed last year contends. Sometimes, he’d take the boys on trips, bring them home for sleepovers, even shower with them after games and practices. Along the way, Paulsen sexually molested them, the lawsuit states. A year after seven former students sued the Puyallup School District for neglecting to prevent the teacher from his “repeated acts of grooming and sexual abuse” during a career that spanned from 1991 to 2004, the district has paid a $7.75 million settlement.

The former students — all men now ranging in age from 30 to 41 — separately came forward to attorney Julie Kays in 2019 to disclose Paulsen’s alleged abuse, and the role the district played in it, after seeing a KIRO TV news report about similar claims made by another ex-student that resulted in a separate $1.5 million settlement. Paulsen’s abuse was so brazen that “it should have set off alarm bells to any reasonable educator,” said Kays, with the Seattle law firm Friedman Rubin. “He was violating every kind of norm,” she said. “But he’d bonded with the school’s principal at church and had such close friendships with several faculty members that they turned a blind eye to the fact that he was a child predator.” The Puyallup School District did not respond to several messages left Monday seeking comment about the settlement. Before paying what Kays described as an “astronomical sum” to settle the latest case, the district had denied it was liable “because Paulsen’s alleged conduct was not within the course and scope of his employment,” according to legal filings. Paulsen, 54, who still lives in Pierce County, works for a real estate firm and had been active in ministry work as recently as 2018, did not return messages Monday.

The recently settled suit represents the latest of several civil cases in which at least nine former students have alleged Paulsen sexually abused them. That includes a 2010 divorce filing by Paulsen’s ex-wife involving restrictions on visitation with their three children due to his “past sexual abuse of minors.” Paulsen has not been criminally charged regarding any of the abuse allegations. The statute of limitations for such charges has long expired, said Kays, a former King County prosecutor who specialized in sexual assault cases. “That still keeps me up at night,” a 30-year-old Pierce County man, the youngest plaintiff in the latest case, said in a recent interview. “He’s faced no consequences. I would trade this [settlement] any day of the week to see him held accountable.” The man, and another plaintiff interviewed for this story — a 40-year-old King County resident — asked not to be named. The Seattle Times typically does not identify victims of reported sexual abuse without their permission.

‘A blind eye’

Hired in 1991, Paulsen, then 24, was assigned to Kalles Junior High to teach and coach several sports, and “began his predatory grooming and molestation of vulnerable young boys immediately,” the lawsuit states. During his first year as a full-time teacher, Paulsen found “his first male student victim” — who’s now 41 and the oldest of the case’s seven plaintiffs. But even after some teachers and parents raised concerns about Paulsen’s “intimacy with young male students,” the principal and many of his colleagues routinely “turned a blind eye to the numerous acts of grooming, boundary crossing, and inappropriate conduct,” according to the suit. In 1997, after a father complained about Paulsen’s relationship with his son, the district opened an investigation. It revealed Paulsen had been found hugging a boy behind closed doors and was seen tickling another student on his lap, records show. Other teachers “have been told” about Paulsen’s conduct with boys, typically those “from troubled homes,” according to notes from the investigation included in the suit. Still, the district didn’t report Paulsen’s conduct to state child welfare officials or police. “Instead the District swept Teacher Paulsen’s predatory behavior under the rug and merely advised [him] to not have one-on-one contact with the named student,” the suit states. Within a couple of weeks of that 1997 admonishment, “it was like it didn’t exist,” Kays said. “No one ever enforced it.”

Paulsen worked at the school for seven more years and became “emboldened … to continue grooming and molesting other young male students,” the suit states. Among them was the 30-year-old Pierce County man, who alleges Paulsen abused him as a seventh-grade basketball player. The man said he ultimately escaped Paulsen by convincing his single working mom to transfer him to a different school. He never gave her the true reason. That man, now in recovery from pain pill addiction, said he soon started drinking, taking drugs and running away to “numb the pain” of his youth. He never really connected his troubles to what Paulsen did to him until about 18 months ago, when he finally broke down and told his parents about the abuse, he said. A week later, the man saw the TV news story about the other student’s lawsuit against Paulsen. “I spent a lot of years pretending I was OK,” he said.

Another plaintiff, the 40-year-old King County man, who is a married technology professional with two preschool-aged boys, said he hadn’t fully recognized that Paulsen abused him until he watched the 2019 news story. “It really made me second-guess everything,” he said. When he entered junior high, his parents had just divorced and he was “really looking for a male role model,” he said. Paulsen used religion “to worm himself into our family and gain trust.” “He was very convincing,” the man recalled. “He told me he was my quote-unquote ‘brother,’ and that he loved me and we were doing things that brothers do.” For him, the legal settlement isn’t about money, he added. “I wanted to bring awareness, both about him as an abuser and the district for allowing this to happen,” he said. “Hopefully, it can stop this from happening to some other kid.”

Seattle Times news researcher Miyoko Wolf contributed to this report.

 

Listen to Rick Friedman’s terrific interview with Benjamin R. Gideon and Rahul Ravipudi. Rick covers his evolution as a lawyer, beginning in Sitka, Alaska, taking every case that walked in the door. Rick was largely self-taught as a trial lawyer and has spent a lifetime learning skills needed to win in the courtroom. “Ethos” is the final ingredient that Rick says is often overlooked by trial lawyers. Authenticity, integrity . . . being emotionally centered in your own way will help you make the right judgment calls in the heat of trial. Looking inward, we all have behaviors formed as children that we need to come to terms with. Most are in self-denial about their own shortcomings. Rick describes his own revelations about himself that allow him to connect emotionally with a jury. The first step is addressing your own fears. “What would it be like if the jury sees the real you?”  Rick has the answer in his inspiring new book which he discusses here:

See Rick’s page for links to all his books for trial lawyers.

“The Power of Informed Consent,” by Peter Mullenix of Friedman | Rubin and Patrick Malone, Trial magazine, December 2020.

Download the PDF Version Here – The Power of Informed Consent

For more than a decade, a Friedman | Rubin client was forced to look over her shoulder, terrified that the stranger who dragged her off a downtown street and raped her in March 2007 would make good on his threat to kill her for reporting her sexual assault to Seattle police. It was not until October 6, 2020 that the rapist, Jonnie Lay, now 51, was found guilty of rape in King County Superior Court. This conviction, more than 13 years after the crime, should have come much sooner. Lay, a sex offender with a criminal history dating back to 1990, wasn’t in court to hear the verdict. Released from jail in April because of the COVID pandemic, Lay attended his trial but was then free for more than a month before he was arrested Nov. 23 on a $500,000 bench warrant, after he was found living in a tent near Woodland Park Zoo, according to court records and the victim’s attorney, Julie Kays of Friedman | Rubin. Lay is to be sentenced Feb. 5, with the state recommending he serve just over 11 years in prison, the high end of the standard sentencing range.

In a lawsuit filed earlier this month against the state and city, Kays alleges the Washington Department of Corrections (DOC) failed to properly supervise Lay in the years before the 2007 rape, thereby providing him the opportunity to rape her client when he should’ve been in jail. The suit also alleges the Seattle Police Department (SPD) failed to pursue investigative leads — including DNA evidence — that could have resulted in Lay’s arrest years before he was charged with rape in 2018 and extradited from Illinois. Instead, the lead detective originally assigned the case deactivated the investigation within weeks of the initial report without even interviewing the victim, according to the suit. According to Kays, the client “feels such a sense of betrayal from the Seattle Police Department for not testing her rape kit back in the day. It’s an institutional betrayal,” said Kays. “She doesn’t want another woman or man to go through what she’s had to go through, waiting for more than a decade for justice.” Citing DOC records that say Lay’s adherence to the requirements of his community supervision were “abysmal,” the lawsuit alleges DOC’s negligence resulted in Lay treating supervision as a joke as he continued to rack up criminal charges, including for domestic-violence assault, before he raped Kay’s client.

Lay had been on active DOC supervision since 1995. In 1999, he was charged with third-degree rape of a child for raping a 15-year-old girl in the back seat of a car in Montesano, Grays Harbor County; he later pleaded guilty to the lesser charge of third-degree assault with sexual motivation and was classified as a Level 1 sex offender. “Time and time again, DOC looked the other way, failed to seek warrants in a timely manner for his arrest and on countless occasions, not at all, and generally failed to make Lay’s supervision look like anything other than a joke,” Kays wrote in the lawsuit. Citing DOC records, Kays quoted a DOC officer, who in 2002 wrote: “Lay is a man with no remorse, who blames his many victims, and smokes crack cocaine on supervision.” In 2006, a year before the rape, a DOC community-corrections officer noted, “Mr. Lay’s behavior demonstrates his attitude to the rule of law and his requirements to register [as a sex offender]: he could not care less.”

The client was walking near Second Avenue and Pike Street when an old white Cadillac pulled up beside her on March 14, 2007. A man — Jonnie Lay — got out and pulled her into the backseat. The Cadillac’s driver dropped them off in a wooded area, where Lay pinned her to the ground and raped her, threatening to stab her with a screwdriver if she continued to fight him. She later told police her rapist made derogatory comments about women and told her, “If she was going to be out walking around, she should expect this type of treatment,” the charges say. After calling the Cadillac’s driver to come pick him up, Lay raped her again in the vehicle’s backseat. During the assault, Lay dropped his ID card and she read his name. Lay threatened to kill her if she told anyone about the rapes, telling her it would be easy to find her because he knew she was homeless and living at a shelter. She nevertheless reported the rape and provided the responding police officer with a suspect description and Lay’s name, and she agreed to go to Harborview Medical Center, where she underwent an hours-long sexual-assault examination during which her body was photographed and swabbed for DNA evidence. The forensic evidence was packaged in what is commonly known as a “rape kit.” On the drive to the hospital, the officer said her case wouldn’t go anywhere because she was a homeless drug user, according to her lawsuit.

When a detective phoned her a few days later to schedule a follow-up interview, he assured her that her rape kit would be tested. But he never submitted it to the State Patrol Crime Lab for testing. The lawsuit alleges the detective did “the bare minimum” to follow up with the victim, leaving her a voice message and sending her a letter, neither of which she received. A few weeks later, the detective marked the rape case as inactive, the lawsuit says.

Given Lay’s lengthy criminal history that predated this rape, his DNA profile was already in the Combined DNA Index System (CODIS), a law enforcement DNA database operated by the FBI. Had the victim’s rape kit been sent to the crime lab for testing, male DNA from victim’s body would have quickly been matched to Lay’s profile in CODIS, the lawsuit says. Instead, she had to live with the fear that her rapist could find and kill her, Kays wrote in the lawsuit. “For over a decade, (the client) felt degraded, dismissed and that the cruel words of the responding officer were true: she did not matter, she was just a homeless rape victim.”

Until legislation went into effect in July 2015, it was up to individual officers or detectives to decide whether to submit a rape kit for testing. Often, the decision to request testing hinged on whether police believed a victim’s account, or considered her credible enough to testify at trial, according to a Seattle Times report in 2016. The Legislature revoked that discretion, requiring every new rape kit be submitted for testing and dedicating funds to test rape kits that had sat untouched in police evidence storage facilities, sometimes for decades.

As of November, there were 5,096 of the 10,311 previously untested rape kits found across the state had been submitted for DNA analysis: Of the 1,959 DNA profiles entered into CODIS from the newly tested kits, 869 of them — or just over 45% — resulted in CODIS “hits” to known offender DNA, according to information provided by the state Attorney General’s Office. It is unknown how many of the CODIS hits have led to criminal charges. Charging documents filed against Lay blame the delay in testing the rape kit to the statewide rape-kit backlog. But court records also show the state successfully argued a pretrial motion, barring the jury from hearing any evidence about why it took so long for Lay to be criminally charged.

Kays, a former prosecutor, said she’s grateful for the work done by the SPD detective who reopened her client’s rape case but said it’s concerning that police initially may have been biased against her client. “Just because someone is homeless and maybe they struggle with substance abuse issues does not mean they are not as deserving of a rigorous investigation as somebody who lives in a nice home, in a nice neighborhood, and is stone-cold sober,” she said.

Julie Kays and Friedman | Rubin thank reporter Sara Jean Green at the Seattle Times for her thoughtful article on our client’s case, which provided content for this blog post.

Rick Friedman’s new book, The Way of the Trial Lawyer – Beyond Technique, is the best selling book at the publisher, Trial Guides, since its release. In the new book Rick argues that there is something beyond technique. Something beyond biased jurors and judges or difficult facts. And this something often makes the difference between winning or losing.

Friedman argues that there is “another model available to us. It is that of a lawyer leading with heart; the lawyer as teacher… the lawyer who can stand solid in the courtroom—amid chaos, confusion, and unfairness—pointing toward the moral truth.” Friedman demonstrates how to find that moral truth, the clarity and strength that comes from it—and how it can make the difference between finding justice and losing your case.

Friedman offers concise, practical examples for sorting through the complexities and maps out a path to rooting your advocacy in your case’s moral issues. He guides you on how to explore the moral aspects involved and then apply them—from voir dire to closing—to strengthen your case. Friedman offers lessons on the following and more:

• case selection
• how to analyze your case’s moral issues
• how to earn credibility with the jury and the judge
• how to co-create a moral framework with the jury during voir dire that will apply to your case
• how to address common issues in voir dire
• how to deal with uncomfortable facts or elements in your case
• how to avoid letting opponents distract or manipulate you
• how to frame the defense’s position
• examples for soft-tissue injury cases or cases where there is no objective evidence of injury
• examples for opening statement, and how to bring moral issues clearly into focus
• examples of direct examination, and how to use it to build the plaintiff’s moral case and methodically destroy the defense’s
• examples of cross-examination, and how to use it to directly address the moral aspects of the parties’ respective positions—including how to cross-examine the IME doctor
• how to use closing to easily show the jurors the respective moral positions of the parties, focus on the power of your case, and show the jury why it is right and fair that they give the verdict to your client

In The Way of the Trial Lawyer, Friedman seeks to offer you a new, and more effective, model of advocacy.

The book is available from the publisher, Trial Guides. For reviews and ordering information on any of Rick’s books or videos, click here.

Friedman | Rubin attorney Julie Kays has filed suit on behalf of a former student at Ballard High School against Seattle Public Schools, alleging the district failed to protect her from the “reasonably foreseeable dangers” of being attacked in an unsupervised, all-gender bathroom. The lawsuit also claims the school district did nothing to support or protect the then 18-year-old senior after she reported the assault to Seattle police. Instead, a faculty member accompanied the student’s assailant, star football player Demonte Rigney, to court when the victim was seeking a sexual-assault protection order (SAPO) that led to Rigney’s removal from Ballard High School, according to Kays. “I was floored, absolutely floored that a member of the high school faculty would show up at a SAPO hearing and rally around the assailant,” said Kays, who represented the student victim at the hearing. “It was devastating for my client and her family.”

Gender-neutral bathrooms are intended to support transgender and gender nonconforming students, and research from the UCLA School of Law in 2018 found there was no link between transgender rights laws and crimes taking place in bathrooms. A 2019 study found that transgender and gender-nonbinary teens are at greater risk of sexual assault if their schools deny them access to bathrooms or locker rooms that match their gender identity. The lawsuit asserts that Ballard High’s bathroom was unsafe regardless of gender. “Unsupervised, unmonitored and poorly designed bathrooms at schools are notorious for providing a secreted location for misconduct, bullying, assault and sexual assaults,” . . . “Washington Courts have long held that an unsupervised and unmonitored bathroom presents a general field of danger for students that schools must protect against.”

In the criminal case against the student’s attacker, Rigney was originally charged with third-degree rape. But after reaching a plea agreement with prosecutors, he pled guilty in September to the lesser charge of fourth-degree assault with sexual motivation, a misdemeanor, court records show. He was convicted of the same crime in 2015 when he was a juvenile and sentenced to six months of community supervision, according to court records. Now 21, Rigney admitted he intentionally assaulted the woman “by touching her without her consent for the purposes of my sexual gratification,” says his guilty-plea statement. In October, he received a 364-day suspended sentence, two years of unsupervised probation, and was ordered to complete 24 hours of community service, according to court records. He was also ordered to participate in a boundaries and consent program and provide proof of completion, the records say.

Kays said that at Rigney’s sentencing, school administrators and a security guard all spoke on his behalf. “No one is expressing any empathy for the victim of a crime of violence that occurred on campus,” she said. “The district couldn’t have handled it any worse.”

Now a college student, Kays’ client was harassed and followed to class by Rigney’s friends following the rape, the lawsuit says. The suit alleges the school district was negligent in upholding its “special protective relationship” to students to protect them from reasonably foreseeable dangers, failing to implement design and safety measures to protect students in all-gender bathrooms, and inflicting emotional distress on the victim.

According to the lawsuit and court records in the criminal case against Rigney, he lured the woman to the bathroom on March 28, 2018, under the guise of urgently needing to talk to her. Once inside the bathroom, Rigney used his body to block the door and raped the woman; she told her parents about the attack that evening and they called Seattle police, the records say.

Police later found semen on the bathroom wall and DNA from the sample matched Rigney’s DNA, according to the lawsuit. The woman is seeking unspecified general and special damages and payment of attorney’s fees, according to the suit. Kays said her client continues to be fearful about being alone with a member of the opposite sex. “It’s really impacted her, psychologically and emotionally. Talking about it is very painful,” Kays said. “She really wants the school district to rethink this (all-gender bathrooms) and design it so they’re safe. That doesn’t seem too much to ask.”

For more information, see past news reports on this incident from Seattle Times and Kiro7.

By Rachel Luke, Friedman | Rubin, PLLP

This article was reposted from the December 2020 issue of Trial News, the monthly newspaper of the Washington State Association for Justice.
https://www.trialnewsonline.org/trialnews/december_2020

As I write this, we are just over two weeks out since a grand jury came back with the decision not to indict the police officers who killed Breonna Taylor. Like many others, I was not surprised by this decision. The message to Black women was clear—our lives do not matter. This was most powerfully expressed by Brittany Packnett Cunningham when she appeared on MSNBC.^[1]https://www.facebook.com/MsPackyetti/videos/396308054689369/. Black women’s contributions to this country have been devalued for over four hundred years. After Attorney General Daniel Cameron made his statement about the grand jury decision, I could not help but consider my role in all of this. We cannot talk about systemic racism without talking about our justice system, and systemic racism could not continue without the help of lawyers and judges. If we are being honest, our system was never meant to protect or honor Black lives as well. While I do not practice criminal law, our civil justice system is not immune to devaluing Black lives. As a Black woman and an attorney, the last year has forced me to consider how I am contributing to institutionalized racism and our justice system’s failure to address racial disparities in the law.

Our country is rife with systemic inequities that exist in health care, voting, housing, education, pay, environment, and wealth. This year has put these issues on full display as we see racial and ethnic minority groups at increased risk of getting sick and dying from COVID-19 due to lack of healthcare access, being disproportionately represented in “essential work settings,” and inequities in access to high-quality education, leading to lower paying and less stable jobs, and housing barriers.^[2] … Continue reading Many of these areas of systemic inequity are also areas where we, as plaintiffs’ attorneys, are blindly accepting that our Black clients’ damages are devalued due to these systems.

In calculating economic damages in our cases, forensic economists are reviewing life expectancies, work life, education attainment, average earnings, earnings growth, and consumption. Within each of these socioeconomic factors are embedded racial and gender disparities that are known. However, damages are calculated without any recognition of discrimination, the current racial and gender disparities, and without acknowledgment of the steps that are being taken to close the gaps in many of these areas.

For example, every April 10th, I see dozens of Equal Pay Day posts on my social media. Equal Pay Day is a symbolic date that represents how far into the new year the average (white) woman needs to work to make what her male counterpart did the year before. However, it isn’t the catch-up date for all women. Today, a white woman working full time earns 79 cents on the dollar compared to men; Asian women earn 87 cents; Native American women are at 60 cents; Black women earn 63 cents; and Latinas earn 55 cents compared to the earnings of white men.^[3] … Continue reading I am sure most of us remember the first piece of legislation that President Barack Obama signed as President was the Lilly Ledbetter Fair Pay Act, which made it easier for employees to challenge unfair pay practices. Since then, the wage gap has only marginally closed for some groups of women.^[4]https://nwlc-ciw49tixgw5lbab.stackpathdns.com/wp-content/uploads/2015/08/lilly_ledbetter_fair_pay_act_of_2009_01.07.2013.pdf. Some studies show that Black women are the most educated group in the workforce,^[5]https://nces.ed.gov/fastfacts/display.asp?id=72 but why is that not showing up in the wage data? In cases where our client or the decedent has earnings history to rely on, I am not sure how we can calculate future lost earnings and lost earning capacity without having absorbed gender and race-based gaps.

All of this pay disparity adds up. Black women are at risk of losing $941,600 in wages over a 40-year career due to the pay gap; Native American women and Latinas are at risk of losing over $1 million.^[6]https://www.cnbc.com/2020/09/18/new-census-data-reveals-no-progress-has-been-made-closing-the-gender-pay-gap.html#:∼:text=New%20data%20released%20by%20the,every%20dollar%20earned%20by%20men. Today, we see women of all races leaving the workforce as COVID-19 has left families under pressure to school children at home. In many cases, women are leaving because they are the lower wage earner of a two-parent household.^[7]https://www.nytimes.com/2020/10/03/us/jobs-women-dropping-out-workforce-wage-gap-gender.html. How will this further affect the calculation of damages for women in the future?

Calculations of future lost earnings for children reflects the most discriminatory impact because children do not have actual earnings data for forensic economists to rely on. Without earnings data, economists look to the earnings by education tables from the Bureau of Labor Statistics, which are based on historical data. Some experts will rely on the population average,^[8]https://www.bls.gov/charts/usual-weekly-earnings/usual-weekly-earnings-over-time-total-men-women.htm some rely on the specific demographics (race and gender) of the plaintiff or decedent,^[9]https://www.bls.gov/charts/usual-weekly-earnings/usual-weekly-earnings-current-quarter-by-race-and-sex.htm and some will rely on the white male’s earnings. Reliance on race, ethnicity, and/or gender-specific tables preserve systemic and structural inequities in our society. Without challenging the status quo, we are reinforcing wage gaps and workforce discrimination.

In G.M.M. v. Kimpson, the court was tasked with deciding whether statistics based on the ethnicity of a child could be relied upon to find a reduced likelihood of his obtaining higher education. 116 F.Supp.3d 126 (E.D.N.Y. 2015). The defense argued that damages should be reduced because the child’s Hispanic ethnicity meant that he was statistically unlikely to obtain a college or graduate degree. The child’s father held a baccalaureate degree, the mother had a master’s degree in Fine Arts. Both parents were employed and the family was stable. Prior to the child’s injury, the court found that there was a high probability of superior educational attainment and corresponding earnings. The court held that the use of race^[10]In McMillan v. City of New York, 253 F.R.D. 247 (E.D.N.Y. 2008), the court held that statistical evidence used to prove that a spinal cord-injured “African American” was likely to survive … Continue reading and ethnicity-based statistics to obtain a reduced damage award is unconstitutional: violating due process because it creates arbitrary and irrational state action, and equal protection because it subjects claimant to a disadvantageous estimate of damages solely on the basis of ethnic classification. Id. at 152. Judge Weinstein further explained,

Race and ethnicity are not, and should not, be a determinant of individual achievement. To support such a proposition distorts the American dream, denigrating minorities’ chances of climbing the socio-economic ladder. Using these statistics to calculate future economic loss reinforces the rigid racial and ethnic barriers that our society strives to abolish.

Id.

Outside of the handful of decisions on this subject, it appears that the status quo is to utilize tables that reduce damages based on our clients’ race, ethnicity, and gender. We cannot continue to use these metrics when there is so much disparity built in. Do we need to fully dismantle our system? Are reforms going to be sufficient? Last year, California passed S.B. 41 which expressly prohibits reductions of damages for lost future earnings in personal injury and wrongful death cases when those reductions are based on race, gender or ethnicity. Parties can no longer rely on life and wage expectancy tables that are race or gender based.^[11] … Continue reading Indeed, last year, several prominent groups including the American Association for Justice, American Civil Liberties Union, and NAACP Legal Defense and Education Fund signed onto a letter asking the National Association of Forensic Economists to discontinue use of damages tables that discriminate against women and people of color.^[12]http://justicecatalyst.org/wp-content/uploads/2019/04/2019.04.26-Letter-to-NAFE.pdf.

In July, Washington D.C. Councilmember Trayon White proposed the Stormiyah Denson-Jackson Race and Gender Damages Temporary Amendment of 2020.^[13]https://www.dccouncil.us/legislative-requests-for-july-21-2020-legislative-meeting/stormiyah-denson-jackson-race-and-gender-economic-damages-temporary-amendment-act-of-2020-signature-07062020/. The emergency legislation sought to prohibit the use of race, ethnicity, or gender to reduce estimations, measures, or calculations of lost earnings or impaired earning capacity in personal injury and wrongful death actions. The bill does not appear to have passed.

I suspect that it is not only the economic damages that are decreased due to the race or ethnicity of our clients. Introspection is warranted. We operate on contingency fee basis and in valuing cases, some attorneys may not pursue cases where the damages award will not be high enough to make litigation worthwhile. We will want to keep an eye on the courts’ application of California’s S.B. 41 and look at our own legislative agenda for fixes. Talk to your experts about what assumptions and data they are using for the damages calculations in your cases. For defendants’ experts who are relying on this data, question them on it. Racial, ethnic, and gender disparities in the United States are undeniable, but let them try to deny the inequities. Finally, we should be reviewing our own firms’ wages to determine whether the women or minorities are being paid less than their white or male counterparts for the same work. Let us not be part of the problem.

In reviewing all of this, I come back to the family of Breonna Taylor. Her family settled their wrongful death lawsuit with the city of Louisville, Kentucky for $12 million in addition to a commitment from the city to institute several reforms to policing practices.^[14]https://www.nytimes.com/2020/09/15/us/breonna-taylor-settlement-louisville.html. This is by no means a criticism of the settlement, because it is a good outcome for the family and for Louisville. However, I couldn’t help but compare it to the 2019 $20 million settlement between Justine Ruszczyk’s family and the City of Minneapolis. Ms. Ruszczyk, a white woman, was shot and killed by a Minneapolis police officer after she called 9-1-1 to report a possible assault of a woman in an alley behind her house. In that case, the police officer was a Somali-American Black man. I wonder how the damages were assessed in these seemingly similar cases with reversed racial roles. And, even if the disparate amounts are justified, you can imagine how it looks to the public at large.

You may disagree with me. However, we are perpetuating systemic racism when we rely on data that reflects the discriminatory aspects of our society. To put it another way, our white male clients and their families are in a more privileged position when calculating economic damages. I am not someone who can just ignore that, and I don’t think WSAJ and its members should either.

Rachel Luke, EAGLE member, is an attorney at Friedman Rubin PLLP in Seattle, Washington. Rachel represents clients in personal injury, product liability, and insurance bad faith cases. She is currently the Diversity Committee co-chair for WSAJ.

by Ron Park, Friedman | Rubin, PLLP

This article was reposted from the November 2020 issue of Trial News, the monthly newspaper of the Washington State Association for Justice. https://www.trialnewsonline.org/trialnews/november_2020

For trial lawyers, one of the biggest ways COVID-19 has impacted our lives is in putting trials of any kind on hold for several months. Now, trials are resuming here and across the country in different forms. Some courts have conducted trials in a completely virtual format. Some have resumed in person trials with many adjustments to protect the health of all participants. Others have opted for a hybrid approach, doing some parts of trial virtually and other parts in person.

Last month we had the opportunity to try a case in the King County courthouse in downtown Seattle. As with other trials in King County, it took a hybrid form; voir dire was done virtually on Zoom, the rest was done in person. Jurors wore masks and sat in the gallery where they could be socially distant. Unable to move counsel table, the attorneys wore masks and sat facing the jurors with our backs to the judge and the witness stand. The judge, courtroom staff, and witnesses wore masks as well. The witnesses wore clear masks so the jurors could see their faces. Two witnesses, who could not appear in person, appeared by Zoom. Screens were installed, not just for jurors, but for the attorneys at counsel table and for the witnesses on the witness stand as well, so that exhibits and demonstratives could be shown electronically without handing paper from one person to another.

It certainly was not normal, and it certainly was not comfortable. It is awkward, to say the least, to look up from your notes and always be face-to-face with a juror, constantly and unavoidably in his line of sight. Maybe it was more awkward to always have to twist and turn to address the judge for any matter. But the truth is, both during trial and reflecting on it afterward, my mind never dwelt on these peculiar procedures or adjustments. Which is to say that it never felt, and it still does not feel, as if the outcome of that trial and the effectiveness of our case came down to the masks on our faces, the distance between the jurors, or the myriad other ways in which this trial was not a “normal” trial.

My mind was occupied instead with the story of our case, how to present it to the jury, and how to incorporate or deflect the defense’s story. Should I ask this question? Maybe I should ask it a different way? Should I call this witness? Maybe in a different order? Should I explore this topic? Should I use this exhibit? Object? Not object? Should I have said this in opening? Should I have left that out of opening? Maybe we should have worked this whole thing up differently from the very beginning? The mask on my face never crossed my mind. Nor did it cross my mind after-wards, as I sat marinating in a defense verdict.

I must confess that my first opportunity to try a case in COVID conditions was also my first opportunity to try a case at all. I have no way to compare this first experience to any other, much less a “normal” trial. Perhaps if I could, the differences imposed by COVID would loom in my mind as the culprit for the result. But I do not think so. At the end of the day, trial was still trial (at least, as I had always observed it). We still had voir dire, opening statement, direct examinations, cross-examinations, and closing argument. The work remained the same. The facial accessories and novel seating arrangements did not change that.

Which is not to say that these COVID accommodations are unimportant or do not matter. It goes without saying that every attorney about to go to trial should familiarize themselves with those accommodations and adjust accordingly. I only mean to say that after you do, trial will be trial. And I hope that gives some comfort to those who have yet to step back into the courtroom.

Ron Park, EAGLE member, is an attorney at Friedman | Rubin PLLP in Seattle.

Friedman | Rubin attorney Cheryl Snow has given notice that a former student at West Seattle High School will bring suit against the School District for the actions of its girls’ basketball coach. The notice of claim alleges that the coach engaged in sexual misconduct against the student and other female basketball players.

According to attorney Snow, the sexual harassment and misconduct started in March 2017 when the student was a freshman on the West Seattle basketball team. It began with inappropriate electronic communication via Snapchat with the girl and other female players. It progressed to presents, private practices, and professions of affection and love. From March 2017 to February 2019, the coach’s sexual misconduct evolved from classic grooming behavior to illegal sexual contact at the school which included massaging, hugging, kissing, spanking and groping.

The claims alleged include sexual misconduct, harassment, and abuse by a school employee in violation of Washington law. It is further alleged that the school failed in its duty to protect its female basketball players and instead placed a heavy burden on that student to come forward to hold the coach accountable. The adversity faced by a high school student in disclosing sexual abuse by a popular coach was described by Snow as overwhelming and dreadful. She describes her client as brave and courageous for coming forward.

Snow further alleges that red flags pointing to the coach’s behavior were brought to the school’s attention by another player’s parent in March of 2018. Notwithstanding this knowledge, the school failed to adequately investigate the allegations or take corrective action. Instead, the coach was allowed frequent unsupervised and unfettered access to West Seattle High School’s weight room, gym, coach’s office, and locker rooms where he continued to hold private practices, coaching sessions, and “grade reviews.” A school district must “exercise reasonable care to protect its students,” and according to Snow, it failed in that duty.

There is evidence that the coach improperly communicated with other high school and middle school students during his tenure and there may be additional victims who have yet to come forward. Other victims may contact Friedman Rubin for a confidential interview. Witnesses who can corroborate evidence of grooming conduct or sexual contact by the coach should likewise contact the firm at (206) 501-4446 or Yo******@***********in.com.

30 Nobel Laureates* have signed a petition to bring attention to the plight of environmental lawyer, Steven Donziger, who has suffered under house-arrest for an unheard of eight-months.

Friedman Rubin is proud to be providing pro bono legal services to Steven Donziger, helping him defend against false attacks by Chevron’s and its allies, while he helps Ecuadorian inhabitants of the Amazon collect on their court judgment requiring Chevron to clean up the pollution it intentionally left in the jungle. Donziger and his Ecuadorian colleagues have faced a sustained legal assault by Chevron and its army of lawyers and operatives after winning a $9.5 Billion judgment in 2011 against the company and its predecessor, Texaco, for despoiling sections of the Amazon rain-forest with oil waste. Donziger has spent almost his entire career seeking environmental justice for his clients and the last nine years fending off Chevron’s attacks on the hard won judgment and upon him personally.

Donziger has refused to give up the fight to see justice done on behalf of the Amazonian victims. He is a tremendous advocate and champion, but he is only one man. Chevron and its powerful allies pursued various charges to discredit Donziger over the last decade. Most recently, they brought “contempt” charges against him after he refused to turn over confidential client communications on his computer and phone, something no ethical lawyer ever wants to do. For this charge of contempt, Donziger has been placed under house arrest for an unheard of eight months — far longer than the longest sentence ever imposed on a New York lawyer for any contempt. He now finds himself and his family nearly destitute from Chevron’s ongoing attack. According to one of the oil company’s hired PR firms, Chevron’s long term strategy is to “demonize Donziger.”

Please join with us and 30 Nobel Laureates to support Steven Donziger in his quest for environmental justice. His fight is our fight.

Please visit makechevroncleanup.com to demand the U.S. Department of Justice and Members of the U.S. Congress take action.

*PEACE
Eric Chivian, United States (1985)
Shirin Ebadi, Iran (2003)
Adolfo Perez Esquivel, Argentina (1980)
Leymah Gbowee, Liberia (2011)
President Jose Ramos Horta, East Timor (1996)
Tawakkol Karman, Yemen (2011)
Mairead Maguire, Northern Ireland (1976)
Rigoberta Menchu Tum, Guatemala (1992)
Kailash Satyarthi, India (2014)
Jody Williams, US (1997)

*ECONOMICS
Finn Kydland, Norway (2004)

*PHYSICS
Philip W. Anderson, US (1977)
Barry C. Barish, US (2017)
Sheldon Glashow, US (1979)
Michael Mayor, Switzerland (2019)
Frank Wilczek, US (2004)
Robert W. Wilson, US (1978)

*LITERATURE
John M. Coetzee, South Africa (2003)
Elfriede Jelinek, Austria (2004)
Alice Munro, Canada (2013)

*MEDICINE
Louis Ignarro, US (1998)
Richard Roberts, UK (1993)

*CHEMISTRY
Joachim Frank, German-American (2017)
Dudley Herschbach, US (1986)
Roald Hoffman, Polish-American (1981)
Roger D. Kornburg, US (2006)
William E. Moerner, US (2014)
John Polanyi, Hungarian-Canadian (1987)
George P. Smith, US (2018)
John E. Walker, UK (1997)

Friedman | Rubin attorney Cheryl Snow has given notice that the family of a 7 year-old girl will bring a lawsuit against the North Kitsap School District for negligence in assigning a physically aggressive boy to a school bus for special needs students where he sexually assaulted the young girl on multiple days in December, 2019.

R.B. is seven years old. She has significant cognitive impairment, physical disabilities, and is non-verbal. R.B, attends Gordon Elementary in Kingston, WA, where she is in the second grade in a Special Education Program.

In December of 2019, R.B. rode a North Kitsap School District special education bus to and from school.

On the afternoon of December 2, 2019, when the bus driver dropped R.B. off at her home where she resides with her grandmother, the bus driver told her that R.B. had taken her pants off while on the bus. The bus driver told the grandmother that he had not seen R.B. do this. The grandmother was shocked by this claim as R.B. typically requires some assistance from others to dress and undress. She expressed her concern to the bus driver and he promised her that he would report the incident to his supervisors and obtain and watch the bus’s surveillance video to see what had happened to R.B on the bus.

The next day, on the afternoon of December 3, 2019, when the bus dropped R.B. off at her home, the bus driver told the grandmother that R.B. had again undressed from the waist down. The driver described discovering R.B. naked from the waist down after a male student reported that she had taken off her clothes. He told the grandmother that when he checked on R.B., he found that her shoes, socks, leggings, and underpants were off. The bus driver claimed that he had not seen how this occurred.

R.B.’s grandmother brought her into their home and removed R.B.’s clothing. She collected R.B.’s underwear, diaper pad, and some wipes that she had used to clean R.B.’s privates and brought R.B. to the hospital for a sexual assault examination and reported the incidents to Gordon Elementary School Principal.

Kitsap County Sheriff’s Deputy Joe Hedstrom was assigned to investigate. Deputy Hedstrom obtained and reviewed surveillance video from the bus that R.B. rode on December 2nd and 3rd. Deputy Hedstrom detailed his observations of the bus video in his investigative report. According to Deputy Hedstrom, the bus video from December 2nd, showed a male student removing R.B.’s boots and pants. The male student then appears to touch R.B.’s bare genitals and crawl on top of R.B.

A separate incident on December 3rd shows the same male student crawling across the school bus’s aisle and sliding on his belly under R.B.’s seat. It is unclear what exactly the male student does to R.B. at that time. After a brief period, the male student returns to his seat. Shortly thereafter, the male student shimmies back under R.B.’s seat and crawls on top of R.B. With R.B. facing forward in her seat, and the male student on top of her facing backwards, the male student appears to repeatedly make “thrusting motions” for over a minute. The male student then climbs off of R.B. and returns to his seat with his pants down around his knees. Once back in his seat, the male student pulls his pants up and appears to be “adjusting himself”. He then leans forward and tells the bus driver that R.B. “took her pants off again.” The bus driver (eventually) checked on R.B. and observed that she had “nothing on”. R.B.’s tights and underwear were “jumbled up on the floor.”

The investigation revealed that the male student who sexually assaulted R.B. originally rode a regular (not special needs) North Kitsap School District bus. Because of his continual behavioral issues, including fighting another student, the School District removed the male student from that bus. What was the School District’s solution to this disruptive, physically aggressive boy? The School District placed him on a Special Ed. bus. Despite the obvious vulnerability of the students who rode the special education bus, the School District provided absolutely no warning about the boy’s aggressive, troublesome behavior to the parents of children who rode the bus.

The action of the North Kitsap School District of removing a male student because of a pattern of concerning behavioral issues and placing him on a bus for special needs students is particularly troubling considering the School District’s recent settlement in a lawsuit involving similar misconduct – a student, who had been removed from his bus and placed on a special education bus, sexually assaulted three special needs students on that bus.

Attorney Cheryl Snow’s Notice to the North Kitsap School District concludes that “a child with disabilities, should have been able to ride the bus to and from school in safety. The negligence of the North Kitsap School District in this case resulted in the sexual assault of a little girl, who used to enjoy riding the bus to school.”

Friedman | Rubin’s founding partner and litigation head, Rick Friedman, was honored with the Trial Lawyer of the Year award at the 2019 Southern California Trial Lawyers Conference at Pepperdine University in Malibu, California.

Friedman | Rubin, PLLP has promoted two of its associates, Sean J. Gamble and David P. Roosa, to partners effective January 1, 2019.

Sean Gamble joined Friedman | Rubin in 2009 after graduating from the University of Washington School of Law, where he earned the Juris Doctor degree. Sean handles traumatic brain injury (TBI) cases in Washington and across the country in teamwork with other attorneys. He manages the firm’s extensive library on TBI science and research. In addition to brain injury cases, Sean has works on a variety of matters including toxic exposure cases, medical malpractice, burn trauma, maritime law, aviation law, insurance bad faith disputes, and nursing home abuse or neglect. Super Lawyers named Sean a Washington Rising Star, in 2015-2016, an honor limited to no more than 2.5 percent of attorneys practicing in Washington. Sean is also an Eagle member of the Washington State Association for Justice and a member of the American Association for Justice. To contact Sean, you can email him at sg*****@***********in.com.

 

David Roosa joined Friedman | Rubin in 2012 after graduating from Seattle University School of Law. David primarily handles civil cases involving serious personal injury, traumatic brain injury (“TBI”), insurance bad faith denial of benefits, and nursing home abuse. David also occasionally tries criminal cases, and has obtained multiple defense verdicts for wrongfully accused citizens. David was the firm’s first “Moe Levine Fellow of Trial Advocacy.” The award honors one of the greatest trial lawyers of the 20th Century and is given to interns showing great promise as future trial lawyers. David is an Eagle member of the Washington State Association for Justice and a member of the American Association for Justice. To contact David, you can email him at dr****@***********in.com.

By Rachel Luke, Friedman | Rubin, PLLP

This article was reposted from the December 2018 issue of Trial News, the monthly newspaper of the Washington State Association for Justice.
https://www.trialnewsonline.org/trialnews/dec_2018

Last summer, Liz Berry wrote in the Trial News that diversity is everyone’s responsibility. The WSAJ Diversity Committee’s primary charge is to recruit diverse members to WSAJ, but we need your help. For various reasons, this year was a call to action for me personally. I wanted to come off the sidelines, so I jumped in. I joined the Equity and Inclusion committee at my daughter’s public school, I volunteered for the Loren Miller Bar Association’s Judicial Evaluation Committee, and I happily agreed to cochair the WSAJ Diversity Committee with Catherine Fleming. At the same time, I openly question the usefulness of diversity committees. I do not question the importance of diversity in our profession, but from my perspective, it appears that we are not making much headway in recruiting and retaining attorneys from diverse backgrounds.¹ Somewhere along the way, “diversity” became a buzzword with diluted meaning and purpose.

In my first months of law school in 2006, I sat in on my first diversity panel of many—where a Black attorney, an Asian attorney, and a white attorney (all women) spoke about their experiences—typically in big law firms or as in-house counsel. Still today, law schools and bar associations are having the exact same discussions about attorney recruitment and retention. It is exhausting, and I know these discussions began well before my first exposure to them in 2006. Why is it that our attorney population doesn’t match the general population in the area?² Why are historically underrepresented attorneys, particularly women, leaving the practice of law in such great numbers?³ What can we do to change things? The answers to these questions are complex and involve current and historical inequities and exclusion. In trying to determine ways to move the needle, I sought the help of someone who has seen a drastic increase in diverse attorneys during his lifetime and who could lend me some perspective.

Lem Howell and I met when we were evaluating judicial candidates, and I soon found out what a supportive and gracious mentor he is.⁴ I also learned that Lem is happy to give advice. We are still brainstorming, but together we came up with some ideas for diverse attorneys who want to do plaintiffs’ work and law firms looking to hire diverse attorneys. Both groups are necessary for us to recruit new diverse attorneys to WSAJ. Below, I summarize our discussion and ideas into ten concrete action items:

1. Employers should consider participating in the WSAJ Fellow ship Program. The WSAJ Fellows are a diverse group of second-year law students who gain invaluable experience during this summer-long program. Once the Fellowship is over, consider hiring a Fellow who participated at your firm, or recommend the candidate for other attorney openings.

2. Law firms should consider participating in the Northwest Minority Job Fair.⁵ Currently, the job fair employers are primarily comprised of defense firms, nonprofits, and public service organizations. This is an excellent opportunity to meet and interview many diverse candidates for summer internship positions and/or employment. Employer registration is in the spring. Mark your calendars!

3. Attorneys who want to do plaintiffs’ work should not reinvent the wheel. Associate yourself with a good firm. If you are in law school and cannot find a job in a firm, try to get into a public defender or prosecuting attorney’s office for trial and courtroom experience. Become a trial lawyer. This experience will make you attractive to plaintiffs’ law firms in the future.

4. Hiring law firms should recognize the student loan burden that many attorneys carry. If feasible, offer a loan forgiveness or repayment program as part of your compensation package.

5. Most minority bar associations have their own job postings.⁵ Consider reaching out to those minority bar associations so that their members are aware when you are hiring. Go to a meeting and introduce yourself. Attend a minority bar association’s banquet or consider sponsoring a table as a firm. Start building relationships with attorneys from historically underrepresented groups.

6. Law firms should make sure that they are providing mentoring to diverse attorneys. Mentoring attorneys should be assuring that the mentee attorney is receiving high-quality work assignments, has access to networking and marketing opportunities, and is receiving fair performance evaluations and fair pay. If you do not have a mentor at your firm, find one. In addition, reach out to someone you respect who does not work in your firm. These relationships are invaluable.

7. Hiring law firms might consider that defense firms have pressure from their corporate clients to hire diverse attorneys. The future business of your firm will depend on having diverse attorneys with varying perspectives and experiences. In 2012, the Washington State Bar Association reported that 31% of racially diverse active members are in solo practice.⁷ Consider associating with these attorneys or hiring them as lateral associates or partners.

8. Underrepresented attorneys should get involved. Become the go-to person in an area of law that interests you. Write articles, speak at CLEs, join all professional organizations relating to your practice. Be visible. Get yourself a seat at the table, and make it at the head of the table.

9. Hiring law firms should acknowledge and appreciate that diverse attorneys are pulling a lot of weight. In WSAJ alone, women comprised 47% of the 2017-2018 WSAJ Board, and only 23.5% of the WSAJ membership, while men comprised 53% of the Board and 69% of membership. Attorneys who self-reported as Black and African American/African descent made up 1.9% of the Board and only 1.3% of total WSAJ membership. Multiracial attorneys comprised of 9.8% of the Board and 2% of total WSAJ membership.⁸ In all, underrepresented attorneys are taking leadership roles at high rates, and this should be recognized.

10. Consider referring cases to diverse attorneys. Almost every time I am asked for a referral, I am sending that person to a diverse attorney.

I also recommend reviewing the American Bar Association’s 2018 Executive Summary on Interrupting Racial & Gender Bias in the Legal Profession.9 The executive summary may be eye-opening to some, and the Bias Interrupters Tools are a great start to best practices for any firm in hiring, assigning work, performance evaluations, and partner compensation. These tools are actionable steps that you can take in addition to some of the ideas that Lem and I brainstormed above.

The only way to achieve diversity in our profession is through equity and inclusion at all levels—from education through partnership opportunities. Let’s level the playing field and remove barriers at every avenue. Let’s create inclusive cultures at our firms. Let’s recognize achievements and create opportunities for advancement. Let’s take meaningful and purposeful steps to dismantle the systemic inequities in the law and our profession. This will take some work. I’m up for the challenge. Are you?

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Rachel Luke is an EAGLE member and associate at Friedman | Rubin in Seattle. She is co-chair of the Diversity Committee and vice chair of the Products Liability Section.

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¹ https://www.nalp.org/uploads/2017NALPReportonDiversityinUSLawFirms.pdf; see also https://www.washingtonpost.com/posteverything/wp/2015/05/27/law-is-theleast-diverse-profession-in-the-nationand-lawyers-arent-doing-enough-tochange-that/?utm_term=.a638185366f4.
² As reported in 2015, 89% of the Washington State Bar Association’s members are white, compared to 72% of the state’s population. https://www.wsba.org/docs/default-source/about-wsba/diversity/wsbaintersectionality-report-2015.pdf?sfvrsn=3f5738f1_0.
³ See 2015 WSBA Diversity Research Project Literature Review: “approximately 50% of female associates left their firms before they become partners, with many entering public service or solo practice.” https://www.wsba.org/docs/defaultsource/about-wsba/diversity/wsba-diversity-research-project-2015.pdf?sfvrsn=525738f1_0; New York City Bar’s Diversity Benchmarking report http://documents.nycbar.org/files/NYC_Bar_2015_Diversity_Benchmarking_Report.pdf;.
⁴ You can read about a part of Lem Howell’s civil rights legacy as showcased on the Washington Secretary of State’s website: https://www.sos.wa.gov/_assets/legacy/sixty-eight/gossett-and-howell-profile.pdf.
⁵ http://www.nwmjf.org/.
⁶ https://www.wsba.org/connect-serve/other-bars/minority-bar-associations.
⁷ https://www.wsba.org/docs/default-source/about-wsba/diversity/factsheetfordiversity-racialminorities.pdf?sfvrsn=9f5638f1_0.
⁸ 2018 WSAJ Diversity Report – for a copy, please contact ws**@***************ce.org.
⁹ https://www.americanbar.org/content/dam/aba/administrative/women/Updated%20Bias%20Interrupters.authcheckdam.pdf.

March 22, 2018, Tacoma, WA

After a two week trial in Federal Court in Tacoma, a jury awarded Monique Tillman $500,000 and her brother Eric Branch $50,000 against the City of Tacoma for the actions of an off-duty Tacoma police officer. Surveillance video of the 2014 incident shows a 15-year-old girl and her younger brother pedaling their bikes through the Tacoma Mall parking lot. The officer’s SUV pulls up from behind and he orders them to stop. Monique asked the officer why the pair had been stopped and the officer said that she and her brother “were causing a disturbance” — something that Tillman disputed. Tillman, who is black, asked the officer if she was being harassed because of the color of her skin. The officer then erupted and began brutalizing the teen. He tossed Tillman around like a child’s doll, slamming her into parked vehicles, forcefully shoving his hand and forearm into her chest, grabbing her by the hair and body slamming her into the pavement. The events were caught on surveillance video which subsequently went viral on YouTube:

At trial, additional cell phone video evidence from a bystander was offered into evidence. It is even more compelling.

Monique and her brother were represented at trial by Rick Friedman, Alex Ackel and Vito De La Cruz.  Friedman stated, “I am hopeful that this verdict will give some financial security to Monique and her brother and also lead to better police/minority interactions. The videos were certainly powerful evidence at trial. I believe they will be helpful as teaching tools for police officers in the future.”

Local news reports of the verdict include the following: KING5, KIRO7, Seattle Times.

 

Congratulations to Friedman Rubin partner Ken Friedman for his election to the American Board of Trial Advocates (ABOTA). This organization was founded to protect the right to jury trial, the 7th Amendment, when it was under siege during the mid-20th century. Today, ABOTA nominates attorneys who are exemplary guardians of this important civil institution.

Friedman|Rubin is proud to announce that Ken Friedman has been elected as a member in the invitation-only Damages Attorneys Round Table (DART).  Membership is limited to 35 plaintiff attorneys in Washington State. 

According to TopVerdict.com, Friedman Rubin secured the 6th highest plaintiff and cross-claimant jury verdict in the State of Washington for the 2016 year. The case making the list was Robert Harmon v. Michael Hughes, a medical malpractice case, in which Friedman Rubin achieved a $6,291,380 verdict.

The Top 50 verdicts include state and federal court cases.

A link to the verdict list is available here.

On Friday, May 19, Rick Friedman will join a panel in Miami to teach aspiring trial lawyers the skills they need to win complex and difficult trials. The panel puts together some of the most renowned trial lawyers in the country. Rick Friedman will be joined by Roger Dodd and Randi McGinn for the event.

A link to the event is available here.

Friedman|Rubin and Farber Law Group clients Zachary and Ashley Adair settled all claims in a car vs. pedestrians in a crosswalk case for $3.55 million. The Adairs were walking to see a theater performance on Stone Way North when they crossed N. 41st Street, and were hit in the crosswalk, suffering serious injuries. The driver who struck the Adairs claimed she could not see them until just before impact. Multiple witnesses, including responding police officers, noted that the western portion of the crosswalk was very dark. In addition to inadequate lighting, a required advance crosswalk warning sign was missing, and the painted stripes marking the crosswalk were substantially obliterated in the lane where the collision occurred.

(A picture of the street where the incident occurred prior to crosswalk improvements.)

Local community members had been calling for a traffic signal or some kind of improvement to the crosswalk for years. Several serious collisions had happened in the years prior to the Adairs being struck. It was only after the Adairs were injured that the City made substantial improvements to the crosswalk, including the addition of a new street light, a flashing beacon, new painted stripes, and additional signage. Superior Court judge Beth Andrus ruled as a matter of law that the Adairs, who were walking within a marked crosswalk, were not at fault for the collision. A settlement was reached shortly after the Division One Court of Appeals denied the City’s motion for discretionary review of the Summary Judgment Order. David Roosa and Ken Friedman of Friedman|Rubin litigated the case alongside co-counsel Herb Farber of Farber Law Group.

This is the second pedestrian-in-a-crosswalk case that Friedman Rubin has resolved in 2017. The other settled for $5.6 million. A link to information about that case can be found here.

From today until March 11, a group of about 25 patient safety experts – including doctors, RNs, patient advocates, and patients who have been injured themselves – will be discussing the topic of medical errors.  Peter is the author of SafePatientAdvocate.com and represents patients injured by medical negligence or defective medical devices.  You can view the discussion at https://medstro.com/groups/nejm-group-open-forum/discussions/336

February 15, 2017, Tacoma, WA

After more than four weeks in trial, the parties reached a settlement in a case involving severe injuries to a 21-year-old Bremerton woman. Regina Monzon, then 17 years old, was hit by a pickup truck while she was walking her younger brother James to school in the early morning hours of December 12, 2012.

The children were in a marked crosswalk in an active school zone at the time of the collision on Central Valley Road in unincorporated Kitsap County:

Regina was pulled under the truck and her hair became entangled in the truck’s drive shaft resulting in a degloving injury that ripped away 85% of her scalp. She also suffered sacral fractures, a left pelvic fracture, left dorsal foot degloving, multiple rib fractures, pulmonary contusions, acute contusions, and lacerations on her lower lip. Following extensive hospitalization and corrective surgeries, she continues to suffer many residual problems including brain injury and emotional and psychological issues and impairments. Her brother James Monzon witnessed his sister run over and the terrible aftermath. He suffered severe emotional distress.

The siblings were plaintiffs in a suit filed against the driver of the pickup and Kitsap County, alleging that the County failed to provide adequate lighting at the school crosswalk. Other pedestrians had been hit in this crosswalk in 2005 and 2009, also during early morning in the winter months. The driver, Sandra Bloechl, testified that she couldn’t see Regina and her brother in the crosswalk because of the lighting conditions. There was no evidence of drug or alcohol use, cell phone use, or other distractions by Ms. Bloechl.

The location of the existing street light provided sufficient light only for northbound drivers, and it silhouetted pedestrians to southbound drivers. Experts testified that the lighting conditions were unreasonably dangerous and did not provide enough light or contrast to make pedestrians sufficiently visible to southbound drivers. As a condition of the settlement, Kitsap County has agreed to put a second light at the crosswalk to improve visibility for southbound drivers.

Regina and James were represented at trial by Ken Friedman and Henry Jones, partners in Friedman|Rubin’s Bremerton, WA office.  Friedman stated, “I am glad that this resolution allows some financial security for these young people, whose lives have been forever altered by a tragic collision.  It was especially important to them that the County agree to improve the lighting at this crosswalk. We would not have settled this case without an agreement by the County to fix the lighting.”

The county’s insurer will pay $5 Million to Regina and $500,000 to James Monzon. (The County has coverage for claims up to $20 Million per accident victim). The County has 3 months from the date of settlement to add lighting that will illuminate pedestrians to southbound drivers.

The public safety issues at issue and the trial were covered by various news organizations. The most comprehensive reporting was provided by the Kitsap Daily News. Read their story here.

February 9, 2017 Olympia, WA.

The Washington Supreme Court handed down its long awaited decision in Taylor v. Intuitive Surgical, Inc., finding in favor of Friedman Rubin’s client, Josette Taylor whose husband Fred died following botched surgery at Harrison Hospital in 2008. The lawsuit, which Friedman | Rubin co-counseled with attorney Carol Johnston of Bainbridge Island, focused on the “da Vinci” surgical robot made by Intuitive Surgical, Inc. Intuitive marketed its expensive robotic system to Harrison just like it did to other hospitals around the country. But Intuitive did not explain to Harrison that the learning curve for using the robot is extremely steep, requiring at least 20 surgeries for “basic competence.” Instead, Intuitive pushed Harrison to allow its surgeons to operate without supervision after only two supervised surgeries. Harrison followed their advice and permitted one of its surgeons, Scott Bildsten, to operate on Fred Taylor as his first unsupervised surgery using the da Vinci robot. Various complications developed during the robotic prostatectomy as Bildsten struggled to make progress using the robotic controls. Eventually, the surgery had be converted to open surgery and another surgeon called in to assist in making repairs. Fred suffered terribly following the botched surgery and he died four years later. Claims against Harrison and Dr. Bildsten were eventually settled, leaving the claim against the robot maker.

The jury trial against Intuitive was widely covered by the media, including the NY Times, as it was the first of many “da Vinci” claims that were pending against the company to go to trial. The law in Washington, however, was not clear with respect to the liability of a manufacturers of medical devices. This eventually led to an erroneous trial outcome and an appeal. The Washington Supreme Court’s decision grants Josette Taylor a  new trial and clarifies the law in ways that will benefit all patients. The Court held that manufacturers of medical devices have a duty to adequately warn hospitals about their inherently dangerous products and if they fail to do so they will be subject to strict liability for any harm to patients. Warning the hospital is important because only the hospital can make sure that adequately trained doctors are allowed to perform robotic surgeries. Doctors need to be given “credentials” from hospitals before they are allowed to perform robotic surgeries.  If hospitals are not given adequate information about the learning curve, they can’t set their credentialing process in a way that protects patients. The Supreme Court’s opinion can be found here. FR acknowledges and thanks Ken Masters of the Masters Law Group for his outstanding work on the appeal.

Friedman | Rubin has obtained a $25 Million settlement in the Southwest United States involving Michigan no-fault insurance benefits on behalf of a former resident of Michigan catastrophically injured in a motor vehicle accident. (The confidentiality terms prohibit further identification of the parties or settlement terms).

Since, 1972, Michigan law has provided for unlimited medical expenses to individuals insured under Michigan’s no-fault automotive insurance law and catastrophically injured in a motor vehicle accident. Medical expenses may include attendant care for those requiring some level of assistance with daily living, whether that assistance is provided by friends, family members, nurses or attendant care providers. When injured individuals have been unreasonably denied benefits after moving to other states, the insurance company may be responsible for resulting harms or subject to punitive damages. Friedman | Rubin assists individuals in obtaining the benefits to which they are entitled and punishing insurers who do not follow the rules.

Friedman | Rubin has unique experience in litigating cases against insurance companies, obtaining some of the largest verdicts and settlements in the country. See our Verdicts and Settlements for more information. Attorneys at Friedman | Rubin are licensed in some but not all states. In states in which we are not licensed, we are specially admitted to practice under court rules and we co-counsel such cases with respected local attorneys and firms. We encourage clients and attorneys to contact Friedman | Rubin to evaluate their insurance bad faith claims.

Friedman | Rubin is proud to be a sponsor of the Brain Injury Alliance Washington (BIAWA) 10th Annual Gala, Dinner & Auction on Saturday, October 29th, 2016 at the Westin Seattle Hotel. We invite you to join us for the largest Brain Injury Fundraiser in the country to help us further their mission to increase public awareness and provide hope and support for those affected by Brain Injury through education, assistance and advocacy. RSVP by clicking here.

Seattle, WA

A King County jury awarded $6,291,379 to Friedman | Rubin’s client in a unique case involving the duty of chiropractors to refer patients who need medical treatment. The case was brought on behalf of Robert Harmon, who fell at work in January of 2012 and sought treatment at the Meridian Valley Chiropractic Clinic, owned by Dr. Michael Hughes and Dr. Rita Hughes. Despite telling the chiropractors that he hit his head when he fell and was knocked unconscious, the doctors never referred Mr. Harmon to a medical doctor for evaluation of his head injury or ordered an MRI or CT scan of his head. Over the next six months of chiropractic treatment, Mr. Harmon complained of progressing symptoms of a brain injury, such as dizziness, headaches, balance problems, and visual disturbances. The chiropractors continued to treat Mr. Harmon, primarily with a technique known as sacro-occipital technique (SOT), but did not inform Mr. Harmon that he should be evaluated by a medical doctor. The Washington Department of Labor and Industries eventually ordered an independent medical examination for Mr. Harmon, which revealed the existence of a large subdural hematoma that required two brain surgeries to remove. Mr. Harmon’s experts testified that the delay in diagnosis and treatment of the hematoma caused permanent brain damage that could have been avoided with prompt treatment after the fall. The jury awarded economic damages of $585,379, past non-economic damages of $1,000,000 and future non-economic damages of $4,706,363. FR’s trial team included Ken Friedman and Sean Gamble, supported by co-counsel Elizabeth Quick and Matt Quick of the Quick Law Firm.

Las Vegas, NV

A Clark County jury awarded $2 million to a woman run over in a road rage incident in a Target parking lot in Las Vegas.  Jean Kohl suffered a traumatic brain injury (TBI), spine and ankle injuries when she was run over by a pickup truck owned by a local business, Dakem and Associates, driven by its employee, Edward Reed.  Mr. Reed left work in the company truck and spent several hours drinking with a friend before getting into the Dakem truck and driving around the streets of Las Vegas.  Prior to running down Ms. Kohl, at least one witness called 911 to report that Mr. Reed was driving drunk. Mr. Reed and his friend decided to stop to buy more beer.  While the friend was in the store, Mr. Reed drove recklessly through the parking lot almost hitting a car being driven by Jean Kohl’s boyfriend who honked and swore at Mr. Reed.  Mr. Reed jumped from the Dakem truck ripped his shirt off and began hitting and kicking the car Ms. Kohl was in. The altercation escalated when Ms. Kohl’s boyfriend parked and got out of his car to confront Mr. Reed. Ms. Kohl attempted to get between the two men to deescalate the situation. Mr. Reed climbed behind the wheel of the Dakem pickup truck, hit the gas, and ran Ms. Kohl down. Without stopping, Mr. Reed fled the scene nearly hitting an off duty police office and his wife head on in the process.  Mr. Reed avoided apprehension by law enforcement, and hid throughout the night. Once sober, the next morning Mr. Reed went to the police and attempted to explain his conduct by claiming that he was acting in self-defense.

At trial the defense argued that Mr. Reed was justified and acting in self-defense, and that Ms. Kohl and her boyfriend were at fault and caused Ms. Kohl’s injuries because they decided to get out of their car and continue the confrontation. The jury rejected these arguments and found Mr. Reed at fault, the cause of Ms. Kohl’s injuries, and responsible for her damages. The jury found Dakem liable for the conduct of its employee, Mr. Reed. The jury awarded $522,086 in past and future medical costs and $1.5 million in past and future pain and suffering.  Additionally, the jury found that punitive damages were warranted.  Just before the start of the punitive damages phase of the trial, the case settled for a confidential amount.

FR’s trial team, Roger Davidheiser and Ken Friedman, were supported by co-counsel Gabriel Martinez of Las Vegas.