Check back here weekly for new developments in the law--the Washington Supreme Court and the Washington Court of Appeals publish new decisions every week, and this is meant to be a helpful summary of these cases for areas relevant to areas of practice for The Shawver Law Firm

For further information, check here:  www.courts.wa.gov/opinions/

Newest Cases:

 Washington State Supreme Court:

Anderson v. Akzo

www.courts.wa.gov/opinions/pdf/822646.opn.pdf

The opinion in this case is nuanced and multifaceted.  I will address one aspect of the opinion which has wide application in personal injury cases: the evidentiary standard used for the acceptance of scientific evidence.  Here, the parents of a child born with significant birth defects (neuronal migration defect, congenital hemiplegia, mirocephalus, and a multicystic dyplastic kidney, along with delays in motor, communication, cognitive, and adaptive behavior) sued the plaintiff mother's employer in tort.  The theory of the plaintiffs was that the mother, who worked at the defendant's company producing toxic organic solvents, had breathed in these substances while performing her job.  Further, the toxic substances had crossed the placental barrier and migrated into the fetus's brain.

The trial court ruled that the jury could not hear plaintiff's experts' theories, holding that the specific theory of causation was not "generally accepted" by the relevant scientific community.  The trial court applied what is known as the Frye evidence standard, which holds that novel scientific evidence is only admissible to the extent that is is "generally accepted" by the relevant scientific community.  Justice Tom Chambers, who wrote the majority opinion, held the trial court's ruling was incorrect. 

As I said, this was a nuanced opinion. Without answering the question once and for all of whether this was the correct standard for civil cases (as opposed to another standard known as the Daubert, or the "reliability" evidentiary standard), the Court held that since the plaintiffs' evidence wasn't based on novel scientific evidence, the Frye test was not implicated, and the trial court should have allowed the evidence to come before the jury. Moreover, because the data and theories underlying the plaintiffs' expert's theories was generally accepted, it didn't matter that the conclusions drawn by the expert regarding causation did not enjoy such wide acceptance.

In the end, the case was remanded on this issue to allow the plaintiffs to present their theory to the jury.  However, it is hard to say what this may portend for the future.  Will the Frye or Daubert test carry the day in civil cases?  At least one thing is clear: if Frye is what is ultimately used, it is clear that the Court may be receptive to theories which are on the edges of science, so long as they are derived from and based upon theories and methodologies which have wide acceptance. 

Older Cases: 

Dowler v. Clover Park:

This case involved a group pf parents who brought suit against the Clover Park School District.  Their claims alleged instances of physical, verbal, and psychological abuse, and unlawful discrimination.  The parents' case was dismissed for failure to first make a claim under a federal statutory scheme called the Individuals with Disabilities Education Act (IDEA).  The Court held that because the parents and children failed to "exhaust" their administrative remedies under the IDEA, their claim was barred, or banned. The "exhaustion" doctrine holds that before a civil suit can be filed, a claim has to first be made in the applicable administrative law framework.  Here, since there had been no such administrative claim made prior to filing the lawsuit, the trial court held that all claims were barred.

The Supreme Court reversed this ruling.  The Court reviewed the purpose and intent of the IDEA, and also closely analyzed the claims made by the parents and children.  It held that the IDEA did not bar state law tort and unlawful discrimination claims, and therefore the parents and children did not have to exhaust their administrative remedies before filing suit. 

Criminal Law

Washington State Supreme Court

State v. Thorgerson

This is a case which highlights, again, the nearly impossible burden a criminal defendant has to satisfy to establish prosecutorial misconduct.  The defendant in this case, who was the accuser's stepfather, was convicted of four counts of child molestation.    The defendant denied guilt, and claimed that his accuser was fabricating the story of abuse in order to avoid her stepfather's strict rules in the home and to spend more time with her boyfriend.  Of note, there was no physical corroboration of the allegations.  Therefore, the testimony of the child accuser was, essentially, the only direct evidence of guilt.

The prosecutor told the jury that the accuser's testimony was corroborated by other witnesses, but that the jury wouldn't be able to hear those witnesses "because the rules don't allow it."  Also, during closing argument, the prosecutor suggested the defense was trying to deceive the jury by calling the defense theory "sleight of hand."

The majority of the Supreme Court held that though reference to the evidence rules was not exemplary, it was not misconduct.  Referring to the defense attorney's conduct as a shell game, though, was misconduct.  It was planned, ill-intentioned, and unprofessional.

However, even though the defense had proved that the prosecutor's plan for closing argument was unprofessional misconduct, it was deemed "harmless" and did not warrant reversal.  This was not a surprising result, given that the majority relied extensively on a prior case involving prosecutorial misconduct,  State v. Russell (1994). 

In the Russell case, a key defense witness had told the police that he heard a cat scream at the time of the crime.  The  prosecutor for the state (who is still employed as a senior prosecutor for high-profile cases) implied that the reason the witness could identify a cat scream was because he had viciously killed a cat:

 Q: Do you recall you also could identify a cat scream sound from an occasion on which you killed a cat and was dangling it over a bridge?

[DEFENSE COUNSEL]: Objection, move to strike.

THE COURT: Sustained. That will be stricken, the jury is directed to disregard it.

During the appeal process, the State had been given ample opportunity to explain to the Supreme Court (and the Court of Appeals) why it had implied to the jury that this witness was a viscous sadist.  The state never offered any evidence to back up its implication.  The obvious conclusion: the state never had any evidence to support its attack on the witness, and that the accusation was meant to improperly destroy the witness's credibility. 

The moral of the story here in 2011: if you think you can rely on the appellate courts helping you out when you have established flagrant prosecutorial misconduct, remember the Russell decision from 1994.  And you better have some additional arguments up your sleeve.

Washington Court of Appeals:

State v. Gannt 

This case will be an extremely important case in future search-and-seizure challenges.  A police car drove by a van parked in a residential neighborhood in Selah, Washington.  He saw a man outside of the vehicle, walking toward a residence.  The officer turned his vehicle around, and drove up behind the van, which was now parked in front of another house.  He activated his overhead lights.  After he walked up to the vehicle, he observed additional suspicious evidence inside the van, and felt the driver of the vehicle was acting suspicious.

The Court of Appeals for Division III held that the driver and occupants of the van were seized when the officer activated his overheard lights.  In this case, there had not been a good reason to suspect criminal or suspicious activity prior to the activation of the lights, so the seizure was illegal.  All evidence suppressed, conviction reversed.