Wednesday, October 26, 2016

What is Going on with the Washington State Supreme Court?

The Washington Supremes used to be a place you could count on for rational decisions.  Apparently things have changed.  First they come down with Deggs v. Asbestos Corp.  This case involved the estate of a man who died of asbestosis suing for wrongful death.  Washington has an odd wrongful death statute.  The survivors don't get to sue; the decedent's personal representative sues, not on behalf of the estate, but rather on behalf of the survivors.  By tautology, the survivors' wrongful death action does not accrue until there is a death.  The PR brought the action within three years of the death and should have been OK.  Not according to five members of the Washington Supremes.  They ruled that the clock started running when the decedent learned of his injuries.  This wholly conflates an assault or battery or negligence action the decedent could have brought while he was alive with a wrongful death action that of necessity could not accrue until decedent's death.  According to these five's ruling, the statute of limitations on the survivors' right of action ran before their right of action even accrued.  There is a great deal of pseudo-research and pseudo-reasoning in the majority's opinion, but the bottom line is it was written with a shovel.

But wait, there's more.  Last week they decided Newman v. Highland Sch. Dist. No. 203, with another five-member majority (albeit a different line-up) deciding to reject Burger's concurrence in Upjohn Co. v. United States, 449 U.S. 383 (1981), which effectively every other court has followed, and hold that attorneys' interviews of a client's former employees concerning actions taken during the course of their employment are not protected by the attorney-client privilege.  There is honestly no basis for ruling this way.  I invite you to read the majority's tortuous "reasoning" that it applies to justify its result and then read the laser-scalpel dissection of that "reasoning" performed by the dissent.

Two justices joined in both dissents: Justice Wiggins, who wrote the Newman dissent, and Chief Justice Madsen.  I hope they don't retire soon.

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