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Drewett v. Rainier School

March 21, 1991

VICTORIA L. DREWETT, AS GUARDIAN AD LITEM, ET AL, PETITIONERS,
v.
RAINIER SCHOOL, ET AL, RESPONDENTS



Alexander, J. Petrich, A.c.j., and Morgan, J., concur.

Author: Alexander

Victoria L. Drewett, personally and as guardian and guardian ad litem for her child, Julia Drewett, obtained discretionary review of an order of the Pierce County Superior Court prohibiting Dr. Paul Hageman from testifying as an expert witness for the plaintiffs. She contends that the order should be reversed because the trial court erred in concluding that provisions of the Executive Conflict of Interest Act, RCW 42.18.170(1)(a), required it to exclude Hageman as an expert witness. We reverse.

The facts are not in dispute. Victoria L. Drewett is the mother of and the duly appointed guardian and guardian ad litem for Julia Drewett, a disabled person. Victoria Drewett commenced an action for damages against the Rainier School, the State of Washington and Timothy Brown on behalf of Julia, herself and her husband, Russell. She complained that Julia had been sexually assaulted by staff persons at the Rainier School, a state residential school for handicapped children. Specifically, it was alleged, as follows: The staff at Rainier School had observed bruises and other markings on Julia in October 1984, a time when Julia was in the care and custody of that school. The school superintendent, Timothy Brown, in an effort to discover the cause of Julia's condition, "caused various investigatory, medical, quasi-medical and intrusive procedures to be performed on Julia" over a course of a few days. These procedures "were done without lawful authority, authorization or consent of Julia or her guardian," in violation of various of Julia's rights under the provisions of the United States and Washington Constitutions, and constituted assault, battery, rape and other torts, including the tort of outrage. The defendants, relying on the Executive Conflict of Interest

Act, RCW 42.18, moved to exclude the testimony of an expert witness for the plaintiffs, Dr. Paul Hageman.

According to affidavits presented to the trial court, Dr. Hageman was a psychiatrist who, at the time of the alleged incident leading to this suit, was employed full time at the Rainier School. He carried on a private practice in his spare time, and Julia had been one of his private patients before and after her admission to Rainier School. Hageman was not present at the Rainier School at the time of the alleged incident leading to the plaintiffs' complaint, but he did attend a staff meeting, in his capacity as acting medical director of Rainier School, approximately 3 days after the incident is alleged to have occurred. A summary of the school's investigation of the incident was discussed at that meeting, as well as plans for dealing with Julia in the future.*fn1 Hageman said that he saw Julia two times later that day or the next day, at the request of the school's superintendent. He said that she appeared agitated at these meetings and did not respond to his presence. Hageman indicated that he also conferred at least three times with Dr. Ruvalcaba, the Medical Director of Rainier School, and met once with the administrator of the school's developmentally disabled program.

The trial court concluded after a hearing that Hageman should not be permitted to testify as an expert witness, and it entered an order to that effect.

Only one issue is presented. Did the trial court err in concluding that Dr. Hageman should not be permitted to testify as an expert witness for the plaintiff? ER 104(a) provides that preliminary questions regarding the "qualification of a person to be a witness, the existence of privilege, or the admissibility of evidence" are to be determined by the trial court. The defendants, citing a case having to do

with the qualifications of expert witnesses, argue that the trial court's rulings on preliminary questions may not be overturned absent a showing of an abuse of discretion. McKee v. American Home Prods. Corp., 113 Wash. 2d 701, 782 P.2d 1045 (1989). They correctly point out that an abuse occurs only where discretion is exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wash. 2d 12, 482 P.2d 775 (1971).

[1] While a trial court does have discretion to determine whether an expert is qualified, this is not a case where the trial court is being called upon to make such a determination. There is no suggestion that Hageman is unqualified as an expert or that his testimony otherwise lacks probative value. The State asserts, rather, that this otherwise competent witness is disqualified from testifying because RCW 42.18.180 creates a privilege "of sorts." Whether or not a statute creates a testimonial privilege is a determination of law, and a trial court has no discretion to find a privilege where none exists.

The statute invoked by the State is RCW 42.18.170(1)(a), a part of the Executive Conflict of Interest Act. It provides in pertinent part:

Except in the course of his official duties or incident thereto, no state employee shall assist another person, whether or not for compensation, in ...


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