United States District Court, W.D. Washington, Tacoma
CHARLES V. REED, Plaintiff,
STEVEN HAMMOND, LARA STRICK, ROB WEBER, SARA SMITH, and JOHN DOES No. 1-6, in their individual capacities, Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING
DEFENDANTS' MOTION TO CERTIFY
Benjamin H. Settle United States District Judge.
matter comes before the Court on the Report and
Recommendation (“R&R”) of the Honorable David
W. Christel, United States Magistrate Judge, Dkt. 137, and
Defendants Steven Hammond (“Hammond”), Sara
Kariko (formerly Smith) (“Smith”), Rob Weber
(“Weber”), and Lara Strick's
(“Strick”) (“Defendants”) objections
to the R&R, Dkt. 138, Plaintiff Charles V. Reed's
(“Reed”) response to Defendants' objections,
Dkt. 140,  and Defendants' motion to certify a
question to the Washington Supreme Court, Dkt. 139.
August 29, 2019, Judge Christel recommended that the Court
deny Defendants' partial motion for judgment on the
pleadings without prejudice. Dkt. 137 at 1 (citing Dkt.
132). On September 12, 2019, Defendants filed
objections, Dkt. 138, and a motion to certify a question to
the Washington Supreme Court, Dkt. 139. On September 25,
2019, Reed responded to Defendants' objections. Dkt. 140.
On September 30, 2019, Reed responded to Defendants'
motion to certify. Dkt. 141. On October 4, 2019, Defendants
replied to their motion to certify. Dkt. 142.
district judge must determine de novo any part of the
magistrate judge's disposition that has been properly
objected to. The district judge may accept, reject, or modify
the recommended disposition; receive further evidence; or
return the matter to the magistrate judge with instructions.
their objections, Defendants argue Judge Christel erred in
failing to dismiss Reed's state law claims as a matter of
law and erred in finding Defendants were not entitled to
qualified immunity from Reed's claims as alleged as a
matter of clearly established law. Dkt. 138. In their motion
for certification, Defendants argue that if the Court doubts
their position on Reed's state law claims, the Court
should certify a question to the Washington Supreme Court to
decide the issue. Dkt. 139.
State Law Medical Negligence
7.70.150 (“the certificate of merit statute”)
requires a plaintiff in a medical malpractice case to file a
certificate of merit from a medical expert at the time of
filing suit. Putman v. Wenatchee Valley Med. Ctr.
P.S., 166 Wn.2d 974, 985 (2009)
(“Putman”) held that the certificate of
merit statute was unconstitutional “because it violates
the right of access to courts and conflicts with the
judiciary's inherent power to set court
procedures.” The State Supreme Court explained that
“[o]btaining the evidence necessary to obtain a
certificate of merit may not be possible prior to
discovery” and concluded that “[r]equiring
plaintiffs to submit evidence supporting their claims prior
to the discovery process violates the plaintiffs' right
of access to the courts.” Id. at 979.
v. Yi, 169 Wn.2d 152, 155 (2010) (en banc) held that a
related provision of Washington law which required plaintiffs
to give defendants in medical malpractice cases 90 days
notice of their intent to file suit was unconstitutional
because it violates the separation of powers. The Washington
Supreme Court explained that the notice provision dealt with
procedural, not substantive rights and impermissibly added an
additional step for commencing a suit beyond those required
by the Washington Superior Court Civil Rules. Id. at
160 (citing CR 3(a)). McDevitt v. Harborview Med.
Ctr., 179 Wn.2d 59, 62- 63, 74-75 (2013) (en banc)
explain[ed]” the holding in Waples, finding
Waples was applicable to suits against private
parties but inapplicable to suits against state defendants.
The Washington Supreme Court concluded that “the 90 day
presuit notice requirement is constitutional as applied
against the State on the grounds that the legislature may
establish conditions precedent, including presuit notice
requirements” pursuant to its authority in art. II,
§ 26 of the Washington Constitution. McDevitt,
179 Wn.2d at 63. The Washington Supreme Court reasoned that
Waples was properly characterized as an as-applied,
rather than facial, decision on the unconstitutionality of
the notice requirement because it involved only private
parties and thus did not address art. II, § 26 or the
State's waiver of sovereign immunity, and because a
severability clause, RCW 43.72.911, provided that “[i]f
any provision of this act or its application to any person or
circumstance is held invalid, the remainder of the act or the
application of the provision to other persons or
circumstances is not affected.” Id. at 74.
argue that the reasoning used in McDevitt to limit
Waples to an “as applied” holding
pertaining only to private parties also “narrows the
holding in Putman to an ‘as applied'
holding pertaining only to private parties, not State
defendants.” Dkt. 138 at 2. Judge Christel disagreed
with this line of argument, reasoning that unlike the
certificate of merit requirement in Putman which did
burden access to the courts, the Washington Supreme Court
found the presuit notice requirement in McDevitt was
constitutional as applied against State defendants in part
because it “does not constitute a substantial burden on
the ability of government tort victims to obtain
relief.” Dkt. 137 at 5 (citing McDevitt, 179
Wn.2d at 68). Judge Christel concluded that “nothing in
McDevitt indicates that the Washington Supreme Court
intended to apply its holding to the certificate of merit
statute.” Dkt. 137 at 5.
move for certification, arguing that while the Court
“could predict that Washington courts would apply the
reasoning in McDevitt to this case, ” if the
Court has any doubts about this conclusion, certification is
appropriate. Dkt. 139 at 2-3. Reed responds that while he
does not have a strong objection to the motion to certify,
the case should not be stayed during certification as it is
unlikely that the Washington Supreme Court would apply any
decision retroactively as against Reed and thus might not
answer the constitutional question at all. Dkt. 141 at 1, 3.
there is no controlling Washington Supreme Court precedent on
issues of state law, the Court is bound to apply the law as
it believes the Washington Supreme Court would under the
circumstances. See Erie R.R. Co. v. Tompkins, 304
U.S. 64, 77-80 (1938). “If there be no decision by [the
state's highest] court then federal authorities must
apply what they find to be the state law after giving
‘proper regard' to relevant rulings of other courts
of the State.” Commissioner v. Estate of
Bosch, 387 U.S. 456, 465 (1967).
McDevitt, the Washington Supreme Court declined to
apply its holding retroactively, explaining that (1) its
decision was not clearly foreshadowed, (2) retroactive
application of the decision would impede the
legislature's policy objective regarding presuit
notification requirements, and (3) retroactive application
would create a ...