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Reed v. Hammond

United States District Court, W.D. Washington, Tacoma

January 13, 2020

CHARLES V. REED, Plaintiff,
STEVEN HAMMOND, LARA STRICK, ROB WEBER, SARA SMITH, and JOHN DOES No. 1-6, in their individual capacities, Defendants.


          Benjamin H. Settle United States District Judge.

         This 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, [1] and Defendants' motion to certify a question to the Washington Supreme Court, Dkt. 139.


         On 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).[2] 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.


         The 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. Fed.R.Civ.P. 72(b)(3).

         In 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.

         A. State Law Medical Negligence

         RCW 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.

         Waples 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) (“McDevitt”) “further 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.

         Defendants 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.

         Defendants 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.

         When 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).

         In 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 ...

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