A Busy 2018 Legislative Session for the WDTL
Although the 2018 Legislative session was short—lasting for only 60 days—it proved to be a demanding one for the WDTL. The WDTL actively tracked dozens of issues, but four measures were immediately identified as top priorities:
-HB 1128, which would authorize counties to increase the dollar amount from $50,000 to $100,000 for matters subject to mandatory arbitration;
-SB 6015, which would establish new damages in certain wrongful death claims and overturn two state Supreme Court decisions regarding claims associated with the death of adult children;
-SB 6027, which would create a new privilege regarding the discovery of medical records in claims under Washington’s Law Against Discrimination that involve non-economic damages;
-HB 2506, which would authorize new exemplary (punitive) damages in cases involving “willful or wanton misconduct”.
The WDTL was actively involved in defending against the passage of all four of these measures. At the end of the session, two of the measures were enacted (HB 1128 and SB 6027) and two were defeated (SB 6015 and HB 2506).
HB 1128–Authorizing Counties to Increase the Dollar Amount for Matters Subject to Arbitration from $50,000 to $100,000
For four years the Washington State Association for Justice has pushed legislative proposals to increase the dollar amount for matters that are subject to mandatory arbitration. The WDTL, together with business groups, insurers, and others successfully defended against the passage of these proposals in 2015, 2016, and 2017. The proposal was enacted in 2018 following a special election in the fall of 2017 that resulted in a change of control in the Washington State Senate, which proved to be consequential for HB 1128.
WDTL leaders consistently testified in opposition to these proposals. WDTL testimony emphasized the following concerns:
-Defendants tend to do better in front of real juries than with arbitrators. A significant percentage of arbitrators’ practices emphasize the representation of plaintiffs when they are not serving as arbitrators. Concern was raised that some arbitrators may come to these matters with a “point of view” that is reflected in their decisions. Additionally, arbitrators tend to have a “split the difference” mentality in looking at claims, while matters in court frequently end with no payout;
-Limited discovery hampers defendants’ review of medical records, and restricts the examination of expert witnesses. Cases in which $100,000 is demanded are likely to be more complicated, and defendants deserve to develop a full defense, including broader discovery than is currently allowed under MAR;
-At higher dollar levels, more arbitration decisions are likely to be appealed trial de novo, which will increase pressure on the courts to handle these matters.
-The fiscal note prepared by the Office of the Attorney General noted that only 26% of civil matters where the A.G. is involved result in no payout to the plaintiff, while 60% of cases in Superior Court result in no payout to plaintiffs. The fiscal note also asserted that an increased claim value would likely result in more trials de novo.
Despite the opposition to the measure, HB 1128 was approved by the House and Senate and signed by the Governor. It becomes effective for matters filed on and after September 1, 2018. Importantly, a number of Counties have declined to authorize the higher dollar amount for civil arbitration. For these counties, the current $50,000 dollar limit remains in place.
SB 6015–Wrongful Death Claims
Plaintiff lawyers sought the introduction of SB 6015 in the wake of the “Ride the Ducks” accident in Seattle, which resulted in the deaths of several international students.
The WDTL actively testified in opposition to the measure. The bill proposed substantial changes to current law, including expanded damages. The measure provided for so-called “hedonic damages”—allowing for the estate of the decedent itself to recover “loss of enjoyment of human life” damages.
The measure would have also overturned two Supreme Court cases involving wrongful death claims for the death of an adult child.
Joining the WDTL in opposing the measure were representatives from the Washington State Hospital Association, Washington State Medical Association, Washington Association of Counties, Association of Washington Cities, insurers, and the Washington Liability Reform Coalition.
Central to these efforts was the development of an amendment to the measure that would be difficult for plaintiff lawyers to defend against, but impossible for them to accept. An amendment was ultimately developed providing that liability in these cases is several only, and not joint, if the decedent’s parent or sibling is not dependent on the decedent for support. The amendment was offered on the Senate floor, but narrowly failed. The bill was passed to the House where Rep. Paul Graves offered the amendment on the House floor. SB 6015 was not brought to a vote on the House floor when it became apparent that there was sufficient support for the Graves amendment for it to be approved. Plaintiff lawyers declined to move the underlying bill forward when it became clear that they could not defend against the adoption of the amendment. Thus, the bill failed at the end of the 2018 session.
SB 6027–Establishing a New Privilege Regarding the Discovery of Medical Records in Claims Under the Washington Law Against Discrimination where Non-economic Damages are Involved
The WDTL joined with the Association of Washington Business, insurers, and the Liability Reform Coalition in opposing SB 6027, which would establish a new privilege prohibiting the discovery of medical records in claims under the Washington Law Against Discrimination where non-economic damages are asserted.
The WDTL noted that the bill would bar the discovery of medical information that may be relevant. Defendants never get access to information, and the Court never gets an opportunity to determine admissibility. Despite these concerns, SB 6027 was approved by the Senate and House, and became effective 90 days following the close of the 2018 legislative session.
SB 2506–Authorizing New Exemplary (Punitive) Damages in Cases Involving “Willful or Wanton Misconduct”
The WDTL testified against SB 2506, arguing that the measure would establish sweeping new exemplary damages for matters in which “wanton or willful” misconduct is alleged. The bill would have excluded state and local governments from the new damages. The bill was considered at a hearing before the House Judiciary Committee on January 17, 2018, but it was not brought to a vote before the cutoff for approval.