Facts: Petitioner Jerry Smith filed suit against respondent Orthopedics International, Ltd. in the Superior Court for King County following his wife Brenda’s death while being treated for complications that had arisen in the wake of a spinal surgery performed by Orthopedics International. After a trial in which it was revealed that Orthopedics International’s attorneys had, prior to his testimony, provided Brenda Smith’s former physician with information relating to the testimony that would be offered by Jerry Smith’s expert witness, the jury found for Orthopedics International. Smith subsequently moved for a new trial at which the testimony of his wife’s former physician would be excluded on grounds that it had been prejudiced by the improper contact initiated by Orthopedics International’s attorneys. The trial court rejected Smith’s motion. Upon appeal, the Washington Court of Appeals affirmed the trial court’s ruling, holding that the documents that Orthopedics International’s attorneys had provided to Brenda Smith’s former physician were public in nature and had not prejudiced his testimony in any way. Smith appealed this decision to the Supreme Court of Washington.

Question(s): Does the rule established by the Court in Loudoun v. Mhyre barring ex parte contacts between defense counsel and plaintiffs’ non-party physicians apply to the contact between Orthopedics International’s attorneys and Brenda Smith’s former physician?

If so, was Smith nonetheless required to demonstrate that prejudice had resulted from the contact in order to receive a new trial?

Conclusion: Justice Alexander’s opinion for the Court concluded that although the rule established in Loudoun is broad and extends to all ex parte communications between defense counsel and plaintiffs’ non-party physicians, Smith was not entitled to a new trial insofar as he had failed to demonstrate that prejudice had resulted from the contact between Orthopedics International’s attorneys and Brenda Smith’s former physician given that the testimony offered by Brenda Smith’s former physician subsequent to being contacted was nearly identical to the statement he had made in his earlier deposition. Thus, the Court affirmed the Washington Court of Appeals.

Docket No. 83038-0 (from Court of Appeals Division I Case No. 61226-3)

Petitioner: Jerry D. Smith

(Counsel: Thomas Richard Golden and Christopher Lee Otorowski)

Respondent: Orthopedics International, Ltd.

(Counsel: John Coleman Graffe, Jr., Mary H. Spillane, and Daniel W. Fern)

Briefs:

Argument: Thursday, June 24, 2010 10:00am

[Source: TVW, http://tvw.org]

Decided: Thursday, December 16th, 2010

Prevailing Party: Orthopedics International, Ltd. (Respondent)

Vote: 5-4

Citation: Pending

Court: Madsen1 Court (2010-2011)

Madsen

Johnson
(Minority)

Alexander
(Majority)

Sanders

Chambers

Owens

Fairhurst
(Concurs)

Johnson

Stephens