October 20, 2015 - Renewed Motion For Default (Highlighted) PDF

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Honorable Laura Inveen

Hearing Date: October 30, 2015
Without Oral Argument
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IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON

IN AND FOR THE COUNTY OF KING
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SUSAN CAMICIA,
Plaintiff,
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v.
HOWARD S. WRIGHT CONSTRUCTION
COMPANY, a Washington corporation; and
CITY OF MERCER ISLAND, a municipal
corporation,
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Defendants.
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NO. 07-2-29545-3 SEA

PLAINTIFFS RENEWED MOTION
FOR A DEFAULT JUDGMENT,
DISMISSAL OF DEFENDANTS FAULT
APPORTIONMENT DEFENSE, AND
MONETARY SANCTIONS
REQUEST FOR RELIEF
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Plaintiff Susan Camicia respectfully renews her motion for a default judgment. Alternatively,
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plaintiff requests the lesser sanction of striking defendant City of Mercer Islands fault apportionment
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defense and instructing the jury that Mercer Island and its lawyers wilfully, in violation of law and the
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rules of legal ethics, provided information about a pretrial settlement for the purpose of unfairly
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prejudicing plaintiffs legal rights and the administration of justice in order to gain an unfair advantage
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in this lawsuit. The jury also should be instructed to disregard whether any pretrial settlement occurred.
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This renewed motion is based on Mercer Islands extrajudicial statements for publication in the Mercer
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Island Reporter on the eve of trial about plaintiffs confidential settlement with former defendant Howard
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S. Wright Construction Co. and about Mercer Islands unsuccessful mediation with plaintiff. Those
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statements, which any potential or actual juror may discover in print, online through a simple internet
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search, or through social media, have irreparably prejudiced plaintiffs guarantee of a fair trial. Ex. 1 to
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THE
BUDLONG
PLAINTIFFS RENEWED MOTION FOR A DEFAULT
JUDGMENT, DISMISSAL OF FAULT APPORTIONMENT
DEFENSE AND MONETARY SANCTIONS - 1
Renewed Motion for Default.wpd
LAW FIRM
100 Second Avenue S, #200
Edmonds, WA 98020
T 425.673.1944
F 425.673.1884
Budlong Dec.10/14/15 Mercer Island Reporter article.1 Plaintiff also seeks terms on this renewed
motion for default.2
II.
GROUNDS FOR RELIEF
On October 13, 2015, in willful violation of the Courts May 20, 2015 Order on Plaintiffs
Motions in Limine and the Rules of Professional Conduct governing trial publicity, defendant City of
Mercer Island provided to the Mercer Island Reporter and made available online and through social
media information that: (1) plaintiff Susan Camicia received a confidential amount in an out-of-court
settlement from former defendant Howard S. Wright Construction, Co.; and (2) Mercer Island and
plaintiff voluntarily met with a mediator in efforts to settle the case [on October 13, 2015], but the
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mediation was unsuccessful. Ex. 1 to Budlong Dec. Mercer Islands disclosure to the Reporter further
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implies that HSW settled because it was at fault for having signage and fencing intruding on the trail
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at the site of the accident. Id.
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Plaintiff and her counsel did not communicate with or provide any of this information to the
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Mercer Island Reporter, whose only attributed sources are Mercer Islands City Attorney Kari Sand and
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City Manager Noel Treat. Budlong Dec.
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Mercer Islands extrajudicial statements to the Mercer Island Reporter are designed to influence
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potential or actual jurors in favor of Mercer Islands liability and fault apportionment defenses on the eve
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of the November 2, 2015 trial by publicly disseminating evidence that the Court has excluded in limine.
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If Mercer Islands attorneys mentioned settlement and former defendant information to jurors at trial, the
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Court could rectify the prejudice by declaring a mistrial, imposing terms, and impaneling a new jury.
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But the Court cannot ensure that potential or actual jurors will not be exposed to the inadmissible
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Link to the Mercer Island Reporter Article - http://www.mi-reporter.com/news/332467192.html
Plaintiff is moving separately for monetary sanctions to recover the additional expert witness fees
and attorney fees she incurred as a result of defendant Mercer Islands and its defense counsels discovery
violations.
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THE
BUDLONG
LAW FIRM
Edmonds, WA 98020
T 425.673.1944
F 425.673.1884
settlement and linked fault apportionment information online or in print, or ensure that they have not seen
it or will not be influenced by it during the trial. Consequently, the Court cannot guarantee that plaintiff
will receive a fair trial that is not tainted by the illicit evidence Mercer Island provided for publication.
Plaintiff has suffered irreparable prejudice because focus groups show no collateral evidence is more
prejudicial to a plaintiffs case than evidence that a plaintiff settled with and dismissed a former
defendant. See Boyd and Budlong Decs.
Plaintiff requests the harsher remedy of a default judgment, and alternatively the lesser remedy
of striking the fault apportionment defense with a full explanatory jury instruction like the one in the
Request for Relief, because Mercer Island wilfully exposed potential and actual jurors to gratuitous,
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extremely prejudicial information about plaintiffs confidential settlement with HSW settlement in
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conjunction with evidence of HSWs fault as an empty chair, as well as information about Mercer
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Islands own settlement negotiations. The dissemination of this information violates the Courts May
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20, 2015 Order in Limine and RPC 3.6 which governs trial publicity. Mercer Island knew that disclosure
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of plaintiffs settlement with HSW, HSWs status as a former defendant, and information about its own
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settlement negotiations were excluded in limine. Mercer Islands City Attorney knew it was an ethical
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violation to disclose that information for publication. The only reasonable conclusion is that Mercer
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Island disseminated this information to influence the jury, to detract from the impartiality of the
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proceedings, and to irreparably prejudice plaintiffs right to a fair trial.
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As documented below, Mercer Islands officials and attorneys have a long, consistent history of
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willful, recalcitrant, unapologetic discovery and litigation abuse in this case and in other recent lawsuits.
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Mercer Islands repertoire of litigation tactics in this and other recent cases includes willful discovery
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evasion, willful suppression and destruction of relevant evidence, resistance to and noncompliance with
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discovery orders and orders in limine, extrajudicial attacks on opposing parties to obtain collateral
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advantages in the litigation, urging the Court to decide legal and evidentiary issues on improper fiscal-
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consequence grounds, and now putting prejudicial information that has been excluded in limine in the
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THE
BUDLONG
LAW FIRM
Edmonds, WA 98020
T 425.673.1944
F 425.673.1884
media and online to invite potential or actual jurors to decide this lawsuit based on illicit information,
rather than on the law and evidence. Although courts repeatedly have condemned Mercer Islands tactics
and actions in written orders and have imposed lesser sanctions than a default judgement, the lesser
sanctions have only encouraged Mercer Island to escalate its well-practiced, calculated violations of
discovery, ethical and trial publicity rules and court orders. This shows that lesser sanctions than default
have not and will not accomplish the purposes of sanctions orders [which] are to deter, to punish, to
compensate and to educate and insure that the wrongdoer does not profit from the wrong. WSPIE
v. Fisons, 122 Wn.2d 299, 355-56, 858 P.2d 1054 (1993).
So far, no court has punished Mercer Islands officials and lawyers sufficiently to deter their
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pattern of misconduct or to educate them to change their institutional dogma that the ends of winning
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justify the means of cheating. Instead, the lesser sanctions have been counterproductive because they
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have been followed by greater misconduct. While courts understandably are hesitant to impose the
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harshest sanction of default against a city, it is justified when public officials and their lawyers
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repeatedly defy the rule of law and undermine the integrity of the judicial process. A default judgment
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is necessary to deter, punish and educate when a defendants history shows lesser sanctions are
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ineffective and almost meaningless in comparison to the fruits of continued misconduct. There is no
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evidence or reason to believe that any lesser sanction will accomplish the policies of Fisons or insure that
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jurors will not access and use illicit information to decide plaintiffs case. In the September 14 sanctions
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order, this Court found that defense counsel shows no indication of a plan to change his conduct in the
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future and that it is highly likely this issue will come up in the future. Findings of Fact 30, 31.
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Indeed, within just a month the Courts prediction has already come true.
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The publication of the confidential HSW settlement unfairly punishes plaintiff and gratuitously
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prejudices the administration of justice with further delay, waste of more court time on a trial that already
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has been continued for months because of defense misconduct, more expense, increased risks of juror
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bias, mistrial if one or more jurors is exposed to the information before or during the 5 week trial, and
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THE
BUDLONG
LAW FIRM
Edmonds, WA 98020
T 425.673.1944
F 425.673.1884
increased risk of appeal and retrial. A default judgment is the only effective, discretionary remedy
against Mercer Islands pattern of intentional discovery evasion and litigation abuse. If the Court
imposes a lesser sanction and makes a necessary explanatory instruction identifying Mercer Islands
violations of the Courts order and the RPCs, it will not eliminate the prejudice to plaintiff caused by
its improper disclosure of settlement evidence, which the jury still can hold against plaintiff. And an
explanatory instruction detailing the defendants violations and the prejudice they have caused is an
obvious source of an appeal. A default judgment promotes finality and provides the only insurance that
the wrongdoer does not profit from the wrong, in other words that cheaters will not prosper.
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III.
Declaration of John Budlong with supporting exhibits; Declaration of Jeffrey Boyd.
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EVIDENCE RELIED ON
IV.
A.
FACTUAL BACKGROUND
The Order in Limine Excluding Evidence of Plaintiffs Lawsuit against and

Settlement with Howard S. Wright and Evidence of Settlement Negotiations.
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In May 2015, plaintiff moved in limine for an Order directing that the parties, their witnesses
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and attorneys not directly or indirectly disclose, mention, or attempt to convey to the jury in any manner
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any of the following matters listed below:
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The Claims, Motions, Rulings and Dismissals In this Lawsuit.
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Defendant City of Mercer Island should be precluded from stating or implying to the jury (a) that
Howard S. Wright, Inc. was ever a party to this lawsuit; or (b) that plaintiff voluntarily dismissed
Howard S. Wright, Inc. These circumstances should be excluded under ER 401-403 because they
have no legal relevance.
Moreover, any conceivable relevance would be outweighed by the danger of unfair prejudice,
confusion of the issues, and misleading the jury. In Diaz v. State, 175 Wn.2d. 457, 285 P.3d 873
(2012), the Supreme Court held the settlement and dismissal of claims against a co-defendant in
a medical malpractice lawsuit are inadmissible. See also Grigsby v. City of Seattle, 12 Wn. App.
453, 458, 529 P. 2d 1167 (1975) where the Court of Appeals held it was error for the trial court
to reveal to the jury that the plaintiff settled a claim against a former co-defendant. Thus,
plaintiffs voluntary dismissal of Howard S. Wright, Inc. is inadmissible in the trial of plaintiffs
claims against City of Mercer Island.
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...[T]he jury should not be given or shown pleadings or captions disclosing the names of persons
or entities who have settled or are no longer parties to the action. ER 401-403. Diaz and Grigsby,
supra.
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THE
BUDLONG
LAW FIRM
Edmonds, WA 98020
T 425.673.1944
F 425.673.1884
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Ex. 2 to Budlong Dec.Plaintiffs Motion in Limine pp. 2-3.

In response, defendant Mercer Island agreed that plaintiffs claims against, settlement with and
dismissal of HSW and its own settlement negotiations with plaintiff should not be mentioned:
Settlement and Offers of Settlement
Subject to its discussions of Howard S. Wright in Section 1 and the usual rules governing
whether a door has been opened, the City agrees that the claim against them and settlement
should not be mentioned.
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Ex. 3 to Budlong Dec.Defendants Response to Plaintiffs Motion in Limine p. 3.
On May 20, 2015, the Court granted plaintiffs motions in limine regarding the claims, motions,
rulings and dismissals and settlements and offers of settlement and removed defendant Howard S.
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Wright Construction, Co. from the case caption to prevent jurors from being improperly influenced by
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this irrelevant, highly prejudicial former defendant and confidential settlement information.
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Mercer Islands Dissemination of Plaintiffs Confidential Settlement with HSW, the

Parties Settlement Negotiations, and Fault Apportionment Information to the
Mercer Island Reporter for Publication.
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On October 13, 2015, the parties held a mediation with the Hon. Paris Kallas to attempt to settle
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this case. Mercer Island City Attorney Kari Sand, defense counsel Andrew Cooley and Washington
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Cities Insurance Authority Claims Manager Reed Hardesty attended the mediation on behalf of the
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defendant. Ex. 4 to Budlong Dec.10/13/15 Judicial Dispute Resolution attendance sheet. The day after
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the unsuccessful mediation, the Mercer Island Reporter published a front page article based on its
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interview with City Attorney Sand and City Manager Noel Treat. The article was disseminated to the
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residents of Mercer Island. It is permanently accessible to potential and actual jurors in print and online.
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It contains the following statements and information which are relevant to this motion:
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B.
Islanders may be reminded of a recent case involving the city withholding public records from
former City Attorney Londi Lindell in 2011, but this case involves violation of discovery rules,
not the Public Records Act, Sand said.3
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On June 27, 2011, the United States District Court in Seattle sanctioned Mercer Island $90,560
in penalties for deliberately violating Washingtons Public Records Act by not disclosing exempt records
sought by former City Attorney and Deputy City Manager Londi Lindell in her gender discrimination,
THE
BUDLONG
LAW FIRM
Edmonds, WA 98020
T 425.673.1944
F 425.673.1884
Every record the city has is arguably a public record, but this is not a public records case per se,
Sand said.
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Camicia sought personal injury damages from Sound Transit subcontractor Howard S. Wright
Construction and the city of Mercer Island after her accident.
She received a confidential amount in an out-of-court settlement with the construction company,
which had signage and fencing intruding on the trail at the site of the accident, and since then,
has continued to seek damages from the city. ...
Camicias case is set for a jury trial beginning Monday, Nov. 2. ...
The city could not comment further on the lawsuit.
Because the case is active and still pending, we are not at liberty to comment further on the
substance of the litigation, Sand said.
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On Tuesday, Oct. 13, the parties voluntarily met with a mediator in efforts to settle the case,
Sand said, but the mediation was unsuccessful.
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Ex. 1 to Budlong Dec.10/14/15 MI Reporter article. (Emphasis supplied)
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The article attributes the following statements to Mercer Island City Manager Noel Treat:
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We are committed to the transparency of the Citys work and to providing records in litigation,
City Manager Noel Treat said in a statement. ...
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The safety of bicyclists and all trail users is of utmost importance to the City. Fortunately, no
other I-90 trail incidents of this scale have occurred since this one, and we hope to maintain that
record of safety, Treat said.
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Id.
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Mercer Island provided this information to the MI Reporter immediately after the unsuccessful
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October 13 mediation, knowing it would be published and knowing it could influence potential or actual
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jurors to decide this lawsuit against plaintiff Camicia on grounds that HSW was the only at-fault
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defendant, that Camicia already has been compensated by the HSW settlement, or that Camicias
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continued efforts to obtain damages from Mercer Island are improper. City Attorney Sand knew it was
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sexual harassment and retaliatory termination lawsuit against the City. See Ex. 5 to Budlong
Dec.Lindell v. City of Mercer Island, 833 F.Supp.2d 1276 (2011). The federal court also sanctioned
Mercer Island for $94,000 in attorney fees. See Ex. 6 to Budlong Dec.9/13/11 Letter/Councilman
Grausz addresses outcome of Lindell lawsuit.
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THE
BUDLONG
LAW FIRM
Edmonds, WA 98020
T 425.673.1944
F 425.673.1884
wrong to make extrajudicial statements for publication that a lawyer knows or reasonably should know
will be disseminated by means of public communication and will have a substantial likelihood of
materially prejudicing an adjudicative proceeding in the matter, RPC 3.6(a): Because the case is
active and still pending, we are not at liberty to comment further on the substance of the litigation, Sand
said. (Emphasis supplied). Mercer Islands lawyers also knew this Court had excluded in limine
information about HSWs role as a former defendant, HSWs settlement with plaintiff, and Mercer
Islands own settlement negotiations.
Mercer Islands comments on the substance of the litigation imply that HSW was at fault
because it had signage and fencing intruding on the trail at the site of the accident. Neither this
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information nor the information that plaintiff had received a confidential amount in an out-of-court
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settlement with the construction company...and since then, has continued to seek damages from the city
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[and that] the parties voluntarily met with a mediator in efforts to settle the case had anything to do with
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this Courts September 14, 2015 Order on Motion for Sanctions/Admitting Evidence of Other Accidents.
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No reasonable lawyer would believe [the City Attorneys extrajudicial statements] [were] required to
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protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer
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or the lawyer's client. RPC 3.6(c).
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The signage mentioned in the article is the same signage shown in the MIPDs accident scene
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photos that Mercer Islands lawyer deliberately withheld from plaintiff without explanation for the first
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18 months of this lawsuit. This Court found that withholding of evidence deprived Plaintiff of the
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opportunity to refresh her recollection of existing conditions before her depositions and deprived her
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expert witnesses of that evidence before their depositions. See 9/14/15 Sanctions Order, Findings of
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Fact 18-20. And it noted the disclosure and existence of [the photos showing the signage] would be
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helpful to the Citys case in shifting liability, to the extent it existed, to the co-defendant Howard S.
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Wright Construction. Id., Finding of Fact 21. Defendants extrajudicial statements in the Mercer Island
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Reporter are trial publicity designed to advance its liability, fault apportionment and empty chair defenses
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THE
BUDLONG
LAW FIRM
Edmonds, WA 98020
T 425.673.1944
F 425.673.1884
based on HSWs signage and fencing by linking them to HSWs settlement. Since the City Attorney was
aware of RPC 3.6 restrictions on trial publicity, the only credible explanation is that the HSW settlement
and fault apportionment information was provided to obtain an unfair litigation advantage.
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B.
Mercer Island Officials and Attorneys History of Discovery and Litigation Abuse.
1.
Lindell v. City of Mercer Island
In Lindell, the plaintiff filed a Public Records Act request under 42.56.550 for records relating
to the termination of her employment in April 2008 as Mercer Islands Deputy City Manager. Lindells
PRA request sought records of: (1) Lindells employment termination (the Segle matter which gave
rise to plaintiffs discrimination, harassment and retaliation claims and the Reed investigation of the
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Segle matter); (2) the termination of another City employee (Stepson); and (3) Lindells Outlook
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calendar. Mercer Island admittedly had no grounds to withhold the non-exempt Stepson records or
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Lindells Outlook calendar, but it nevertheless wrongfully withheld those records from Ms. Lindell
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with no explanation for two and a half years from 2008 to 2010. 833 F.Supp.2d at 1287.
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In response to Lindells PRA request, Mercer Island produced a document log that did not
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identify the Segle matter documents or the Citys written waiver of the attorney-client privilege for the
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Reed investigation. 833 F.Supp.2d at 1282-83. Mercer Island only identified the Segle-Reed documents
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after Lindell filed her lawsuit, sent discovery requests for many of the documents in her PRA requests,
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and filed a motion to compel. Id. at 1283.
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After an in camera review, the federal court ordered the City to produce the [Segle-Reed]
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documents immediately. Id. at 1282-83. Although Mercer Islands Mayor, City Manager and a City
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Council member all testified that the Segle-Reed documents were not prepared in anticipation of
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litigation, and the federal court had previously ruled that the work product doctrine did not apply, Mercer
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Island continued to assert that it did apply. It also insisted the attorney-client privilege shielded these
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records, despite its written waiver of the attorney-client privilege, and the courts ruling that it did not
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apply. Id. at 1281-83. Mercer Island defied the federal courts order to produce the Segle-Reed
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THE
BUDLONG
LAW FIRM
Edmonds, WA 98020
T 425.673.1944
F 425.673.1884
documents until after the court threatened to hold the City in contempt of court.... Id. at 1283. The
City also threatened to file a bar complaint against Lindell if she discussed the facts surrounding the Reed
investigation, and it accused her in court filings of being deceitful and dishonest, disclosing client
confidences and ma[de] a number of attacks on her character while it was withholding the Reed
investigation records, which made it impossible for her to defend her reputation and good character.
Id. at 1288.
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Judge Robart found that Mercer Islands failure to disclose documents relating to the Segle
matter and the Reed investigation ... caused [Lindell] personal economic loss and concluded:
Finally, the court finds that the decision to withhold the documents relating to the Segle Matter,
in the face of the Waiver Email, constituted a negligent, reckless, wanton, or intentional
noncompliance with the PRA by the City.
The City threatened to file bar complaints against Ms. Lindell, and even filed counter-claims
against her in this case, for disclosing what it considered to be attorney-client confidences. ...
The Citys attempt to use these facts as a mitigating factor, without acknowledging its own
culpability, is troubling to the court and belies the Citys credibility.
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833 F.Supp.2d 1288, 1289 fn. 4.
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In response to the decision, Judge Robarts imposition of $184,000 in monetary sanctions, and
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the Citys insurers payment of a $1,000,000 settlement to Lindell, Mercer Island Councilman (now
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Mercer Island Deputy Mayor) Grausz published a letter to the editor in the Mercer Island Reporter which
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continued to blame the judge and minimize the Citys culpability for deliberately suppressing
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discoverable records without explanation and for baselessly asserting they were privileged:
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There is no way to sugarcoat this situation and I will not insult your intelligence by trying to do
so. In my almost 12 years on the City Council, this is clearly the low point.
Furthermore, the Judge in this case had made decisions that, both as a Council member and as
a lawyer I found hard to understand as did the insurance company and its lawyers. ...
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Second, as to the Public Records Act judgment, the bulk of the $90,000 judgment relates to a set
of documents that the City had claimed were subject to the attorney-client privilege. From a
litigation standpoint, the City and its insurer acted properly in asserting this privilege and, in my
opinion, had a strong legal basis for doing so. From the publics right to know standpoint and
with the benefit of 20/20 hindsight, it was the wrong decision.
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THE
BUDLONG
LAW FIRM
Edmonds, WA 98020
T 425.673.1944
F 425.673.1884
I apologize to the people of Mercer Island for what has happened.... I will do what I can to make
amends for this.
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Ex. 6 to Budlong Dec. 9/13/11 Councilman Grausz letter.
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2.
Chenoweth v. City of Mercer Island, King Cy. Case No. 14-2-08755-1SEA
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In Chenoweth, another bicycle accident case against Mercer Island, Mr. Cooley informed
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Edmonds Police Chief Al Compaan that Edmonds police officer Steve Harbinson was the plaintiffs
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accident reconstruction expert against Mercer Island. See Ex.7 to Budlong Dec.-9-8-15 Order on
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Plaintiffs Motion for Contempt, Etc. This action triggered an Edmonds Police Department internal
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investigation of Officer Harbinson, which left his status as an expert witness uncertain. Order, p. 4. In
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denying the plaintiffs motion for contempt, Judge Roberts wrote in her order:
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There is no doubt in the courts mind that Mr. Cooley carefully orchestrated this predicament.
He elicited testimony from Mr. Harbinson that would put the City of Edmonds at risk, confirmed
that Mr. Harbinson had done off-duty work that might conflict with his employers requirements,
and then brought the information to Mr. Harbinsons boss. His claim that he contacted [Mercer
Island Police] Chief Holmes and Chief Compaan only as a means to learn the identity of the
Edmonds Director of Public Works strains credulity. His purpose was to be certain that the Chief
Compaans took a close look at Mr. Harbinsons conduct. That purpose may be fair. But the
convoluted explanation given in Mr. Cooleys declaration borders on the misleading, and give
this court grave concern.
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The court cannot find Mr. Cooley in contempt. ... Mr. Cooley has engaged in hard ball
litigation tactics to a fairly extreme degree.
Ex. 7 to Budlong Dec., pp. 4-5.
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V.
ARGUMENT
A.
Mercer Islands Publication of Plaintiffs Confidential Settlement with Howard S.

Wright Violated the Courts Order In Limine and the Rules of Professional
Conduct.
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1.
The May 20, 2015 Order on Plaintiffs Motions in Limine.
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By providing settlement and former defendant information for publication in the Mercer Island
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Reporter and online, defendant Mercer Island wilfully violated its own agreement and the Courts Order
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on Plaintiffs Motions in Limine, which directs that the parties, their witnesses and attorneys not directly
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or indirectly disclose, mention, or attempt to convey to the jury in any manner plaintiffs claims against,
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THE
BUDLONG
LAW FIRM
Edmonds, WA 98020
T 425.673.1944
F 425.673.1884
settlement with and dismissal of HSW and its own settlement negotiations with plaintiff. A willful
violation of a court order or discovery rule that causes prejudice is grounds to enter a default judgment.
CR 37(b); Magaa v. Hyundai Motor Am., 167 Wn.2d 570, 584, 220 P.2d 191 (2009).
2.
RPC 3.6 and its pertinent Comments and Guidelines for Application set forth the ethical rules
The Trial Publicity Rules in RPC 3.6.
for lawyers regarding trial publicity:
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RULE 3.6. TRIAL PUBLICITY

(a) A lawyer who is participating or has participated in the investigation or litigation of a matter
shall not make an extrajudicial statement that the lawyer knows or reasonably should know will
be disseminated by means of public communication and will have a substantial likelihood of
materially prejudicing an adjudicative proceeding in the matter.
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(b) [List of inapplicable exceptions to paragraph (a)]
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(c) Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer
would believe is required to protect a client from the substantial undue prejudicial effect of recent
publicity not initiated by the lawyer or the lawyer's client. A statement made pursuant to this
paragraph shall be limited to such information as is necessary to mitigate the recent adverse
publicity.
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(d) No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a)
shall make a statement prohibited by paragraph (a).
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Comment 5 to RPC 3.6 provides:

There are, on the other hand, certain subjects that are more likely than not to have a material
prejudicial effect on a proceeding, particularly when they refer to a civil matter triable to a jury,
a criminal matter, or any other proceeding that could result in incarceration. These subjects relate
to:
(5) information that the lawyer knows or reasonably should know is likely to be inadmissible as
evidence in a trial and that would, if disclosed, create a substantial risk of prejudicing an
impartial trial;...
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The Appendix Guidelines for Applying Rule of Professional Conduct 3.6 provides:
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II.
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The kind of statement referred to in Rule 3.6 which may potentially prejudice civil matters triable
to a jury is a statement designed to influence the jury or to detract from the impartiality of the
proceedings.
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City Attorney Sand and defense counsel Cooley attended the October 13 mediation and are
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participating in the litigation of [this] matter. RPC 3.6 (a). Attorney Sand made extrajudicial
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Civil
THE
BUDLONG
LAW FIRM
Edmonds, WA 98020
T 425.673.1944
F 425.673.1884
statements that she knew would be disseminated by means of public communication in the Mercer Island
Reporter and on the internet. In response to plaintiffs motions in limine, Mercer Island acknowledged
and agreed that the claim against [Howard S. Wright] and settlement should not be mentioned. Ex.
4. Its lawyers knew the May 20, 2015 Order in Limine prohibited the dissemination of this information
precisely because it will have a substantial likelihood of materially prejudicing an adjudicative
proceeding in the matter. RPC 3.6 (a). And they knew from the May 20 Order in Limine, ER 408 and
case law that the settlement information they disseminated is likely to be inadmissible as evidence in
a trial and that would, if disclosed, create a substantial risk of prejudicing an impartial trial. RPC 3.6,
Comment 5.
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The disclosure of HSWs co-defendant role, confidential settlement and fault apportionment, and
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Mercer Islands October 13, 2015 mediation was not required to protect a client from the substantial
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undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client, nor was it
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limited to such information as is necessary to mitigate the recent adverse publicity from the Courts
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September 14, 2015 sanctions order, which was limited to Mercer Islands discovery violations and did
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not involve HSWs settlement or status as a former defendant. RPC 3.6 (c). Instead, City Attorney
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Sands statements to the Mercer Island Reporter were designed to influence the jury or to detract from
17
the impartiality of the proceedings, Appendix, supra, by making highly sensitive, excluded settlement
18
information available to potential or actual jurors. These communications were designed to circumvent
19
and undermine the Court s May 20 Order in Limine, and they have irreparably prejudiced plaintiffs
20
right to a fair trial.
21
22
B.
Mercer Islands Publication of Plaintiffs Confidential Settlement with Howard S.

Wright Has Caused Irreparable Prejudice.
23
It is almost impossible to overstate the prejudice Mercer Islands intentional disclosure of Howard
24
S. Wrights confidential settlement has inflicted on plaintiffs case. The settlement would inform jurors
25
who become exposed to the MI Reporter article that HSW, a major construction company, already has
26
THE
BUDLONG
LAW FIRM
Edmonds, WA 98020
T 425.673.1944
F 425.673.1884
compensated plaintiff for her injuries and damages, which include claims for her lifetime costs of care.
It invites these jurors to assume that plaintiff would never have agreed to a settlement with a major
construction company that did not fully compensate her. Jurors who discover the article will not know
how much the settlement was because the article says it is confidential. That puts them in the same boat
as Mercer Islandboth want to know, but neither does know, how much the settlement is. It raises
suspicions that plaintiff and HSW made a secret deal to let HSW out of the lawsuit and unfairly leave
Mercer Island holding the bag. It aligns those potential and actual jurors who are told they cant access
information about the trial online but do so anyway with Mercer Island, who is prevented from accessing
the amount of the settlement because it is confidential.
10
The confidentiality of the settlement destroys plaintiffs and her lawyers credibility with any
11
jurors who access the settlement information because they are asking those jurors to award damages
12
without first being forthcoming about the fact, terms and amount of the HSW settlement. Plaintiff could
13
not disclose the settlement amount if she wished because she and HSW bargained for and are
14
contractually bound by reciprocal confidentiality. The confidential settlement invites jurors to suspect
15
that plaintiff continues to seek a double recovery out of unfairness or greed. See Jeffrey Boyd Dec.
16
Mercer Island intentionally fueled this suspicion by telling the Mercer Island Reporter: She received
17
a confidential amount in an out-of-court settlement with the construction company... and since then, has
18
continued to seek damages from the city.
19
Ms. Sand, Mr. Cooley and Mr. Treat are the only people the article mentions who knew about
20
the HSW settlement or that it was confidential. They had the motive to disclose the settlement to
21
prejudice plaintiff at trial and acted on it as soon as their own mediation failed.
22
The settlement information also invites jurors to conclude plaintiff is committing lawsuit abuse
23
against the judicial system and the jury by proceeding against Mercer Island after settling with HSW.
24
This is especially unfair because violation of ER 408 and the Order in Limine was intended and
25
perpetrated by Mercer Island. The City Attorney also provided information for the article which suggests
26
THE
BUDLONG
LAW FIRM
Edmonds, WA 98020
T 425.673.1944
F 425.673.1884
plaintiff rebuffed the olive branch Mercer Island extended at the mediation and instead is forcing it into
a trial.
By publishing that HSW is a former defendant who paid plaintiff a confidential settlement,
Mercer Island significantly increased its chances of a defense verdict or a reduced verdict to prevent any
double recovery. The settlement information also validates and supports Mercer Islands efforts to
eliminate or diminish a plaintiffs recovery through fault apportionment. The Mercer Island Reporter
article says Susan Camicia settled with the construction company, which had signage and fencing
intruding on the trail at the site of the accident. By suggesting that HSW settled because of its intruding
construction fence and signage, the article invites jurors to wonder why HSW would have paid a
10
confidential settlement if it was not at fault. And why would plaintiff agree to a settlement with HSW
11
that did not fully compensate her?
12
The settlement information signals to jurors that HSW acknowledged its fault because otherwise
13
it would not have paid a settlement. See Boyd Dec. It supports Mercer Islands defense that it was not
14
at fault, or its share of fault is substantially less than HSWs fault, which both plaintiff and HSW have
15
acknowledged by their settlement. It also signals that by settling, plaintiff recognizes HSW was at fault
16
and would be a hypocrite to attempt to minimize its fault at trial. This inadmissible settlement
17
information undermines plaintiffs ability to contest the factual and legal basis of the fault apportionment
18
defense.
19
It will be impossible to keep the jurors from discovering the information about this lawsuit which
20
is in print, online and on social media. The trial publicity issue will have to be covered in voir dire. The
21
Court cannot ensure jurors have not seen or will not access the extremely prejudicial settlement
22
information it excluded in limine. Nor can the Court guarantee that this information will not influence
23
a jurors decisions or the jury verdict. If an empaneled juror admitted accessing the Mercer Island
24
Reporter article, it would be grounds for a mistrial. If a juror is exposed to the article and bases a defense
25
verdict on the settlement information without admitting it, plaintiff covertly will be denied a fair trial.
26
THE
BUDLONG
LAW FIRM
Edmonds, WA 98020
T 425.673.1944
F 425.673.1884
The illicit settlement information Mercer Island provided to the MI Reporter forces plaintiff, who
has gone through 8 years of this litigation with catastrophic injuries, to make the Hobsons choice of
telling the jury about HSWs settlement in order not to lose credibility with jurors who may have
discovered it, or not mentioning it in the likely vain hope that no juror will find out about it. Both
choices are unfair and prejudicial. The first choice deprives plaintiff of her legal right to be protected
by ER 408 and the May 20 Order in limine excluding evidence of the settlement. Even if that choice
is made, it would not allay jurors suspicions and confusion over the amount of the settlement, which
remains confidential. The second choice of remaining silent creates the risk that settlement will be
discovered but not disclosed by one or more jurors during the trial, creating undisclosed prejudice, or that
10
it will be discovered and disclosed, causing delay, mistrial and retrial. A default judgment is the only
11
final, effective, discretionary remedy against these Hobson choices.
12
Plaintiff has no responsibility for injecting settlement information into the public domain and
13
potentially into her trial. She had to settle with HSW to protect her future because she is aging, her
14
health is declining, she will not be able to work full time much longer, and part time work is not a viable
15
option for a legal assistant in a litigation law firm. She followed the policy of the law that favors
16
settlement. Susan Camicia relied on these legal protections when she settled with HSW because she
17
knew pretrial settlements are inadmissible under ER 408 and case law.
18
19
20
21
22
Experienced jury trial consultant Jeffrey Boyd has testified to the prejudicial effect of revealing
partial settlements with former defendants to jurors:
Many potential jurors carry into the courtroom the concept, which they have learned from
countless movies, television shows, and novels, that the issue they are to decide is to be whether
one defendant - the one who appears in the trial in which they are participating - is guilty or not
guilty. In that mindset, introduction of the fact that the plaintiff reached a settlement with some
entity other than the defendant can have a profound effect on jurors' evaluation of the liability of
the (remaining) defendant.
23
24
25
26
In my experience, that effect is almost always to the detriment of the plaintiff. Jurors equate
settlement with an admission of fault, and if someone has settled/admitted fault, they often feel
misled as to what is "really" going on, or feel that the plaintiff is doing something unfair to
continue an action against a second entity after settling with a now-unnamed party. Their
thinking is "If plaintiff settled with "X," this has already been decided; I don't feel like plaintiff
should try to get more money out of this defendant."
THE
BUDLONG
LAW FIRM
Edmonds, WA 98020
T 425.673.1944
F 425.673.1884
10-19-15 Boyd Declaration.
The undersigned has conducted more than 25 interactive focus groups in multi-defendant
lawsuits. In every such lawsuit where there had been a pretrial settlement with a significant actor who
was involved in the accident, the focus groups have questioned why that actor was not being sued. In
every case where the focus groups were informed that the absent actor had settled with the plaintiff, they
declined to impose liability against the remaining defendant(s) for one or more of the above reasons.
When the focus group was not informed of the pretrial settlement, its members generally did not have
a negative attitude toward the plaintiff for bringing suit against the remaining defendant. Budlong Dec.
C.
10
Lesser Sanctions than Default Have Not and Will Not Adequately Punish or Deter
Mercer Island from Further Litigation Abuse or Insure that It Will Not Profit from
Its Wrong.
11
Since the lesser sanctions and warnings were imposed in Lindell, Chenoweth and Camicia,
12
Mercer Island and its attorneys have escalated their violations of the discovery and legal ethics rules to
13
cause greater prejudice to opposing parties and taint the administration of justice. Three judges have
14
expressed concern over the lack of credibility, refusal to admit culpability, and lack of remorse that
15
Mercer Islands officials and lawyers have repeatedly shown in recent lawsuits.
16
In Lindell, Judge Robart said Mercer Islands failure to acknowledg[e] its own culpability is
17
troubling to the court and belies the Citys credibility. In Chenoweth, Judge Roberts said Mr. Cooleys
18
declaration borders on the misleading, and give[s] this court grave concern. In its September 14
19
sanctions order, this Court described Mercer Islands and Mr. Cooleys discovery evasion as willful,
20
false, misleading, evasive, unapologetic, defensive and found that throughout the course of
21
discovery and litigation surrounding it in this proceeding, counsel has made comments that are
22
misleading [citing examples]. Findings of Fact 28-31. This Court also found that defense counsel
23
shows no indication of a plan to change his conduct in the future and that [g]iven the fact that defense
24
counsels law practice focuses primarily on municipalities, it is highly likely this issue will come up in
25
the future. Findings of Fact 30, 31. The predicted future misconduct and abuses already have recurred
26
THE
BUDLONG
LAW FIRM
Edmonds, WA 98020
T 425.673.1944
F 425.673.1884
within a month of the September 14 sanctions order, this time through disclosure of vastly more
prejudicial settlement evidence in deliberate violation of the Courts May 20, 2015 Order in limine.
The evidence is overwhelming that lesser sanctions than default have not and will not accomplish
the purposes of sanctions orders [which] are to deter, to punish, to compensate and to educate and to
insure that the wrongdoer does not profit from the wrong. WSPIE v. Fisons, 122 Wn.2d 299, 355-56,
858 P.2d 1054 (1993). After the federal court in Lindell imposed $184,000 in sanctions and expressed
concern about Mercer Islands failure to recognize its culpability and its unjustified extrajudicial threats
against Lindell, the City responded that the judge had made decisions that the City, its defense lawyers
and insurance company lawyers found hard to understand. Ex. 6 to Budlong Dec.9/13/11 Councilman
10
Grauszs letter. Even though it had waived the attorney-client privilege in writing, Mercer Island
11
continued to insist that the City and its insurer acted properly in asserting this [attorney-client]
12
privilege... and ... had a strong legal basis for doing so. Id.
13
Mercer Island Reporter for what happened in Lindell and promised to make amends. Yet for the 8 years
14
between 2007 and 2015, Mercer Island continued wilfully and falsely to deny the existence of, suppress
15
and destroy discoverable evidence, to mischaracterize plaintiffs discovery requests and assert an invalid
16
(HIPAA) privilege for bike accidents after the Court ruled the privilege did not apply, and to defy/violate
17
the discovery rules and a court order in Susan Camicias contemporaneous case. Mercer Island also has
18
waged improper collateral attacks on the plaintiff in this case (through unethical trial publicity), just as
19
it did in Lindell and Chenoweth.
Councilman Grausz apologized in the
20
In Lindell and Chenoweth, Mercer Islands officials and lawyers engaged in hard ball litigation
21
tactics to a fairly extreme degree by threatening Lindell with a baseless bar complaint and by triggering
22
an investigation of Officer Harbinson in order to obtain collateral litigation advantages. In Camicia,
23
Mercer Island and its lawyers have escalated their extrajudicial misconduct by providing settlement and
24
fault apportionment information to the Mercer Island Reporter to undermine plaintiffs claims with
25
excluded evidence. After its defense counsels Salvini code arguments to decide legal and evidentiary
26
issues based on Mercer Islands financial interests were rebuffed, Mercer Island invited jurors in the MI
THE
BUDLONG
LAW FIRM
Edmonds, WA 98020
T 425.673.1944
F 425.673.1884
Reporter article to decide the outcome of this lawsuit based on inadmissible settlement evidence Mercer
Island and its lawyers appear to have concluded that any sanction short of default is acceptable so long
as it diminishes the risk or amount of an adverse judgment.
The courts lesser sanctions, expressions of concern and warnings in Lindell, Chenoweth and
Camicia have not educated Mercer Islands officials or lawyers that they are not above the law, or that
the interests of fairness and justice must take precedence over their fiscal interest in avoiding liability
by illicit means. No sanction short of a default judgment will educate, deter or punish Mercer Island,
whose unethical trial publicity has greatly increased the risk that plaintiff will not be compensated for
improper reasons. Mercer Islands continuing, willful offenses are much more atrocious and less
10
excusable than the discovery violations which supported a default judgment in Magana v. Hyundai
11
Motor Am., 167 Wn.2d 570, 592, 220 P.2d 191 (2009). Only a default judgment will insure that the
12
wrongdoer does not profit from the wrong and be discretionary and final.
13
VI.
CONCLUSION
14
Plaintiff respectfully requests the Court to enter a default judgment against defendant City of
15
Mercer Island or alternatively to strike its fault apportionment defense and provide the jury with a full
16
explanatory instruction along the lines set forth in plaintiffs request for relief.
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VII.
PROPOSED ORDER
If the Court grants this renewed motion, plaintiff will prepare a proposed Order incorporating the
Courts findings and rulings.
RESPECTFULLY OFFERED this 20th day of October, 2015.
21
THE BUDLONG LAW FIRM
22
23
By:
JOHN BUDLONG, WSBA #12594
TARA L. EUBANKS, WSBA #34008
24
25
Attorneys for Plaintiff Susan Camicia

26
THE
BUDLONG
LAW FIRM
Edmonds, WA 98020
T 425.673.1944
F 425.673.1884
1
2
DECLARATION OF SERVICE
The undersigned declares under penalty of perjury under the laws of the State of Washington, that
on the date indicated below, a true and correct copy of the foregoing was caused to be served via e-mail
on the following persons:
Andrew G. Cooley
Jeremy Culumber
KEATING, BUCKLIN & McCORMACK, INC.
800 Fifth Avenue, Suite 4141
Seattle, Washington 98104-3175
Attorney for City of Mercer Island
DATED this 20th day of October, 2015.
4
5
be4i.wwie)Rfy DEBRA M. WATT
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THE
BUDLONG
LAW FIRM
Edmonds, WA 98020
T 425.673.1944
F 425.673.1884

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October 20, 2015 - Renewed Motion For Default (Highlighted) PDF

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1

Honorable Laura Inveen

IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON

NO. 07-2-29545-3 SEA

REQUEST FOR RELIEF

motion for default.2

GROUNDS FOR RELIEF

at the site of the accident. Id.

City Manager Noel Treat. Budlong Dec.

Link to the Mercer Island Reporter Article - http://www.mi-reporter.com/news/332467192.html

defendant. See Boyd and Budlong Decs.

proceedings, and to irreparably prejudice plaintiffs right to a fair trial.

v. Fisons, 122 Wn.2d 299, 355-56, 858 P.2d 1054 (1993).

Declaration of John Budlong with supporting exhibits; Declaration of Jeffrey Boyd.

The Order in Limine Excluding Evidence of Plaintiffs Lawsuit against and

Ex. 2 to Budlong Dec.Plaintiffs Motion in Limine pp. 2-3.

Settlement and Offers of Settlement

Ex. 3 to Budlong Dec.Defendants Response to Plaintiffs Motion in Limine p. 3.

Mercer Islands Dissemination of Plaintiffs Confidential Settlement with HSW, the

The city could not comment further on the lawsuit.

Ex. 1 to Budlong Dec.10/14/15 MI Reporter article. (Emphasis supplied)

Islands own settlement negotiations.

or the lawyer's client. RPC 3.6(c).

Lindell v. City of Mercer Island

and filed a motion to compel. Id. at 1283.

Chenoweth v. City of Mercer Island, King Cy. Case No. 14-2-08755-1SEA

Mercer Islands Publication of Plaintiffs Confidential Settlement with Howard S.

The May 20, 2015 Order on Plaintiffs Motions in Limine.

The Trial Publicity Rules in RPC 3.6.

for lawyers regarding trial publicity:

RULE 3.6. TRIAL PUBLICITY

Comment 5 to RPC 3.6 provides:

precisely because it will have a substantial likelihood of materially prejudicing an adjudicative

right to a fair trial.

Mercer Islands Publication of Plaintiffs Confidential Settlement with Howard S.

the amount of the settlement because it is confidential.

continued to seek damages from the city.

that did not fully compensate her?

final, effective, discretionary remedy against these Hobson choices.

10-19-15 Boyd Declaration.

it did in Lindell and Chenoweth.

Councilman Grausz apologized in the

an investigation of Officer Harbinson in order to obtain collateral litigation advantages. In Camicia,

as it diminishes the risk or amount of an adverse judgment.

Attorneys for Plaintiff Susan Camicia

DATED this 20th day of October, 2015.

be4i.wwie)Rfy DEBRA M. WATT

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