1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

Honorable Laura InveenHearing Date: October 30, 2015

Without Oral Argument

IN THE SUPERIOR COURT OF THE STATE OF WASHINGTONIN AND FOR THE COUNTY OF KING

SUSAN CAMICIA,

Plaintiff,

v.

HOWARD S. WRIGHT CONSTRUCTIONCOMPANY, a Washington corporation; andCITY OF MERCER ISLAND, a municipalcorporation,

Defendants.

))))))))))))))

NO. 07-2-29545-3 SEA

PLAINTIFF’S RENEWED MOTIONFOR A DEFAULT JUDGMENT,DISMISSAL OF DEFENDANT’S FAULTAPPORTIONMENT DEFENSE, ANDMONETARY SANCTIONS

I. REQUEST FOR RELIEF

Plaintiff Susan Camicia respectfully renews her motion for a default judgment. Alternatively,

plaintiff requests the lesser sanction of striking defendant City of Mercer Island’s fault apportionment

defense and instructing the jury that Mercer Island and its lawyers wilfully, in violation of law and the

rules of legal ethics, provided information about a pretrial settlement for the purpose of unfairly

prejudicing plaintiff’s legal rights and the administration of justice in order to gain an unfair advantage

in this lawsuit. The jury also should be instructed to disregard whether any pretrial settlement occurred.

This renewed motion is based on Mercer Island’s extrajudicial statements for publication in the Mercer

Island Reporter on the eve of trial about plaintiff’s confidential settlement with former defendant Howard

S. Wright Construction Co. and about Mercer Island’s unsuccessful mediation with plaintiff. Those

statements, which any potential or actual juror may discover in print, online through a simple internet

search, or through social media, have irreparably prejudiced plaintiff’s guarantee of a fair trial. Ex. 1 to

T H E

B U D L O N GL A W F I R M

100 Second Avenue S, #200Edmonds, WA 98020

T 425.673.1944F 425.673.1884

PLAINTIFF’S RENEWED MOTION FOR A DEFAULTJUDGMENT, DISMISSAL OF FAULT APPORTIONMENTDEFENSE AND MONETARY SANCTIONS - 1Renewed Motion for Default.wpd

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

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 Court’s May 20, 2015 Order on Plaintiff’s

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

mediation was unsuccessful.” Ex. 1 to Budlong Dec. Mercer Island’s disclosure to the Reporter further

implies that HSW settled because it was at fault for having “signage and fencing intruding on the trail

at the site of the accident.” Id.

Plaintiff and her counsel did not communicate with or provide any of this information to the

Mercer Island Reporter, whose only attributed sources are Mercer Island’s City Attorney Kari Sand and

City Manager Noel Treat. Budlong Dec.

Mercer Island’s extrajudicial statements to the Mercer Island Reporter are designed to influence

potential or actual jurors in favor of Mercer Island’s liability and fault apportionment defenses on the eve

of the November 2, 2015 trial by publicly disseminating evidence that the Court has excluded in limine.

If Mercer Island’s attorneys mentioned settlement and former defendant information to jurors at trial, the

Court could rectify the prejudice by declaring a mistrial, imposing terms, and impaneling a new jury.

But the Court cannot ensure that potential or actual jurors will not be exposed to the inadmissible

1Link to the Mercer Island Reporter Article - http://www.mi-reporter.com/news/332467192.html

2Plaintiff is moving separately for monetary sanctions to recover the additional expert witness feesand attorney fees she incurred as a result of defendant Mercer Island’s and its defense counsel’s discoveryviolations.

T H E

B U D L O N GL A W F I R M

100 Second Avenue S, #200Edmonds, WA 98020

T 425.673.1944F 425.673.1884

PLAINTIFF’S RENEWED MOTION FOR A DEFAULTJUDGMENT, DISMISSAL OF FAULT APPORTIONMENTDEFENSE AND MONETARY SANCTIONS - 2Renewed Motion for Default.wpd

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

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 plaintiff’s 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,

extremely prejudicial information about plaintiff’s confidential settlement with HSW settlement in

conjunction with evidence of HSW’s fault as an “empty chair”, as well as information about Mercer

Island’s own settlement negotiations. The dissemination of this information violates the Court’s May

20, 2015 Order in Limine and RPC 3.6 which governs trial publicity. Mercer Island knew that disclosure

of plaintiff’s settlement with HSW, HSW’s status as a former defendant, and information about its own

settlement negotiations were excluded in limine. Mercer Island’s City Attorney knew it was an ethical

violation to disclose that information for publication. The only reasonable conclusion is that Mercer

Island disseminated this information to influence the jury, to detract from the impartiality of the

proceedings, and to irreparably prejudice plaintiff’s right to a fair trial.

As documented below, Mercer Island’s officials and attorneys have a long, consistent history of

willful, recalcitrant, unapologetic discovery and litigation abuse in this case and in other recent lawsuits.

Mercer Island’s repertoire of litigation tactics in this and other recent cases includes willful discovery

evasion, willful suppression and destruction of relevant evidence, resistance to and noncompliance with

discovery orders and orders in limine, extrajudicial attacks on opposing parties to obtain collateral

advantages in the litigation, urging the Court to decide legal and evidentiary issues on improper fiscal-

consequence grounds, and now putting prejudicial information that has been excluded in limine in the

T H E

B U D L O N GL A W F I R M

100 Second Avenue S, #200Edmonds, WA 98020

T 425.673.1944F 425.673.1884

PLAINTIFF’S RENEWED MOTION FOR A DEFAULTJUDGMENT, DISMISSAL OF FAULT APPORTIONMENTDEFENSE AND MONETARY SANCTIONS - 3Renewed Motion for Default.wpd

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

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 Island’s 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 Island’s officials and lawyers sufficiently to “deter” their

pattern of misconduct or to “educate” them to change their institutional dogma that the ends of winning

justify the means of cheating. Instead, the lesser sanctions have been counterproductive because they

have been followed by greater misconduct. While courts understandably are hesitant to impose the

harshest sanction of default against a city, it is justified when public officials and their lawyers

repeatedly defy the rule of law and undermine the integrity of the judicial process. A default judgment

is necessary to deter, punish and educate when a defendant’s history shows lesser sanctions are

ineffective and almost meaningless in comparison to the fruits of continued misconduct. There is no

evidence or reason to believe that any lesser sanction will accomplish the policies of Fisons or insure that

jurors will not access and use illicit information to decide plaintiff’s case. In the September 14 sanctions

order, this Court found that “defense counsel shows no indication of a plan to change his conduct in the

future” and that “it is highly likely this issue will come up in the future.” Findings of Fact 30, 31.

Indeed, within just a month the Court’s prediction has already come true.

The publication of the confidential HSW settlement unfairly punishes plaintiff and gratuitously

prejudices the administration of justice with further delay, waste of more court time on a trial that already

has been continued for months because of defense misconduct, more expense, increased risks of juror

bias, mistrial if one or more jurors is exposed to the information before or during the 5 week trial, and

T H E

B U D L O N GL A W F I R M

100 Second Avenue S, #200Edmonds, WA 98020

T 425.673.1944F 425.673.1884

PLAINTIFF’S RENEWED MOTION FOR A DEFAULTJUDGMENT, DISMISSAL OF FAULT APPORTIONMENTDEFENSE AND MONETARY SANCTIONS - 4Renewed Motion for Default.wpd

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

increased risk of appeal and retrial. A default judgment is the only effective, discretionary remedy

against Mercer Island’s pattern of intentional discovery evasion and litigation abuse. If the Court

imposes a lesser sanction and makes a necessary explanatory instruction identifying Mercer Island’s

violations of the Court’s order and the RPC’s, 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 defendant’s 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.

III. EVIDENCE RELIED ON

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

IV. FACTUAL BACKGROUND

A. The Order in Limine Excluding Evidence of Plaintiff’s Lawsuit against andSettlement with Howard S. Wright and Evidence of Settlement Negotiations.

In May 2015, plaintiff “moved in limine for an Order directing that the parties, their witnesses

and attorneys not directly or indirectly disclose, mention, or attempt to convey to the jury in any manner

any of the following matters listed below:”

The Claims, Motions, Rulings and Dismissals In this Lawsuit.

Defendant City of Mercer Island should be precluded from stating or implying to the jury (a) thatHoward S. Wright, Inc. was ever a party to this lawsuit; or (b) that plaintiff voluntarily dismissedHoward S. Wright, Inc. These circumstances should be excluded under ER 401-403 because theyhave 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 ina 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 courtto reveal to the jury that the plaintiff settled a claim against a former co-defendant. Thus,plaintiff’s voluntary dismissal of Howard S. Wright, Inc. is inadmissible in the trial of plaintiff’sclaims against City of Mercer Island.

...[T]he jury should not be given or shown pleadings or captions disclosing the names of personsor entities who have settled or are no longer parties to the action. ER 401-403. Diaz and Grigsby,supra.

T H E

B U D L O N GL A W F I R M

100 Second Avenue S, #200Edmonds, WA 98020

T 425.673.1944F 425.673.1884

PLAINTIFF’S RENEWED MOTION FOR A DEFAULTJUDGMENT, DISMISSAL OF FAULT APPORTIONMENTDEFENSE AND MONETARY SANCTIONS - 5Renewed Motion for Default.wpd

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

Ex. 2 to Budlong Dec.–Plaintiff’s Motion in Limine pp. 2-3.

In response, defendant Mercer Island agreed that plaintiff’s 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 governingwhether a door has been opened, the City agrees that the claim against them and settlementshould not be mentioned.

Ex. 3 to Budlong Dec.–Defendant’s Response to Plaintiff’s Motion in Limine p. 3.

On May 20, 2015, the Court granted plaintiff’s motions in limine regarding “the claims, motions,

rulings and dismissals” and “settlements and offers of settlement” and removed defendant Howard S.

Wright Construction, Co. from the case caption to prevent jurors from being improperly influenced by

this irrelevant, highly prejudicial former defendant and confidential settlement information.

B. Mercer Island’s Dissemination of Plaintiff’s Confidential Settlement with HSW, theParties’ Settlement Negotiations, and Fault Apportionment Information to theMercer Island Reporter for Publication.

On October 13, 2015, the parties held a mediation with the Hon. Paris Kallas to attempt to settle

this case. Mercer Island City Attorney Kari Sand, defense counsel Andrew Cooley and Washington

Cities Insurance Authority Claims Manager Reed Hardesty attended the mediation on behalf of the

defendant. Ex. 4 to Budlong Dec.–10/13/15 Judicial Dispute Resolution attendance sheet. The day after

the unsuccessful mediation, the Mercer Island Reporter published a front page article based on its

interview with City Attorney Sand and City Manager Noel Treat. The article was disseminated to the

residents of Mercer Island. It is permanently accessible to potential and actual jurors in print and online.

It contains the following statements and information which are relevant to this motion:

Islanders may be reminded of a recent case involving the city withholding public records fromformer City Attorney Londi Lindell in 2011, but this case involves violation of discovery rules,not the Public Records Act, Sand said.3

3On June 27, 2011, the United States District Court in Seattle sanctioned Mercer Island $90,560in penalties for deliberately violating Washington’s Public Records Act by not disclosing exempt recordssought by former City Attorney and Deputy City Manager Londi Lindell in her gender discrimination,

T H E

B U D L O N GL A W F I R M

100 Second Avenue S, #200Edmonds, WA 98020

T 425.673.1944F 425.673.1884

PLAINTIFF’S RENEWED MOTION FOR A DEFAULTJUDGMENT, DISMISSAL OF FAULT APPORTIONMENTDEFENSE AND MONETARY SANCTIONS - 6Renewed Motion for Default.wpd

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

“Every record the city has is arguably a public record, but this is not a public records case per se,”Sand said.

Camicia sought personal injury damages from Sound Transit subcontractor Howard S. WrightConstruction 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. ...

Camicia’s 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 thesubstance of the litigation,” Sand said.

On Tuesday, Oct. 13, the parties voluntarily met with a mediator in efforts to settle the case,Sand said, but the mediation was unsuccessful.”

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

The article attributes the following statements to Mercer Island City Manager Noel Treat:

“We are committed to the transparency of the City’s work and to providing records in litigation,”City Manager Noel Treat said in a statement. ...

“The safety of bicyclists and all trail users is of utmost importance to the City. Fortunately, noother I-90 trail incidents of this scale have occurred since this one, and we hope to maintain thatrecord of safety,” Treat said.

Id.

Mercer Island provided this information to the MI Reporter immediately after the unsuccessful

October 13 mediation, knowing it would be published and knowing it could influence potential or actual

jurors to decide this lawsuit against plaintiff Camicia on grounds that HSW was the only at-fault

defendant, that Camicia already has been compensated by the HSW settlement, or that Camicia’s

continued efforts to obtain damages from Mercer Island are improper. City Attorney Sand knew it was

sexual harassment and retaliatory termination lawsuit against the City. See Ex. 5 to BudlongDec.–Lindell v. City of Mercer Island, 833 F.Supp.2d 1276 (2011). The federal court also sanctionedMercer Island for $94,000 in attorney fees. See Ex. 6 to Budlong Dec.–9/13/11 “Letter/CouncilmanGrausz addresses outcome of Lindell lawsuit.”

T H E

B U D L O N GL A W F I R M

100 Second Avenue S, #200Edmonds, WA 98020

T 425.673.1944F 425.673.1884

PLAINTIFF’S RENEWED MOTION FOR A DEFAULTJUDGMENT, DISMISSAL OF FAULT APPORTIONMENTDEFENSE AND MONETARY SANCTIONS - 7Renewed Motion for Default.wpd

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

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 Island’s lawyers also knew this Court had excluded in limine

information about HSW’s role as a former defendant, HSW’s settlement with plaintiff, and Mercer

Island’s own settlement negotiations.

Mercer Island’s 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

information nor the information that plaintiff had “received a confidential amount in an out-of-court

settlement with the construction company...and since then, has continued to seek damages from the city

[and that] the parties voluntarily met with a mediator in efforts to settle the case” had anything to do with

this Court’s September 14, 2015 Order on Motion for Sanctions/Admitting Evidence of Other Accidents.

No “reasonable lawyer would believe [the City Attorney’s extrajudicial statements] [were] required to

protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer

or the lawyer's client.” RPC 3.6(c).

The “signage” mentioned in the article is the same signage shown in the MIPD’s accident scene

photos that Mercer Island’s lawyer deliberately withheld from plaintiff without explanation for the first

18 months of this lawsuit. This Court found that withholding of evidence “deprived Plaintiff of the

opportunity to refresh her recollection of existing conditions before her depositions and deprived her

expert witnesses of that evidence before their depositions.” See 9/14/15 Sanctions Order, Findings of

Fact 18-20. And it noted “the disclosure and existence of [the photos showing the signage] would be

helpful to the City’s case in shifting liability, to the extent it existed, to the co-defendant Howard S.

Wright Construction.” Id., Finding of Fact 21. Defendant’s extrajudicial statements in the Mercer Island

Reporter are trial publicity designed to advance its liability, fault apportionment and empty chair defenses

T H E

B U D L O N GL A W F I R M

100 Second Avenue S, #200Edmonds, WA 98020

T 425.673.1944F 425.673.1884

PLAINTIFF’S RENEWED MOTION FOR A DEFAULTJUDGMENT, DISMISSAL OF FAULT APPORTIONMENTDEFENSE AND MONETARY SANCTIONS - 8Renewed Motion for Default.wpd

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

based on HSW’s signage and fencing by linking them to HSW’s 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.

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 Island’s Deputy City Manager. Lindell’s

PRA request sought records of: (1) Lindell’s employment termination (the “Segle matter” which gave

rise to plaintiff’s discrimination, harassment and retaliation claims and the “Reed investigation” of the

Segle matter); (2) the termination of another City employee (Stepson); and (3) Lindell’s Outlook

calendar. Mercer Island admittedly had no grounds to withhold the non-exempt Stepson records or

Lindell’s Outlook calendar, but it nevertheless “wrongfully withheld those records from Ms. Lindell”

with “no explanation” for “two and a half years” from 2008 to 2010. 833 F.Supp.2d at 1287.

In response to Lindell’s PRA request, Mercer Island produced a document log that did not

identify the Segle matter documents or the City’s written waiver of the attorney-client privilege for the

Reed investigation. 833 F.Supp.2d at 1282-83. Mercer Island only identified the Segle-Reed documents

after Lindell filed her lawsuit, sent discovery requests for many of the documents in her PRA requests,

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

After an in camera review, the federal court “ordered the City to produce the [Segle-Reed]

documents immediately.” Id. at 1282-83. Although Mercer Island’s Mayor, City Manager and a City

Council member all testified that the Segle-Reed documents were not prepared in anticipation of

litigation, and the federal court had previously ruled that the work product doctrine did not apply, Mercer

Island continued to assert that it did apply. It also insisted the attorney-client privilege shielded these

records, despite its written waiver of the attorney-client privilege, and the court’s ruling that it did not

apply. Id. at 1281-83. Mercer Island defied the federal court’s order to produce the Segle-Reed

T H E

B U D L O N GL A W F I R M

100 Second Avenue S, #200Edmonds, WA 98020

T 425.673.1944F 425.673.1884

PLAINTIFF’S RENEWED MOTION FOR A DEFAULTJUDGMENT, DISMISSAL OF FAULT APPORTIONMENTDEFENSE AND MONETARY SANCTIONS - 9Renewed Motion for Default.wpd

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

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.

Judge Robart found that Mercer Island’s “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 intentionalnoncompliance with the PRA by the City.

The City threatened to file bar complaints against Ms. Lindell, and even filed counter-claimsagainst her in this case, for disclosing what it considered to be attorney-client confidences. ... The City’s attempt to use these facts as a mitigating factor, without acknowledging its ownculpability, is troubling to the court and belies the City’s credibility.

833 F.Supp.2d 1288, 1289 fn. 4.

In response to the decision, Judge Robart’s imposition of $184,000 in monetary sanctions, and

the City’s insurer’s payment of a $1,000,000 settlement to Lindell, Mercer Island Councilman (now

Mercer Island Deputy Mayor) Grausz published a letter to the editor in the Mercer Island Reporter which

continued to blame the judge and minimize the City’s culpability for deliberately suppressing

discoverable records without explanation and for baselessly asserting they were privileged:

There is no way to sugarcoat this situation and I will not insult your intelligence by trying to doso. 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 asa lawyer I found hard to understand as did the insurance company and its lawyers. ...

Second, as to the Public Records Act judgment, the bulk of the $90,000 judgment relates to a setof documents that the City had claimed were subject to the attorney-client privilege. From alitigation standpoint, the City and its insurer acted properly in asserting this privilege and, in myopinion, had a strong legal basis for doing so. From the public’s right to know standpoint andwith the benefit of 20/20 hindsight, it was the wrong decision.

T H E

B U D L O N GL A W F I R M

100 Second Avenue S, #200Edmonds, WA 98020

T 425.673.1944F 425.673.1884

PLAINTIFF’S RENEWED MOTION FOR A DEFAULTJUDGMENT, DISMISSAL OF FAULT APPORTIONMENTDEFENSE AND MONETARY SANCTIONS - 10Renewed Motion for Default.wpd

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

I apologize to the people of Mercer Island for what has happened.... I will do what I can to makeamends for this.

Ex. 6 to Budlong Dec.– 9/13/11 Councilman Grausz letter.

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

In Chenoweth, another bicycle accident case against Mercer Island, Mr. Cooley informed

Edmonds Police Chief Al Compaan that Edmonds police officer Steve Harbinson was the plaintiff’s

accident reconstruction expert against Mercer Island. See Ex.7 to Budlong Dec.-9-8-15 Order on

Plaintiffs’ Motion for Contempt, Etc. This action triggered an Edmonds Police Department internal

investigation of Officer Harbinson, which left his status as an expert witness uncertain. Order, p. 4. In

denying the plaintiff’s motion for contempt, Judge Roberts wrote in her order:

There is no doubt in the court’s mind that Mr. Cooley carefully orchestrated this predicament. He elicited testimony from Mr. Harbinson that would put the City of Edmonds at risk, confirmedthat Mr. Harbinson had done off-duty work that might conflict with his employer’s requirements,and then brought the information to Mr. Harbinson’s boss. His claim that he contacted [MercerIsland Police] Chief Holmes and Chief Compaan only as a means to learn the identity of theEdmonds Director of Public Works strains credulity. His purpose was to be certain that the ChiefCompaans took a close look at Mr. Harbinson’s conduct. That purpose may be fair. But theconvoluted explanation given in Mr. Cooley’s declaration borders on the misleading, and givethis court grave concern.

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.

V. ARGUMENT

A. Mercer Island’s Publication of Plaintiff’s Confidential Settlement with Howard S.Wright Violated the Court’s Order In Limine and the Rules of ProfessionalConduct.

1. The May 20, 2015 Order on Plaintiff’s Motions in Limine.

By providing settlement and former defendant information for publication in the Mercer Island

Reporter and online, defendant Mercer Island wilfully violated its own agreement and the Court’s Order

on Plaintiff’s Motions in Limine, which directs that “the parties, their witnesses and attorneys not directly

or indirectly disclose, mention, or attempt to convey to the jury in any manner” plaintiff’s claims against,

T H E

B U D L O N GL A W F I R M

100 Second Avenue S, #200Edmonds, WA 98020

T 425.673.1944F 425.673.1884

PLAINTIFF’S RENEWED MOTION FOR A DEFAULTJUDGMENT, DISMISSAL OF FAULT APPORTIONMENTDEFENSE AND MONETARY SANCTIONS - 11Renewed Motion for Default.wpd

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

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); Magaña v. Hyundai Motor Am., 167 Wn.2d 570, 584, 220 P.2d 191 (2009).

2. The Trial Publicity Rules in RPC 3.6.

RPC 3.6 and its pertinent Comments and Guidelines for Application set forth the ethical rules

for lawyers regarding trial publicity:

RULE 3.6. TRIAL PUBLICITY

(a) A lawyer who is participating or has participated in the investigation or litigation of a mattershall not make an extrajudicial statement that the lawyer knows or reasonably should know willbe disseminated by means of public communication and will have a substantial likelihood ofmaterially prejudicing an adjudicative proceeding in the matter.

(b) [List of inapplicable exceptions to paragraph (a)]

(c) Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyerwould believe is required to protect a client from the substantial undue prejudicial effect of recentpublicity not initiated by the lawyer or the lawyer's client. A statement made pursuant to thisparagraph shall be limited to such information as is necessary to mitigate the recent adversepublicity.

(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).

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 relateto:

(5) information that the lawyer knows or reasonably should know is likely to be inadmissible asevidence in a trial and that would, if disclosed, create a substantial risk of prejudicing animpartial trial;...

The Appendix Guidelines for Applying Rule of Professional Conduct 3.6 provides:

II. Civil

The kind of statement referred to in Rule 3.6 which may potentially prejudice civil matters triableto a jury is a statement designed to influence the jury or to detract from the impartiality of theproceedings.

City Attorney Sand and defense counsel Cooley attended the October 13 mediation and are

“participating in the litigation of [this] matter.” RPC 3.6 (a). Attorney Sand made extrajudicial

T H E

B U D L O N GL A W F I R M

100 Second Avenue S, #200Edmonds, WA 98020

T 425.673.1944F 425.673.1884

PLAINTIFF’S RENEWED MOTION FOR A DEFAULTJUDGMENT, DISMISSAL OF FAULT APPORTIONMENTDEFENSE AND MONETARY SANCTIONS - 12Renewed Motion for Default.wpd

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

statements that she knew would be disseminated by means of public communication in the Mercer Island

Reporter and on the internet. In response to plaintiff’s 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.

The disclosure of HSW’s co-defendant role, confidential settlement and fault apportionment, and

Mercer Island’s October 13, 2015 mediation was not “required to protect a client from the substantial

undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client”, nor was it

“limited to such information as is necessary to mitigate the recent adverse publicity” from the Court’s

September 14, 2015 sanctions order, which was limited to Mercer Island’s discovery violations and did

not involve HSW’s settlement or status as a former defendant. RPC 3.6 (c). Instead, City Attorney

Sand’s statements to the Mercer Island Reporter were “designed to influence the jury or to detract from

the impartiality of the proceedings”, Appendix, supra, by making highly sensitive, excluded settlement

information available to potential or actual jurors. These communications were designed to circumvent

and undermine the Court’ s May 20 Order in Limine, and they have irreparably prejudiced plaintiff’s

right to a fair trial.

B. Mercer Island’s Publication of Plaintiff’s Confidential Settlement with Howard S.Wright Has Caused Irreparable Prejudice.

It is almost impossible to overstate the prejudice Mercer Island’s intentional disclosure of Howard

S. Wright’s confidential settlement has inflicted on plaintiff’s case. The settlement would inform jurors

who become exposed to the MI Reporter article that HSW, a major construction company, already has

T H E

B U D L O N GL A W F I R M

100 Second Avenue S, #200Edmonds, WA 98020

T 425.673.1944F 425.673.1884

PLAINTIFF’S RENEWED MOTION FOR A DEFAULTJUDGMENT, DISMISSAL OF FAULT APPORTIONMENTDEFENSE AND MONETARY SANCTIONS - 13Renewed Motion for Default.wpd

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

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 Island–both 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 can’t 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.

The confidentiality of the settlement destroys plaintiff’s and her lawyer’s credibility with any

jurors who access the settlement information because they are asking those jurors to award damages

without first being forthcoming about the fact, terms and amount of the HSW settlement. Plaintiff could

not disclose the settlement amount if she wished because she and HSW bargained for and are

contractually bound by reciprocal confidentiality. The confidential settlement invites jurors to suspect

that plaintiff continues to seek a double recovery out of unfairness or greed. See Jeffrey Boyd Dec.

Mercer Island intentionally fueled this suspicion by telling the Mercer Island Reporter: “She received

a confidential amount in an out-of-court settlement with the construction company... and since then, has

continued to seek damages from the city.”

Ms. Sand, Mr. Cooley and Mr. Treat are the only people the article mentions who knew about

the HSW settlement or that it was confidential. They had the motive to disclose the settlement to

prejudice plaintiff at trial and acted on it as soon as their own mediation failed.

The settlement information also invites jurors to conclude plaintiff is committing lawsuit abuse

against the judicial system and the jury by proceeding against Mercer Island after settling with HSW.

This is especially unfair because violation of ER 408 and the Order in Limine was intended and

perpetrated by Mercer Island. The City Attorney also provided information for the article which suggests

T H E

B U D L O N GL A W F I R M

100 Second Avenue S, #200Edmonds, WA 98020

T 425.673.1944F 425.673.1884

PLAINTIFF’S RENEWED MOTION FOR A DEFAULTJUDGMENT, DISMISSAL OF FAULT APPORTIONMENTDEFENSE AND MONETARY SANCTIONS - 14Renewed Motion for Default.wpd

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

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 Island’s efforts to

eliminate or diminish a plaintiff’s 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

confidential settlement if it was not at fault. And why would plaintiff agree to a settlement with HSW

that did not fully compensate her?

The settlement information signals to jurors that HSW acknowledged its fault because otherwise

it would not have paid a settlement. See Boyd Dec. It supports Mercer Island’s defense that it was not

at fault, or its share of fault is substantially less than HSW’s fault, which both plaintiff and HSW have

acknowledged by their settlement. It also signals that by settling, plaintiff recognizes HSW was at fault

and would be a hypocrite to attempt to minimize its fault at trial. This inadmissible settlement

information undermines plaintiff’s ability to contest the factual and legal basis of the fault apportionment

defense.

It will be impossible to keep the jurors from discovering the information about this lawsuit which

is in print, online and on social media. The trial publicity issue will have to be covered in voir dire. The

Court cannot ensure jurors have not seen or will not access the extremely prejudicial settlement

information it excluded in limine. Nor can the Court guarantee that this information will not influence

a juror’s decisions or the jury verdict. If an empaneled juror admitted accessing the Mercer Island

Reporter article, it would be grounds for a mistrial. If a juror is exposed to the article and bases a defense

verdict on the settlement information without admitting it, plaintiff covertly will be denied a fair trial.

T H E

B U D L O N GL A W F I R M

100 Second Avenue S, #200Edmonds, WA 98020

T 425.673.1944F 425.673.1884

PLAINTIFF’S RENEWED MOTION FOR A DEFAULTJUDGMENT, DISMISSAL OF FAULT APPORTIONMENTDEFENSE AND MONETARY SANCTIONS - 15Renewed Motion for Default.wpd

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

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 Hobson’s choice of

telling the jury about HSW’s 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

it will be discovered and disclosed, causing delay, mistrial and retrial. A default judgment is the only

final, effective, discretionary remedy against these Hobson choices.

Plaintiff has no responsibility for injecting settlement information into the public domain and

potentially into her trial. She had to settle with HSW to protect her future because she is aging, her

health is declining, she will not be able to work full time much longer, and part time work is not a viable

option for a legal assistant in a litigation law firm. She followed the policy of the law that favors

settlement. Susan Camicia relied on these legal protections when she settled with HSW because she

knew pretrial settlements are inadmissible under ER 408 and case law.

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 fromcountless movies, television shows, and novels, that the issue they are to decide is to be whetherone defendant - the one who appears in the trial in which they are participating - is guilty or notguilty. In that mindset, introduction of the fact that the plaintiff reached a settlement with someentity other than the defendant can have a profound effect on jurors' evaluation of the liability ofthe (remaining) defendant.

In my experience, that effect is almost always to the detriment of the plaintiff. Jurors equatesettlement with an admission of fault, and if someone has settled/admitted fault, they often feelmisled as to what is "really" going on, or feel that the plaintiff is doing something unfair tocontinue an action against a second entity after settling with a now-unnamed party. Theirthinking is "If plaintiff settled with "X," this has already been decided; I don't feel like plaintiffshould try to get more money out of this defendant."

T H E

B U D L O N GL A W F I R M

100 Second Avenue S, #200Edmonds, WA 98020

T 425.673.1944F 425.673.1884

PLAINTIFF’S RENEWED MOTION FOR A DEFAULTJUDGMENT, DISMISSAL OF FAULT APPORTIONMENTDEFENSE AND MONETARY SANCTIONS - 16Renewed Motion for Default.wpd

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

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. Lesser Sanctions than Default Have Not and Will Not Adequately Punish or DeterMercer Island from Further Litigation Abuse or Insure that It Will Not Profit fromIts Wrong.

Since the lesser sanctions and warnings were imposed in Lindell, Chenoweth and Camicia,

Mercer Island and its attorneys have escalated their violations of the discovery and legal ethics rules to

cause greater prejudice to opposing parties and taint the administration of justice. Three judges have

expressed concern over the lack of credibility, refusal to admit culpability, and lack of remorse that

Mercer Island’s officials and lawyers have repeatedly shown in recent lawsuits.

In Lindell, Judge Robart said Mercer Island’s failure “to acknowledg[e] its own culpability is

troubling to the court and belies the City’s credibility.” In Chenoweth, Judge Roberts said “Mr. Cooley’s

declaration borders on the misleading, and give[s] this court grave concern.” In its September 14

sanctions order, this Court described Mercer Island’s and Mr. Cooley’s discovery evasion as “willful”,

“false”, “misleading”, “evasive”, “unapologetic”, “defensive” and found that “throughout the course of

discovery and litigation surrounding it in this proceeding, counsel has made comments that are

misleading [citing examples].” Findings of Fact 28-31. This Court also found that “defense counsel

shows no indication of a plan to change his conduct in the future” and that “[g]iven the fact that defense

counsel’s law practice focuses primarily on municipalities, it is highly likely this issue will come up in

the future.” Findings of Fact 30, 31. The predicted future misconduct and abuses already have recurred

T H E

B U D L O N GL A W F I R M

100 Second Avenue S, #200Edmonds, WA 98020

T 425.673.1944F 425.673.1884

PLAINTIFF’S RENEWED MOTION FOR A DEFAULTJUDGMENT, DISMISSAL OF FAULT APPORTIONMENTDEFENSE AND MONETARY SANCTIONS - 17Renewed Motion for Default.wpd

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

within a month of the September 14 sanctions order, this time through disclosure of vastly more

prejudicial settlement evidence in deliberate violation of the Court’s 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 Island’s 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

Grausz’s letter. Even though it had waived the attorney-client privilege in writing, Mercer Island

continued to insist that “the City and its insurer acted properly in asserting this [attorney-client]

privilege... and ... had a strong legal basis for doing so.” Id. Councilman Grausz apologized in the

Mercer Island Reporter for what happened in Lindell and promised to make amends. Yet for the 8 years

between 2007 and 2015, Mercer Island continued wilfully and falsely to deny the existence of, suppress

and destroy discoverable evidence, to mischaracterize plaintiff’s discovery requests and assert an invalid

(HIPAA) privilege for bike accidents after the Court ruled the privilege did not apply, and to defy/violate

the discovery rules and a court order in Susan Camicia’s contemporaneous case. Mercer Island also has

waged improper collateral attacks on the plaintiff in this case (through unethical trial publicity), just as

it did in Lindell and Chenoweth.

In Lindell and Chenoweth, Mercer Island’s officials and lawyers “engaged in ‘hard ball’ litigation

tactics to a fairly extreme degree” by threatening Lindell with a baseless bar complaint and by triggering

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

Mercer Island and its lawyers have escalated their extrajudicial misconduct by providing settlement and

fault apportionment information to the Mercer Island Reporter to undermine plaintiff’s claims with

excluded evidence. After its defense counsel’s “Salvini code” arguments to decide legal and evidentiary

issues based on Mercer Island’s financial interests were rebuffed, Mercer Island invited jurors in the MI

T H E

B U D L O N GL A W F I R M

100 Second Avenue S, #200Edmonds, WA 98020

T 425.673.1944F 425.673.1884

PLAINTIFF’S RENEWED MOTION FOR A DEFAULTJUDGMENT, DISMISSAL OF FAULT APPORTIONMENTDEFENSE AND MONETARY SANCTIONS - 18Renewed Motion for Default.wpd

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

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 Island’s 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 Island’s continuing, willful offenses are much more “atrocious” and less

excusable than the discovery violations which supported a default judgment in Magana v. Hyundai

Motor Am., 167 Wn.2d 570, 592, 220 P.2d 191 (2009). Only a default judgment will “insure that the

wrongdoer does not profit from the wrong” and be discretionary and final.

VI. CONCLUSION

Plaintiff respectfully requests the Court to enter a default judgment against defendant City of

Mercer Island or alternatively to strike its fault apportionment defense and provide the jury with a full

explanatory instruction along the lines set forth in plaintiff’s request for relief.

VII. PROPOSED ORDER

If the Court grants this renewed motion, plaintiff will prepare a proposed Order incorporating the

Court’s findings and rulings.

RESPECTFULLY OFFERED this 20th day of October, 2015.

THE BUDLONG LAW FIRM

By: JOHN BUDLONG, WSBA #12594TARA L. EUBANKS, WSBA #34008

Attorneys for Plaintiff Susan Camicia

T H E

B U D L O N GL A W F I R M

100 Second Avenue S, #200Edmonds, WA 98020

T 425.673.1944F 425.673.1884

PLAINTIFF’S RENEWED MOTION FOR A DEFAULTJUDGMENT, DISMISSAL OF FAULT APPORTIONMENTDEFENSE AND MONETARY SANCTIONS - 19Renewed Motion for Default.wpd

be4i.wwie)Rfy -

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

DECLARATION OF SERVICEThe 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-mailon the following persons:

Andrew G. CooleyJeremy CulumberKEATING, BUCKLIN & McCORMACK, INC.800 Fifth Avenue, Suite 4141Seattle, Washington 98104-3175Attorney for City of Mercer Island

DATED this 20th day of October, 2015.

DEBRA M. WATT

T H E

B U D L O N GL A W F I R M

100 Second Avenue S, #200Edmonds, WA 98020

T 425.673.1944F 425.673.1884

PLAINTIFF’S RENEWED MOTION FOR A DEFAULTJUDGMENT, DISMISSAL OF FAULT APPORTIONMENTDEFENSE AND MONETARY SANCTIONS - 20Renewed Motion for Default.wpd