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SMITH v. ORTHOPEDICS INTERN., LTD., P.S.

No. 83038-0.

244 P.3d 939 (2010)

Jerry D. SMITH, as Personal Representative of the Estate of Brenda L. Smith, deceased, and on behalf of Jerry D. Smith, Richona Hill, Jeremiah Hill, and The Estate of Brenda L. Smith, Petitioners, v. ORTHOPEDICS INTERNATIONAL, LIMITED, P.S.; Paul Schwaegler, M.D.; and Swedish Health Services d/b/a Swedish Medical Center/Providence Campus, Respondents.

Supreme Court of Washington, En Banc.

Decided December 16, 2010.

Attorney(s) appearing for the Case

Thomas Richard Golden , Christopher Lee Otorowski , Otorowski, Johnston, Diamond & Golden, Bainbridge Island, WA, for Petitioners.

John Coleman Graffe Jr. , Johnson Graffe Keay Moniz , Mary H. Spillane , Daniel W. Ferm , Williams Kastner & Gibbs, Seattle, WA, for Respondents.

Michael F. Madden , Bennett Bigelow & Leedom P.S., Seattle, WA, amicus counsel for Group Health Cooperative, MultiCare Health System, Physicians Insurance & Washington State Hospital Association.

Stewart Andrew Estes , Keating, Bucklin & McCormack, Inc., P.S., Seattle, WA, amicus counsel for Washington Defense Trial Lawyers.

Bryan Patrick Harnetiaux , David P. Gardner , Spokane, WA, George M. Ahrend , Ahrend Law Firm PLLC, Moses Lake, WA, amicus counsel for Washington State Association for Justice Foundation.

ALEXANDER, J.

¶ 1 This case presents the following questions: (1) whether counsel for defendants in a personal injury action engaged in prohibited ex parte contact with a nonparty treating physician fact witness, per our decision in Loudon v. Mhyre, 110 Wn.2d 675, 756 P.2d 138 (1988), by sending documents to the physician's counsel prior to the physician's testimony at trial, and...

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