Wynn v. Earin

• Decision Date: 03 April 2008
• Docket Number: No. 78247-4.,78247-4.
• Parties: Pardner WYNN, Respondent, v. Jolene EARIN and John Doe Earin, wife and husband, and their marital community, Petitioners.
• Court: Washington Supreme Court

181 P.3d 806

163 Wash.2d 361

Pardner WYNN, Respondent, v. Jolene EARIN and John Doe Earin, wife and husband, and their marital community, Petitioners.

No. 78247-4.

Supreme Court of Washington, En Banc.

April 3, 2008.

Christopher Joseph Kerley, Mary H. Spillane, William Kastner & Gibbs, James B. King, Evans, Craven & Lackie, P.S., Spokane, WA, for Petitioners.

Mary Elizabeth Schultz, Mary Schultz Law PS, Spokane, WA, for Respondent.

MADSEN, J.

¶ 1 Petitioner Jolene Earin provided counseling to respondent Pardner Wynn, individually and then jointly with his wife. The Wynns divorced, and Ms. Earin provided information obtained during the counseling to the guardian ad litem for the children. She also appeared and testified on Ms. Wynn's behalf at the hearing to determine child placement. Mr. Wynn sued Ms. Earin for emotional distress resulting from alleged violations of the Uniform Health Care Information Act (Health Care Information Act or Act), chapter 70.02 RCW, and for negligence, alleging violations of the standard of care for mental health counselors. The trial court concluded Ms. Earin was entitled to absolute witness immunity from suit for any claims based on her testimony. On appeal, the Court of Appeals reversed, holding that witness immunity does not apply to confidential health care information disclosed in contravention of the Health Care Information Act or to information obtained in a prelitigation professional relationship formed for nonlitigation purposes.

¶ 2 We conclude that witness immunity does not apply to information disclosed in violation of the Health Care Information Act, and affirm this ruling of the Court of Appeals. However, we reverse the Court of Appeals' holding that witness immunity does not apply to testimony relating to information acquired during a professional relationship formed for nonlitigation purposes. Depending on the circumstances, witness immunity may apply to such testimony and in the specific circumstances of this case it does apply.

¶ 3 Although witness immunity does not preclude Mr. Wynn's statutory claims, those claims are otherwise barred. First, Ms. Earin was a witness for Mrs. Wynn, whom she had also counseled, and therefore we reject Mr. Wynn's claims based on Ms. Earin's appearance at the hearing to determine child placement. Second, as to her testimony, we find any challenge to the testimony waived.

¶ 4 The Court of Appeals also concluded that Mr. Wynn's statutory and malpractice claims are so intertwined that, absent "some principled way to sort out what caused what," Wynn v. Earin, 131 Wash.App. 28, 46, 125 P.3d 236 (2005), review granted, 158 Wash.2d 1001, 143 P.3d 829 (2006), he is entitled to attorney fees under the statute if he establishes the entire series of events that he claims caused his alleged damages. We conclude that because Mr. Wynn is not entitled to a retrial on any claims already dismissed, he is not entitled to all the attorneys fees and costs he seeks. We affirm the trial court's award of attorney fees and costs.

FACTS

¶ 5 Beginning in September 1997, Ms. Earin, a certified mental health professional, provided individual counseling to Mr. Wynn followed by joint marital counseling for Wynn and his wife, Cynthia. She assured Mr. Wynn of confidentiality and he provided personal information. Ms. Earin also kept notes and records of the counseling sessions. By May 1998, Mr. Wynn viewed Ms. Earin as being sympathetic to his wife and hostile toward him, so he stopped seeing her. Ms. Earin continued to counsel Cynthia.

¶ 6 The Wynns began dissolution proceedings, with residential placement of their children in dispute. The court appointed a guardian ad litem for the children, Dr. Kim Chupurdia, Ph.D. As part of her investigation, Dr. Chupurdia contacted Ms. Earin by telephone. Dr. Chupurdia had obtained written authorizations from both Mr. Wynn and Mrs. Wynn allowing her to obtain information from Ms. Earin. Ms. Earin asked at the beginning of the conversation whether Dr. Chupurdia had a release, and Dr. Chupurdia said she did. However, Ms. Earin herself did not have a release in hand as required by the Health Care Information Act before disclosing confidential information obtained during counseling sessions. During the 20-minute conversation with Dr. Chupurdia, Ms. Earin provided a great deal of information, including a recommendation as to who should have custody of the children. She did so from memory because she did not have her records before her. Mrs. Earin maintains that she provided information only with respect to the joint counseling sessions and not information obtained when counseling Mr. Wynn individually. Mr. Wynn maintains she had an "agenda" against him and provided inaccurate information. He says that information in the guardian ad litem's report, derived from the conversation with Ms. Earin, was inaccurate, incomplete, and biased.

¶ 7 Subsequently, Ms. Earin was subpoenaed by Mr. Wynn's counsel for a deposition. In connection with this deposition, Mr. Wynn also requested his counseling records from Ms. Earin. Mr. Wynn requested the records from Ms. Earin for the purpose of refuting claims she made. In connection with this request, his counsel waived any privilege Mr. Wynn had in communications with Ms. Earin. Mr. Wynn later testified that he understood the waiver applied only for purposes of the deposition. Ms. Earin did not produce the records, first responding that they were not readily accessible. When Mr. Wynn obtained a court order to produce the records, Ms. Earin explained that the records had been stolen from her car.

¶ 8 At the hearing to determine child placement, Ms. Earin appeared and testified on Cynthia Wynn's behalf, providing information obtained during the counseling sessions. According to Mr. Wynn, she testified to information obtained during his private counseling sessions, and exceeded the scope of the questions asked. However, Mr. Wynn did not object to her appearance at the hearing or her testimony on any grounds of privilege, confidentiality, or violation of the Health Care Information Act. The court ordered primary placement of the children with Mrs. Wynn.

¶ 9 On January 31, 2003, Mr. Wynn brought suit against Ms. Earin for actual damages resulting from alleged violations of the Health Care Information Act and for malpractice. He also sought attorney fees and costs under the Act. His claims, which overlapped, alleged, among other things, violations arising from Ms. Earin's disclosure of information from the counseling sessions to Dr. Chupurdia without a release in hand, her offer to testify in the hearing to determine child placement, her testimony at the hearing, and her failure to take reasonable safeguards to provide security for Mr. Wynn's counseling records, resulting in their loss. Mr. Wynn alleged that Ms. Earin's conduct constituted a "continuum" of misconduct proximately causing him emotional distress damages. Ms. Earin denied all violations of the Act and all negligence.

¶ 10 Prior to trial, Ms. Earin obtained dismissal of claims related to her appearance and testimony at the hearing to determine child placement on the basis that these claims were barred by witness immunity. Accordingly, during the eight-day trial Mr. Wynn pursued his malpractice and statutory claims relating to Ms. Earin's conduct up to the time of the hearing, but he could not assert claims based on conduct after that.

¶ 11 At the close of evidence, the trial court directed a verdict in Mr. Wynn's favor that Ms. Earin violated the Health Care Information Act by talking to Dr. Chupurdia by phone without having Mr. Wynn's written release. The question whether this was also negligence went to the jury, which found it was negligent but not a proximate cause of any damages.

¶ 12 The trial court also directed a verdict in Mr. Wynn's favor that leaving his records in an unlocked car, from which they were stolen, violated the Heath Care Information Act and was negligent as a matter of law. The jury determined this was a proximate cause of damages, and awarded $2,790.00 for economic damages, the amount of counseling expense that Mr. Wynn incurred in treatment by another mental health care provider.

¶ 13 Mr. Wynn requested $119,432 in attorney fees and $11,006 in costs pursuant to RCW 70.02.170(2). The trial court segregated the work it thought was necessary to establish the two statutory violations, estimating that this was 10 percent of the total effort, and awarded $11,900 in fees and $1,100 in costs.

¶ 14 Mr. Wynn appealed, raising a number of issues. Those relevant at this stage of the proceedings are that the trial court erred in applying witness immunity to Ms. Earin's appearance and testimony at the hearing to determine child placement, and that the trial court erred in awarding only part of the attorney fees and costs requested. The Court of Appeals reversed on both of these issues, holding that the Health Care Information Act prevails over witness immunity as to the statutory claims, that the malpractice claims relating to Earin's appearance and testimony are not barred by the witness immunity rule, either, and that Mr. Wynn may be entitled to unsegregated attorney fees and costs on remand, contingent on a jury's damage award on retrial. Wynn, 131 Wash.App. 28, 125 P.3d 236.

ANALYSIS

¶ 15 The trial court held that witness immunity applies to preclude all of Mr. Wynn's claims founded on Ms. Earin's appearance and testimony at trial. In light of this conclusion, the trial court did not decide other issues regarding these claims. Similarly, the parties raise a number of issues in this court, but as the trial court recognized, it is necessary to address other issues related to a particular claim only if witness immunity does not apply to that claim.

¶ 16 Turning first, then, to the threshold witness immunity question, Ms. Earin contends that the Court of Appeals erred in holding that disclosure...