January 2015 Bar Bulletin
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January 2015 Bar Bulletin

The Confusing Standards for Discretionary Review in Washington and a Proposed Framework for Clarity

By Judge Stephen J. Dwyer, Leonard J. Feldman and Hunter Ferguson


Second of Two Parts

The Introduction and first half of Part II.A of this article were reprinted in the December 2014 edition of the Bar Bulletin. In those portions of the article, we explained that there are differing interpretations of the considerations governing discretionary review under RAP 2.3(b)(1) and (b)(2), resulting in inconsistency and a corresponding need for clarity. In the second half of Part II.A of the article, reprinted below, we describe several noteworthy cases that properly apply these provisions.

Then, in Part II.B, we apply basic principles of statutory interpretation to the RAP, as well as consider the legislative history of the rule to evaluate this precedent. Based on our analysis, we conclude that subsections (b)(1) and (b)(2) should properly apply to distinct situations and that review under subsection (b)(2) should be granted only in the context of a court order having immediate effects outside the judicial process, such as a preliminary injunction, an order requiring disclosure of privileged communications, or an order to divulge a trade secret or other confidential information.

We also explain that an alternative reading - one that applies subsection (b)(2) to partial summary judgment or evidentiary rulings - would render subsection (b)(1) unnecessary. Further, we explain that our suggested approach would bring Washington jurisprudence in line with federal standards governing interlocutory review.

II. Analysis

A. Washington Courts' Inconsistent Application of RAP 2.3(b)(1) and (b)(2)

(Continuing discussion ....)

The above discussion is not meant to suggest - nor is it true - that Washington appellate courts have persistently misapplied subsections (b)(1) and (b)(2). To the contrary, there are a few noteworthy cases that properly apply these provisions. In Macias v. Mine Safety Appliances Co.,1 for example, the issue on appeal was whether a plaintiff, who developed mesothelioma after decades of cleaning respirators used in the handling of asbestos-laden materials, could assert a failure to warn product liability claim against the respirator manufacturers even though the respirators he cleaned were not made with asbestos.2 Despite two recent rulings of the Washington Supreme Court limiting the duty to warn to persons in the chain of distribution of a potentially harmful product, the trial court denied the respirator manufacturers' motion for summary judgment.3 A commissioner for the Court of Appeals subsequently granted discretionary
review on the ground that the trial court had committed obvious error.4 Applying controlling precedent, the Court of Appeals reversed and ordered that summary judgment be entered on remand.5

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