PFs' Mtn for Class Cert

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THE HONORABLE DEAN LUM DATE OF HEARING: March 17, 2021 TRIAL DATE: NOVEMBER 1, 2021

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SUPERIOR COURT OF WASHINGTON FOR KING COUNTY PATRICK WILLS, PERSONAL REPRESENTATIVE OF THE ESTATE OF AIDEN WILLS; WHITNEY STETTLER, a single person; CHRISTOPHER GUNNELL, PERSONAL REPRESENTATIVE OF THE ESTATE OF IAN GUNNELL; NORMA HERNANDEZ, PERSONAL REPRESENTATIVE OF THE ESTATE OF ANA CHRISTINA VENTURA HERNANDEZ; all on behalf of themselves and all others similarly situated,

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No. 19-2-31648-9 SEA PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

Plaintiffs, v.

SEATTLE CHILDREN’S HOSPITAL, a nonprofit Washington Corporation, Defendant.

I. RELIEF REQUESTED

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Pursuant to CR 23(b)(3), the Plaintiffs ask this Court to certify a class defined as follows:

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All former admitted child patients of Defendant who were treated in its premises and affiliated areas starting in 2001 to the present who then contracted any version of Aspergillus mold-related illness caused by exposure within Defendant’s premises, where such illness resulted in personal injury including death and loss of consortium to the parents.

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PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION - 1

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777

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Excluded from this Class are Defendant’s officers and employees and their children, if any,

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the Judge assigned to this case and his or her staff, all counsel, and the immediate family members

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of the same. In the alternative, Plaintiffs ask this Court to certify an injunctive class pursuant to

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CR 23(b)(2). Finally, the Plaintiffs ask this Court to appoint them as Class Representatives and

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their counsel as Class Counsel. 1 II. SUMMARY OF THE ARGUMENT

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For 20 years or more, Defendant Seattle Children’s Hospital (SCH) knew that its hospital

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and its operating rooms were infected with Aspergillus mold but concealed this fact from its

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patients and the public until November of 2019. At that time SCH began a “damage control”,

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public relations campaign following the deaths of multiple children who were infected with

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Aspergillus at its Sandpoint hospital. SCH’s CEO Jeff Sperring announced at a press conference

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that six patients died between 2001 and 2019 and 14 total patients were infected over that time.

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When asked why the hospital had not disclosed this information before, he said:

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At the time we believed that these were isolated incidents, we now believe that these infections were likely caused by the air handling system that served our operating rooms…Looking back, we should have made the connection sooner. Simply put, we failed."

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The evidence obtained to date (and as alleged in the Complaint) shows that SCH’s

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admission was neither complete nor truthful. To this day Aspergillus mold contamination runs

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rampant at its hospital, exposing SCH patients to a significant threat of harm. The class action

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vehicle in this premises liability and medical negligence case will be the most effective way to

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now hold SCH fully accountable. For at least two decades, SCH exposed every Plaintiff and every

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Plaintiffs’ counsel are highly competent attorneys with many years’ experience prosecuting class actions, aggregate suits and mass torts. See Declaration of Brad J. Moore. SCH cannot legitimately challenge the adequacy of class counsel.

PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION - 2 STRITMATTER KESSLER

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KOEHLER MOORE 3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777

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Class Member to serious injury and death by failing to adequately address and remediate a known

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Aspergillus contamination within SCH’s HVAC system.

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III. STATEMENT OF THE FACTS AND THE CASE

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A.

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By at least August of 2000, SCH knew or should have known of its Aspergillus problem

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given internal communication outlining ongoing and systemic problems with the maintenance of

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Legal and Factual Background Relevant to this Motion

the air-handling system at SCH. During 2002 and 2003, internal communication and concerns raised by a professional engineering consultant prove that SCH knew of numerous problems with its air-handling system and the serious risk to its patient population. The list of identified problems at SCH included a formal maintenance program, water leaks, plugged drains, standing water, plugged intake screens, live and dead birds in fan shafts, leaking coils, overall filthy condition of all air handling units, lack of organized blue prints of HVAC system, under-qualified and understaffed Building and Engineering Department, misallocation of monies from the Building and Engineering Department and failure to test air handling units to determine if operating as designed.

Through prior litigation initiated in 2005, SCH was well-aware of the direct link between inadequate maintenance of SCH’s air-handling system and transmission of Aspergillus mold into

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SCH. In 2008, SCH settled that prior litigation on condition of confidentiality. By invoking

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secrecy and in other ways, SCH took active steps to hide from the public the existence of

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Aspergillus mold having spread throughout SCH’s air-handling system. Based upon the evidence

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discovered in the prior litigation, SCH knew or should have known by at least August 2000 that

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its negligent failure to provide safe premises directly caused the transmission of Aspergillus to its

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vulnerable child patients. Not until November of 2019 did SCH notify the public, its doctors,

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nurses, or its patients or their parents that there were problems with the maintenance of its air-

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PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION - 3

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777

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handling system. Even when hospitalized child patients became sickened by Aspergillus, SCH

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concealed its culpability.

IV. STATEMENT OF THE ISSUE

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Whether a class should be certified, taking into account (1) the impracticality of joinder of

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all members of the class, (2) common questions of law or fact, (3) typical or common defenses,

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and (4) the representativeness of the individuals suing; as well as (5) whether injunctive relief

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pursuant to CR 23(b)(2) may be necessary. See Wash. Educ. Assn. v. Shelton Sch. Dist., 93 Wn.2d

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783, 789 (1980), interpreting CR 23(a) and CR 23(b)(2).

V. EVIDENCE RELIED UPON

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This motion relies on the following evidentiary materials: (A) Declaration of Brad J. Moore; (B) Declaration of Karen K. Koehler; and (C) the pleadings in this case.

VI. ARGUMENT

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A.

Plaintiffs Satisfy the Requirements of CR 23(a)

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“CR 23 is liberally interpreted because the rule avoids multiplicity of litigation, saves

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members of the class the cost and trouble of filing individual suits, and also frees the defendant

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from the harassment of identical future litigation.” Moeller v. Farmers Ins. Co. of Wash., 173

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Wn.2d 264, 278 (2011). “A primary function of the class suit is to provide a procedure for

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vindicating claims which, taken individually, are too small to justify individual legal action but

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which are of significant size and importance if taken as a group.” Smith v. Behr Process Corp.,

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113 Wn. App. 306, 318-19 (2d Div. 2002). And since a class is subject to later modification or

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decertification, “the trial court should err in favor of certifying the class,” and such a decision

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should not be reversed except for an abuse of discretion. Moeller at 278, 280.

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PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION - 4

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777

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A CR 23(b)(3) class action is superior to other available methods for the fair and efficient

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adjudication of this case. Absent a class action, many Class Members would likely find the cost

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of litigating their individual claims prohibitively high and would therefore have no effective

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remedy at law. Some Class Members’ claims (in terms of damages) may be relatively smaller than

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other claims (compared to the cost of litigation). As a result, Plaintiffs fear that some, if not many,

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class members who are entitled to money damages given SCH’s egregious conduct will forego

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meritorious legal redress. Absent a certified CR 23(b)(3) class action, Class Members will not

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realize justice and SCH will get a “pass” for its misconduct.

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Class treatment of common questions of law and fact is superior to other available

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procedures, such as multiple individual actions or piecemeal litigation because class treatment will

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conserve the resources of the courts and the litigants and will promote consistency and efficiency

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of adjudication.

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B.

The Class is so Numerous that Joinder of all Members is Impracticable

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A class of hundreds of persons is sufficiently numerous to be certified as a class. See

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Hickey v City of Seattle, 236 F.R.D. 659, 664-65 (W.D. Wash. 2006) (class of 128-200 individuals

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was sufficiently numerous). In this instance, there are hundreds if not thousands of class members

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who were exposed and sickened by exposure to Aspergillus at SCH. 2

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C.

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“[T]here is a low threshold to satisfy” the test of commonality, which “is qualitative rather

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than quantitative, that is, there need be only a single issue common to all class members.” Smith,

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113 Wn. App. at 320. A common question is a “contention” that is “of such a nature that it is

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capable of class-wide resolution—which means that determination of its truth or falsity will

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There is a Question of Law or Fact Common to all Class Members

Thus far, SCH has refused to identify the names or number of patients treated at SCH over the relevant class period.

PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION - 5 STRITMATTER KESSLER

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KOEHLER MOORE 3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777

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resolve an issue that is central to the validity of each one of the claims in one stroke… What

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matters is … the capacity of a class-wide proceeding to generate common answers apt to drive the

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resolution of the litigation.” Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2451, 2550 (2011).

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There are multiple questions of law and fact common to the Plaintiff class representatives

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and each class member, all of which can be proven against SCH over the relevant class period by

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the evidence that currently exists:

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1.

SCH failed to reasonably inspect its air-handling system;

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2.

SCH failed to reasonably maintain its air-handling system;

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3.

SCH failed to reasonably repair or replace components of its air-handling system

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including, but not limited to, HVAC, filtration, plenum, gasketing, and sealing;

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4.

SCH failed to reasonably maintain air pressurization for business invitee safety;

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5.

SCH increased the risk of harm and failed to reasonably protect against it through

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construction activities; 6.

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dust, pollen, insects, and rodents; 7.

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8.

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SCH failed to exercise reasonable care to protect its child patient business invitees from injury;

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SCH failed to take reasonable precautions to eliminate the risk of Aspergillus transmission from its air-handling system to its child patient business invitees;

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SCH breached its duty to take reasonably prudent measures to prevent Aspergillus mold from infecting Plaintiff and each Class member in the SCH hospital;

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SCH failed to reasonably protect business invitees against infection vectors such as

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SCH breached its duty of care to its child patient business invitees to inspect, repair, safeguard or warn of Aspergillus contamination in its hospital;

PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION - 6

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777

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11.

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SCH concealed the existence of chronic Aspergillus contamination in its hospital from the public between 2000 and 2019; and

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SCH engaged in unfair and deceptive practices by holding itself out and soliciting

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business as the safest and best children’s hospital in the region, when the air quality

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of its patients’ private residences was safer than SCH’s premises.

D.

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The Claims of the Representative Plaintiffs are Typical of the Claims of the Class Members

“Typicality is satisfied if the claim arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and if [the representatives’] claims are based on the same legal theory.” Pellino v. Brink’s, Inc., 164 Wn. App. 668, 684 (1st Div. 2011). The Plaintiffs’ claims here are typical of the claims of each Class Member in that the Plaintiffs’ children sought compassion and care at SCH to safely and effectively treat their illnesses -- and a safe and sanitary place to receive it. Instead, the Plaintiffs and each Class Member unknowingly encountered a hospital swarming with Aspergillus mold infestation, resulting in avoidable suffering and death. The Plaintiffs and every Class Member (by definition) have profoundly suffered because of the SCH’s administration’s indifference and inaction. The legal claims and factual foundations of SCH’s misconduct here are applicable to the Plaintiffs and each Class Member and represent a common thread of misconduct resulting in suffering and death.

E.

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The Representative Plaintiffs Will Adequately Represent the Interests of the Class 3

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Where a proposed class representative possesses the same interest as the class and has

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suffered the same injury as class members, he or she meets the adequacy requirement. Cf. Beattie

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SCH cannot legitimately challenge the adequacy of the class representatives because each class representative earnestly desires that every member of the class recovers full compensation resulting from SCH’s tortious conduct and are not in competition with or adverse to one another. See, e.g., DeFunis v. Odegaard 529 P.2d 438 (Wash.

1974).

PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION - 7 STRITMATTER KESSLER

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KOEHLER MOORE 3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777

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v. CenturyTel, Inc., 511 F.3d 554, 562 (6th Cir. 2007). Indeed, where there is no conflict of interest

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and the plaintiffs are poised to vigorously prosecute on behalf of the class through the retention of

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experienced counsel, he or she may serve as the class representative. Id.

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Plaintiffs here are members of the Class (viz., parents of children who sought treatment at

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SCH and contracted Aspergillus mold-related illnesses resulting in personal injury); and they have

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the same interests as other class members (viz., holding SCH accountable for its tortious conduct

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as alleged in the Complaint). Plaintiffs affirm their commitment to the vigorous prosecution of

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this case through discovery and trial and have retained counsel experienced in class action

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litigation. See Declaration of Brad J. Moore; see also Declaration of Karen K. Koehler.

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F.

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There are numerous questions of law and fact, including those related to SCH’s knowledge,

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conduct, and legal duties throughout the events described in the Complaint, common to each

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Plaintiff and each Class Member that predominate over any question affecting only individual

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Class Members (e.g., individual damages), the answers to which will advance resolution of the

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litigation as to all Class Members. These common legal and factual issues include:

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Predominance of Common Issues

1. SCH’s failure to take reasonable measures to prevent Aspergillus from infecting each Plaintiff and each Class Member over the past twenty years; 2. SCH’s failure to remediate Aspergillus contamination on its premises over the past twenty years to the present;

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3. SCH’s failure to ensure its HVAC system was free of Aspergillus contamination;

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4. SCH’s concealment from each Plaintiff and each Class Member (and the public at

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large) of Aspergillus contamination in SCH’s hospital.

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PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION - 8

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777

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G.

Superiority

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A CR 23(b)(3) class action is superior to other available methods for the fair and efficient

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adjudication of this case. Absent a class action, many Class Members would likely find the cost

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of litigating their individual claims prohibitively high and would therefore have no effective

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remedy at law. Some Class Members’ claims (in terms of damages) are relatively smaller than

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other claims (compared to the exorbitant cost of litigation). As a result, it is easy to conclude that

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many class members, who are entitled to money damages given SCH’s egregious conduct, will

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forego meritorious legal redress. Absent a certified 23(b)(3) class action, Class Members will not

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realize justice and SCH will get a “pass” for its misconduct.

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Class treatment of common questions of law and fact is superior to other available

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procedures, such as multiple individual actions or piecemeal litigation because class treatment will

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conserve the resources of the courts and the litigants and will promote consistency and efficiency

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of adjudication.

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II.

Plaintiffs Satisfy the Requirements of CR 23(b)(2)

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In contrast to a class certified pursuant to CR 23(b)(3), a class is properly certified under

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CR 23(b)(2) when the defendant has acted on grounds generally applicable to the class, such that

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final injunctive relief with respect to the class as a whole is appropriate. SCH has acted and refused

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to act on grounds generally applicable to the class – i.e., failing to fix, remediate and remove

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Aspergillus mold contamination from its HVAC system, thereby exposing them and a class of

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patients to the threat of harm. Injunctive relief is appropriate – i.e., an order requiring SCH to shut

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its doors until complete remediation of Aspergillus mold contamination can be secured and

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verified.

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PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION - 9

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777

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SCH may argue that the experiences of each plaintiff class representative present some

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factual differences. Such differences are immaterial because the purpose of an injunctive relief

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class is not to raise different factual grievances but to grant broad remedial relief.

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declaratory class action is not precluded even though consideration of the facts of the individual

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cases might be required. A declaratory judgment class pursuant to CR 23(b)(2) can easily be

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defined such that the declaratory relief sought would benefit all members of the class. Certainly,

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an injunction in place until satisfactory remediation occurs will benefit the entire class, including

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many current SCH patients who have little choice but to continue treatment at SCH.

Thus, a

VII. CONCLUSION

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This Court should grant Plaintiffs’ Motion for Class Certification pursuant to CR 23(b)(3),

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certify the Class, appoint Plaintiffs as Class Representatives, and appoint their counsel as Class

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Counsel. Alternatively, the Court should certify a declaratory judgment class pursuant to CR

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23(b)(2).

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DATED this 4th day of March, 2021.

I certify that this memorandum contains 2,637 words, in compliance with the Local Civil Rules.

STRITMATTER KESSLER KOEHLER MOORE /s/ Brad J. Moore Karen K. Koehler, WSBA#15325 Brad J. Moore, WSBA#21802 Co-Counsel for Plaintiffs and Class LAYMAN LAW FIRM /s/ John R. Layman John R. Layman, WSBA#13823 Co-counsel for Plaintiffs and Class

PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION - 10

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777

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CERTIFICATE OF SERVICE I certify that I served a copy of the foregoing document as follows: Jake Winfrey Todd Reichert Fain Anderson VanDerhoef Rosendahl O’Halloran Spillane, PLLC 701 Fifth Avenue, Suite 4750 Seattle, WA 98104 (206)749-0094 jake@favros.com todd@favros.com aleena@favros.com danielle@favros.com

U.S. Mail Fax Legal Messenger Electronic Delivery

Stephen M. Rummage Brad Fisher Rachel Herd Davis Wright Tremaine LLP 920 Fifth Avenue, Suite 3300 Seattle, WA 98104-1610 (206)622-3150 steverummage@dwt.com bradfisher@dwt.com rachelherd@dwt.com barbaramcadams@dwt.com erickamitterndorfer@dwt.com crystalmoore@dwt.com ross.siler@dwt.com

U.S. Mail Fax Legal Messenger Electronic Delivery

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DATED this 4th day of March, 2021. /s/ Cheryl Baldwin Cheryl Baldwin Paralegal

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PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION - 11

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777

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THE HONORABLE DEAN LUM DATE OF HEARING: March 17, 2021 TRIAL DATE: NOVEMBER 1, 2021

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SUPERIOR COURT OF WASHINGTON FOR KING COUNTY

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PATRICK WILLS, PERSONAL REPRESENTATIVE OF THE ESTATE OF AIDEN WILLS; WHITNEY STETTLER, a single person; CHRISTOPHER GUNNELL, PERSONAL REPRESENTATIVE OF THE ESTATE OF IAN GUNNELL; NORMA HERNANDEZ, PERSONAL REPRESENTATIVE OF THE ESTATE OF ANA CHRISTINA VENTURA HERNANDEZ; all on behalf of themselves and all others similarly situated,

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ORDER GRANTING PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION PROPOSED

Plaintiffs,

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No. 19-2-31648-9 SEA

v.

SEATTLE CHILDREN’S HOSPITAL, a nonprofit Washington Corporation,

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Defendant.

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THIS MATTER having come on regularly for hearing on Plaintiffs’ Motion for Class Certification, and the Court having considered the records and files herein, and having reviewed the following documents: 1.

Plaintiffs’ Motion to Motion for Class Certification;

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ORDER GRANTING PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION - 1

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777

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2.

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Certification;

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3.

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Certification;

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4.

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5.

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Declaration of Brad J. Moore in Support of Plaintiffs’ Motion for Class

Declaration of Karen K. Koehler in Support of Plaintiffs’ Motion for Class

The Court finds as follows:

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1.

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Being fully advised, now, therefore, it is hereby ORDERED, ADJUDGED and

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DECREED:

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1.

Plaintiffs’ Motion for Class Certification is GRANTED;

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2.

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DONE IN OPEN COURT this ____ day of March, 2021.

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Presented by:

_____________________________________ THE HONORABLE DEAN LUM

STRITMATTER KESSLER KOEHLER MOORE /s/ Brad J. Moore Karen K. Koehler, WSBA#15325 Brad J. Moore, WSBA#21802 Co-Counsel for Plaintiffs and Class LAYMAN LAW FIRM /s/ John R. Layman John R. Layman, WSBA#13823 Co-counsel for Plaintiffs and Class ORDER GRANTING PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION - 2

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777