Judge Doubts Ethnicity Questions Deserve Jury Bias Probe

By Rachel Riley | June 7, 2024, 8:07 PM EDT ·

A Washington appellate judge pushed back Friday against a Filipino family who claimed a hospital's questions about their ethnicity at trial required a bias inquiry, noting race is "something that can't be ignored" in any courtroom filled with people who look different from one another.

Washington residents Ron and Shella Simbulan urged a three-judge panel for the Washington Court of Appeals to affirm a state trial court's order for a hearing to determine whether racial bias was a factor in the loss of their negligence case against Northwest Hospital & Medical Center over the death of their newborn child. While the couple contends that defense counsel invoked harmful stereotypes when questioning the plaintiffs about their family history, the hospital argues its attorneys only briefly touched on the topic to address their damages requests, which included loss of consortium.

But Judge Lori Smith questioned Friday how the points raised by the plaintiffs — for example, the mention of their ethnicity or their use of an interpreter — were enough to satisfy the standards for a special hearing.

"We live in a world where even though race is a social construct, it's something that's influencing all of us, all the time, with all the decisions that we're making," Judge Smith said during oral arguments. "It's something that can't be ignored when people are sitting in a courtroom looking physically different from one another."

"So here we are in this world, and someone is an immigrant — that means different things to all of us. That doesn't mean it affected the verdict," Judge Smith told the couple's counsel. "So how do we get from there to, 'This needs a hearing.'?"

William T. McClure of Pfau Cochran Vertetis Amala PLLC, representing the Simbulans, responded that it's up to the judge who presided over the trial to determine whether an objective observer could see the potential for improper bias to affect the jury's decision.

McClure said there's a difference between mere acknowledgment of race and "spinning it or using it in a way that could invoke implicit bias."

The couple maintains defense counsel did the latter at trial by drawing a contrast between their family living arrangements and that of a traditional nuclear family, pointing out the time they spent living in separate countries before the wife followed the husband to the United States and emphasizing language barriers, according to an appellate brief.

Seeking to preserve the favorable verdict, the hospital has argued that the trial judge abused discretion by ordering the hearing based on the mere number of times that the Philippines were mentioned.

Catherine Wright Smith of Smith Goodfriend PS, representing the hospital, emphasized that the issue was first raised by the plaintiffs in opening arguments and only came up in defense counsel's questions when relevant to the damages claims.

"These neutral references by both parties to the plaintiffs' ethnicity could not have had the effect — and there's no analysis by the judge that suggests they had any effect — on the liability determination, which is as far as the jury got," Smith said.

Judge Cecily Hazelrigg made the point that, had the trial attorneys involved minimized the mention of cultural differences, they'd run the risk of taking a "colorblind approach" that could result in an "erasure of culture where it may actually matter" and a "failure to recognize people's lived experiences."

But Judge Hazelrigg also questioned whether certain word choice by the defense while questioning the plaintiffs' witnesses may have opened the door for potential othering of the plaintiffs by juror. She cited the example of referring to the Simbulans' use of Tagalog as "their" language instead of just "another language" or referring to it by name.

"If pronouns of that sort show some sort of implicit bias, we're never going to have final decisions," Smith replied.

Judges Lori Smith, Cecily Hazelrigg and David Mann sat on the panel for the Washington Court of Appeals.

The Simbulans are represented by William T. McClure, Thomas B. Vertetis and Elizabeth P. Calora of Pfau Cochran Vertetis Amala PLLC.

The hospital is represented by Catherine Wright Smith and Howard Mark Goodfriend of Smith Goodfriend PS and Miranda Kathryn Aye and Aida Babahmetovic of Johnson Graffe Keay Moniz & Wick LLP.

The case is Shella Simbulan et al. v. Northwest Hospital & Medical Center, number 851144-4-I, in the Washington Court of Appeals, Division I.

--Editing by Dave Trumbore.

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