The state attorney general's office and Department of Social and Health Services have been fined $200,000 — and face the prospect of forking over hundreds of thousands of dollars more in legal fees — for what a judge called "egregious" and "cavalier" withholding of evidence in an ongoing lawsuit.
King County Superior Court Judge Michael Ryan, in a March 21 ruling, ordered the fine as a "severe sanction" for the state failing to turn over nearly 11,000 pages of records to attorneys suing over the alleged neglect of a developmentally disabled woman at an adult family home in Kent.
"The discovery violations in this case are egregious, severe, without excuse and the result of willful disregard of discovery obligations by both DSHS" and the attorney general's office, Ryan wrote in his scathing 12-page order.
The $200,000 penalty is just the start of the state's legal woes — and cost to taxpayers — in the lawsuit.
The attorney general's office admitted it recently discovered an additional 100,000 pages of records that had been wrongfully withheld, according to court filings.
Ryan's ruling put the state on the hook to pay the legal fees for the plaintiff's attorneys.
Attorneys with the Seattle law firm Hagens Berman, in a motion Friday, calculated the state should pay the firm $214,000. A hearing on the fees is set for next week.
The price could grow, as it does not count the time Hagens Berman attorneys will spend reviewing the recently turned over 100,000 pages.
In addition, Ryan on April 11 appointed Seattle attorney Russell Aoki as a "discovery master" in the case, charging him with investigating the discovery violations and determining whether the state has hidden any more documents.
Aoki will be paid $500 an hour, billed to the state. He is authorized to interview employees of the attorney general's office and DSHS and to hire a forensic computer expert — also at state expense — and will draft a detailed report on his findings.
The increasingly costly legal blunders have come to light as Attorney General Bob Ferguson launches his long-anticipated run for governor, in which the three-term Democrat is touting his experience leading the AG's office since 2013. The penalties and withholding of documents in the case were first reported by McClatchy.
In an April 3 letter to Ryan disclosing the new batch of relevant documents, Deputy Attorney General Jennifer Meyer wrote that the state "deeply regrets the errors in discovery in this case and is working to rectify them."
Among the records belatedly turned over to the plaintiff's attorneys were emails in which a DSHS case manager appeared to laugh at reports that the woman was being severely neglected at the home, writing "LOL" in emails about the situation.
Last year, while those and other records were being withheld, the attorney general's office sought to have the lawsuit dismissed — and tried to prevent Hagens Berman from questioning DSHS about whether it had more records.
Attorneys for the plaintiff declined to comment for this article, citing the ongoing probe by Aoki.
"While the investigation is taking place, we will not provide any statements," James Chong, the primary Hagens Berman attorney on the case, said in an email.
However, David Moody, senior counsel at Hagens Berman, noted in a February court declaration this isn't the first time the attorney general's office and DSHS have been sanctioned for failing to hand over relevant evidence.
"There is a well-established pattern of discovery abuses. The pattern has become a habit," Moody wrote, citing previous sanctions imposed against the state, some dating back decades.
In 2017, for example, the state was fined $100,000 plus $17,000 in attorney's fees for discovery violations in a lawsuit against DSHS. Even after that order, Moody wrote, violations continued, leading to an additional $20,000 sanction.
In 2016, the state was fined nearly $789,000 in punitive damages for destroying email exchanges by state-paid experts in a lawsuit over the 2014 Oso landslide that killed 43 people. The state paid $50 million to settle the case.
The attorney general's office, in court filings, has said the state did not intentionally withhold the documents in the latest lawsuit.
Brionna Aho, a spokesperson for the attorney general's office, said in an email to The Seattle Times: "For context, our office has more than 30 different legal divisions handling criminal and civil matters across the state and in the federal system. At any given time, we are handling approximately 20,000 active cases."
She said attorneys receive training on their discovery obligations when they're hired and additional trainings are offered at least once a year.
Aho, citing longstanding policy, declined to say whether Seth Dickey, the assistant attorney general assigned to the case, or others involved, had been disciplined. She confirmed Dickey remains employed.
Dickey withdrew from representing the state in the case in an April 5 court filing, and Meyer wrote in her letter she'd assigned a "new litigation team."
In handing down sanctions, Ryan wrote that the violation of discovery rules was "tantamount to intentional withholding" because it fell so below the standards of diligence required of the DSHS and the attorney general's office.
"The Court is at a complete loss to understand how a large State agency, and the largest law firm in the State, could be so cavalier with respect to their discovery obligations and how such a large amount of responsive material could be overlooked and simply ignored," Ryan wrote.
His also lambasted the state for trying to pin blame on a paralegal, writing "the buck stops with counsel."
The underlying lawsuit, alleging "negligent care and treatment," was filed in November 2021 against the state and the adult family home on behalf of Emily Tobin, a woman in her 20s with profound developmental disabilities.
Tobin was cared for by her mother, with support from the state, until her mother died unexpectedly in 2020. Tobin then was placed by DSHS at Ayasha Adult Family Home in Kent.
The agency paid the home, run by a married couple out of the basement of their house, $94.82 per day, plus an extra $25 to ensure Tobin had her own bedroom, which she needed due to severe anxiety, the lawsuit states.
But, within months of Tobin moving in, DSHS "began to receive clear signs about ownership and management failures" at the home, including that Tobin had quickly been moved into a shared room — a move made to free up the single room for a resident paying cash, according to the lawsuit.
DSHS didn't intervene or report the home for taking extra Medicaid money while failing to provide the single room. "Instead, DSHS just kept paying Ayasha Adult Family Home without ensuring Emily was actually receiving the required services," the lawsuit says.
The lawsuit also alleges the home failed to monitor Tobin's diet, knowing she did not exercise and was prone to overeating.
On a given day "it was not uncommon for Ayasha Adult Family Home to feed Emily: six waffles for breakfast; two grilled-cheese sandwiches, a serving of macaroni and cheese and Coca-Cola for lunch; chicken nuggets and macaroni and cheese for dinner; and a third grilled-cheese sandwich for a snack in the evening," the lawsuit says. She gained 50 pounds in a year.
The food served to Tobin was "sometimes rotting or moldy," the lawsuit adds.
The home also failed to adequately help Tobin with basic hygiene, and allowed her to sleep all day and miss school, leading other residents to mock her as "stinky" and having "mental issues."
Despite reports of such concerns by her guardians, including her grandmother, DSHS did not make any reports of abuse or neglect and for many months did not visit the home, the lawsuit says.
"As a result of DSHS's failures and Ayasha Adult Family Home's neglect, Emily's health and safety were compromised, her quality of life spiraled downward, and her emotional health cratered," the lawsuit alleges.
Tobin's guardians removed her from the home in May 2021.
Steven Wraith, an attorney representing Ayasha Adult Family Home, denied the lawsuit's claims against the home.
In an email, Wraith said Tobin graduated from a high school transition program while living there "and was provided quality care during the height of the COVID-19 pandemic."
"Ms. Tobin's guardian approved all services provided to Ms. Tobin and Ayasha Adult Family Home met all of its statutory obligations regarding Ms. Tobin's care. DSHS investigated all of the claims alleged in this lawsuit and found none of Ms. Tobin's allegations were supported by the facts," Wraith wrote.
Jessica Nelson, a DSHS spokesperson, said in an email the agency could not discuss the allegations in the lawsuit. But Nelson said the agency has taken no enforcement action and has issued no fines against the home, which remains licensed and operating.
DSHS staff have conducted investigations in the home based on complaints reported to the agency and "found at the time of each investigation the home was following minimum licensing requirements," Nelson wrote.
A trial is set for December.
