Today's arguments - February 8, 2011
Today the Court will hear four arguments, two criminal cases in the morning and two malpractice cases in the afternoon. (Docket, briefs)
Morning session (9:00 a.m.)
State v. Kosewicz, No. 83682-5. Whether the reversal of a kidnapping charge also requires reversal of murder charges based on the same circumstances.
Sebastian Esquibel was involved in a drug deal that went bad. He was tied up, tortured, driven to a field and shot. Robert Brown and Theodore Kosewicz were both involved, and both were convicted of first degree kidnapping. Brown was also convicted of felony murder and Kosewicz was convicted of aggravated first degree murder aggravated by the kidnapping.
The trial court instructed the jury on alternative means of committing kidnapping even though the defendant was not charged with an alternative means. As a result, both kidnapping convictions were reversed on appeal. The defendants argue that Brown’s felony murder conviction and the aggravation of Kosewicz’ murder conviction should be reversed, since both were based on the kidnapping convictions. The state argues that there is sufficient evidence to support both, and that the elements of the kidnapping are not elements of the felony murder (and thus, Brown did not need to be informed of them for the felony murder conviction to be valid).
In re the Detention of Danforth, No. 841527. Whether a sex offender who tells police that he will commit a sex crime if not detained has committed a "recent overt act" allowing him to be committed as a sexually violent predator.
Robert Danforth is a sex offender with a history of offenses against young boys, including rape. In 2006 he went to the King County Sheriff's Office and said that he was going to reoffend unless he was taken into custody. He said that if he was not confined he would go to a bus stop and try to have sex with boys, and also that he would go to an arcade where young boys were and “rub up against them.” He was taken into custody and committed as a sexually violent predator. This required proof that he was currently dangerous “with evidence of a recent overt act.” Overt acts can include some threats.
Danforth argues that his statements were not “threats” because his motive was to prevent harm, not cause it, and that using his statements against him would violate his free speech rights under the First Amendment. The appellate court held that his statements were a threat, irrespective of motive. The court also found not First Amendment violation “because the threats must be evaluated in the context of the offender's conduct... the statute does not regulate pure speech.”
Afternoon session (1:30 pm)
Mohr v. Grantham, No. 847126. Whether a plaintiff can sue for medical malpractice
based on a claim of "lost chance for a better outcome."
Linda Mohr was taken to the emergency room with a developing stroke. Mohr claims that the doctors were negligent in diagnosing and treating her. She also claims that, had the negligence not occurred, there is a 50-60% chance that the stroke would have harmed her less severely.
The trial court granted summary judgment to the defendants because Mohr did not prove that without the alleged negligence her injuries would have been less bad. Mohr claims that she can sue for “lost chance of a better outcome.”
Unruh v. Cacchiotti, No. 847070. Whether a dental malpractice lawsuit was filed too late, after the statute of limitations had run.
Lisa Unruh was treated with braces by orthodontist Dino Cacchiotti, beginning when she was nine years old. Lisa alleges that because of the braces she lost all of her adult teeth disputes that he breached a proper standard of care). Unruh claims that Dr. Cacchiotti was negligent in treating her and filed a lawsuit against him in 2007.
A dental malpractice suit must be filed within a year of the plaintiff discovering the cause of action. Dr. Cacchiotti claims that Unruh knew of her cause of action long before she filed, and her claim is thus barred by the statute of limitations. Unruh argues that she thought her teeth fell out due to physiological reasons, and did not learn until 2006 that Dr. Cacchiotti could be to blame. She also argues that the one-year limit was paused for a year when she requested mediation.
UPDATE: Changed first paragraph to note that Unruh alleges that the braces caused her teeth to fall out. No court has ruled that Dr. Cacchiotti actually breached the proper standard of care, and that issue is not up on appeal.
