Wynn v. Earin , 163 Wash. 2d 361 ( 2008 )

¶53 (concurring) — I agree with the majority that Pardner Wynn effectively waived his statutory and malpractice claims relating to Jolene Earin’s testimony. Majority at 383. I write separately because, in my view, Mr. Wynn’s waivers render much of the majority opinion unnecessary.

Chambers, J.

¶54 Mr. and Ms. Wynn were involved in an emotional dissolution, in which the placement of their children was in dispute. One of Mr. Wynn’s claims involved a conversation between Ms. Earin and the children’s guardian ad litem, Dr. Kim Chupurdia, PhD. Mr. Wynn claims confidential information was divulged by Ms. Earin which caused him harm. However, Mr. Wynn had specifically authorized Ms. Earin to provide otherwise confidential information to Dr. Chupurdia.⁶ At Ms. Earin’s deposition, Mr. Wynn, through counsel, also specifically waived any claim of privilege. At the hearing to determine child placement, Mr. Wynn was present with counsel and made no objection to Ms. Earin’s testimony based upon any claim of confidentiality or violation of the Health Care Information Act, chapter 70.02 RCW. I concur with the majority that when a person is a party to a hearing and present at a proceeding where testimony is offered, the party is obligated to object to the disclosure of confidential information or any claim based upon a claim of confidentiality may be waived.

¶55 I also write to emphasize that our opinion today largely concerns the truthful testimony of a witness in response to direct questions. Priests, lawyers, doctors, counselors, and others are still prohibited from disclosing sacred privileges. Nothing in our opinion today necessarily applies to documents, including affidavits and declarations. Nor do we purport to hold that a witness may disclose the confidences of a person not a party to the proceedings or not present at the proceeding.

¶56 With these observations, and because I conclude that Mr. Wynn waived his statutory and malpractice claims, I concur in the result.

Sanders, J., concurs with Chambers, J.

Reconsideration denied July 10, 2008.

6 I am mindful that Ms. Earin did not have the release signed by Mr. Wynn before her when she talked to Dr. Chupurdia, hut the jury must have concluded that such a technical failure was not the proximate cause of any harm to Mr. Wynn.