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News / Northwest

Washington to pay $3.1 million to settle suit in which state failed to turn over evidence

By Jim Brunner, The Seattle Times
Published: June 6, 2023, 8:49am

Washington state has agreed to pay more than $3 million to settle a lawsuit over alleged severe neglect at an adult family home — on top of more than $300,000 in penalties levied by a judge for wrongful withholding of evidence.

The settlement, announced by Attorney General Bob Ferguson’s office on Monday, will pay $3,125,000 to plaintiff Emily Tobin, a woman with developmental disabilities who was allegedly neglected after being placed by the state at an adult family home in Kent.

The settlement — which would also halt a court-ordered probe into the state’s handling of evidence — requires court approval before it becomes final.

The Tobin case made headlines after King County Superior Court Judge Michael Ryan slammed the Attorney General’s Office and the Department of Social and Health Services for an “egregious” and “cavalier” failure to turn over thousands of pages of records to Tobin’s attorneys.

Ryan fined the state $200,000 in March for its conduct and added another $122,555 in attorney’s fees in a May order.

Those penalties were imposed after the Attorney General’s Office acknowledged that it had withheld some 11,000 pages of records relevant to the lawsuit while trying to get it dismissed. More recently, the state admitted that it had found another 100,000 pages of additional documents it needed to turn over.

As part of his sanctions order, Ryan also required the state to pay $500 an hour for Seattle attorney Russell Aoki to act as a court-appointed “discovery master.” Aoki was empowered to investigate whether the attorney general’s office or DSHS had concealed any additional records. He was authorized to conduct interviews and hire a forensic computer expert.

But under the terms of the settlement agreement, that inquiry will be suspended. “The [settlement] is contingent on the Court’s agreement that the Discovery Master will be discharged,” the agreement states.

The state has received one bill from Aoki for $21,815 for work through April 28, Brionna Aho, a spokesperson for the attorney general’s office, said in an email. Asked about the settlement ending Aoki’s probe, Aho said continuing his work “would result in significant additional expense.”

David Moody, an attorney representing Tobin, said in a statement, “Emily is grateful to the Court” for starting to hold the attorney general’s office accountable.

“Evidence matters. The Office of the Attorney General hid evidence and offered nothing to resolve Emily’s case. After the Court forced the Office of the Attorney General to cough up the evidence, the [office] agreed to resolve the case for more than $3 million,” Moody said, calling the conduct “a stain” on the AG’s office “that reaches the highest level.”

In a statement issued through his office Monday, Ferguson took responsibility for the errors. “AG Ferguson recognizes that the buck stops with him. Discovery sanctions are unacceptable,” said the statement emailed by Aho.

The settlement agreement says the entire $3.125 million settlement will be entered as a judgment against the state of Washington, but that the state and the adult family home owners will “between themselves, determine how much money each will contribute to the settlement.”

The spotlight on the lawsuit and discovery violations have arrived at a politically inopportune time for Ferguson, a Democrat who has launched a well-funded gubernatorial campaign to succeed Gov. Jay Inslee.

The statement from Ferguson’s office said that “the issues that led to the sanctions” show a need for better communication between the AG’s office and DSHS, and noted that some of the problems arose when an attorney went on parental leave.

“We are reviewing our discovery protocols to determine what changes are appropriate. AG Ferguson is overseeing a review. A personnel investigation is ongoing,” the statement added.

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The AG’s office previously pulled Seth Dickey, the main assistant attorney general assigned to the case, off of it and assigned a new legal team.

The underlying lawsuit filed in November 2021 alleged “negligent care and treatment” of Tobin by the state and the Ayasha Adult Family Home in Kent.

Tobin, who is in her 20s, requires constant care. After her mother died in 2020, she was placed at the Kent home by DSHS.

The agency paid the home, run by a married couple, $94.82 per day, plus an extra $25 a day to ensure Tobin had her own room.

But, within months of Tobin moving in, DSHS received “clear signs about ownership and management failures” at the home, including that Tobin had been moved into a shared room in order to free up the single room for a resident paying cash, according to the lawsuit.

DSHS did not intervene or report the home for taking extra Medicaid money while not providing 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 claims the home failed to monitor Tobin’s diet, frequently feeding her “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.

Tobin also was not helped enough with basic hygiene, leading other residents of the home to mock her as “stinky” and having “mental issues,” the lawsuit claims.

An attorney representing Ayasha Adult Family Home previously denied the lawsuit’s allegations in a statement, saying Tobin had graduated from a high-school transition program while living there “and was provided quality care during the height of the COVID-19 pandemic.”

Tobin’s guardians removed her from the home in May 2021.

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