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Andrew P. Walsh

Of Counsel

andy.walsh@wilsonelser.com
Birmingham, ALp. 205.709.8982

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Wilson Elser Bolsters Southern Region with Team of Eight Lateral Attorneys in Jackson, Mississippi, and Birmingham, Alabama

June 27, 2019

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Meer Quoted in Law360 on Insurance Coverage Implications of Binance Hack
Jonathan Meer (Partner-New York, NY) was quoted in the article “Binance Mega-Hack Confirms Cyberinsurance Industry Fears,” appearing in the November 5, 2026, edition of Law360. The article discusses how the massive $6.3 billion cryptocurrency theft from Binance has raised questions about the insurance industry's ability to cover losses stemming from large-scale cyberattacks, particularly those attributed to state-sponsored actors. Insurance experts are examining potential coverage limitations, including war exclusions and policy restrictions, as well as the challenges of insuring significant digital asset holdings. Jonathan, interviewed among other industry experts, emphasizes the magnitude of the exposure, noting, “Six billion is a very large number, and I don't think there's any sort of insurance tower that goes anywhere near such a figure.” He also weighs in on how the method used to compromise Binance's systems could influence future underwriting practices and insurers' assessment of cyber risks.
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Publications
Navigating Ex Parte Contact with Health Care Providers in Medical Malpractice Litigation
In Snyder v. Virginia Mason Medical Center, No. 104136-5 (Wash. Oct. 1, 2026), the Washington Supreme Court held that corporate defense counsel, risk managers, and claims adjusters may not communicate ex parte with a hospital’s former employee health care providers about patient care. The Court reaffirmed Loudon v. Mhyre, 110 Wn.2d 675, 756 P.2d 138 (1988) prohibiting ex parte communication by defense counsel with a plaintiff’s treating physicians, held that prejudice is presumed when Loudon is violated, and ruled that a quality improvement (QI) committee member’s involvement in defense strategy waives the committee’s statutory privilege under Wash. Rev. Code § 70.41.200. As a result, informal contact with former employee providers should stop, and factual inquiries should proceed through formal discovery under Wash. Super. Ct. Civ. R. 30 or 31. This article explains how Snyder fits within Washington’s patient confidentiality and corporate privilege framework, how it applies to different categories of providers, and what hospitals and their counsel should do now. Patient Confidentiality vs. Corporate Privilege To navigate the procedural boundaries governing medical malpractice defense in Washington, practitioners must understand the fundamental statutory tension between a patient’s right to health care confidentiality and an institution's right to confer with corporate counsel. Under Washington's Uniform Health Care Information Act, health care providers and their agents are strictly prohibited from disclosing health information without explicit written authorization, except as otherwise provided by law. Wash. Rev. Code § 70.02.020; State v. Scherf, 192 Wn.2d 350, 387, 431 P.3d 976, 995 (2018); King v. Riveland, 125 Wn.2d 500, 509, 886 P.2d 160, 165 (1994). This privacy right is reinforced by Washington's statutory physician-patient privilege, which protects treating physicians from being compelled to testify regarding medical information acquired while attending a patient. Wash. Rev. Code § 5.60.060(4). While a patient automatically waives this statutory privilege upon filing a personal injury or medical malpractice lawsuit under Wash. Rev. Code § 5.60.060(4)(b), the Washington Supreme Court has consistently held that this waiver is not absolute. In Loudon v. Mhyre, 110 Wn.2d 675, 678, 756 P.2d 138, 140 (1988), the Court established a bright-line prohibition against defense counsel engaging in private, ex parte communications with a plaintiff’s treating physicians. The Loudon rule safeguards the fiduciary doctor-patient relationship, prevents inadvertent disclosure of irrelevant medical records, and eliminates the risk of turning defense attorneys into potential trial witnesses. Loudon, 110 Wn.2d at 682, 756 P.2d at 142; Smith v. Orthopedics Int'l, Ltd., 170 Wn.2d 659, 666, 244 P.3d 939, 942–43 (2010). On the corporate side, health care facilities rely on corporate attorney-client privilege to conduct internal risk investigations. Wash. Rev. Code § 5.60.060(2)(a); Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S. Ct. 677, 682, 66 L. Ed. 2d 584 (1981). However, in Newman v. Highland School District No. 203, 186 Wn.2d 769, 381 P.3d 1188 (2016), the Washington Supreme Court established a strict temporal boundary on corporate privilege, holding that privilege does not extend to post-employment communications with former employees: “The underlying purpose of the corporate attorney-client privilege is to foster full and frank communications between counsel and the client (i.e., the corporation), not its former employees... This purpose is preserved by limiting the scope of the privilege to the duration of the employer-employee relationship.” Newman, 186 Wn.2d at 781, 381 P.3d at 1193 (quoting Restatement (Third) of the Law Governing Lawyers § 73 cmt. e (Am. L. Inst. 2000)). Evolution of Provider Contact Rules: Current vs. Former Personnel How does one reconcile corporate attorney-client privilege with the Loudon doctrine? The Supreme Court addressed this conflict in Youngs v. PeaceHealth, 179 Wn.2d 645, 664, 316 P.3d 1035, 1045 (2014), carving out a narrow exception allowing corporate defense counsel to conduct confidential ex parte interviews with a nonparty treating physician who is a current employee of the hospital, provided those communications are limited strictly to the facts surrounding the alleged negligent incident. In Hermanson v. MultiCare Health System, Inc., 196 Wn.2d 578, 581, 475 P.3d 484, 487 (2020), the Court extended this principle to current non-physician staff and current independent contractors who are the functional equivalents of employees. However, when a treating provider leaves the facility's employ, the legal landscape shifts dramatically across four distinct provider categories: Current Employee Providers: Fully covered under the Youngs exception. Corporate defense counsel may conduct privileged, ex parte interviews with active employee physicians, nurses, and staff, provided the conversation is confined to the facts of the alleged negligent incident and does not delve into general medical history. Youngs v. PeaceHealth, 179 Wn.2d at 671. Current Independent Contractors: Covered under Hermanson where an agency or functional equivalent relationship exists. If an independent contractor doctor acts as an agent of the facility, corporate counsel may confer ex parte under the same strict factual constraints of Youngs. Hermanson v. MultiCare Health Sys., Inc., 196 Wn.2d at 589–90. Former Employee Providers (Including C-Suite Officers & Owners): Governed strictly by Newman and Snyder. The moment a provider separates from employment, it instantly extinguishes corporate attorney-client privilege over ongoing trial preparation. Because former employees no longer owe agency duties, defense counsel cannot conduct ex parte interviews with former staff regarding patient care under any circumstances. Snyder v. Virginia Mason Med. Ctr., slip op. at 28–29. Quality Improvement (QI) Committee Members: Subject to statutory peer-review immunity under Wash. Rev. Code § 70.41.200(3). While records prepared for QI committees are immune from discovery, committee members must be strictly screened from litigation defense teams. If a QI member participates in active trial strategy or ex parte witness preparation, statutory peer-review privilege is completely forfeited. Snyder, slip op. at 38–39. The Snyder Decision: Presumed Harm, Privilege Logs, and QI Waiver In Snyder v. Virginia Mason Medical Center, No. 104136-5, slip op. (Wash. Oct. 1, 2026) (En Banc), the Washington Supreme Court resolved lingering uncertainties by establishing three definitive holdings that fundamentally reshape medical malpractice litigation. 1. Rejection of Defense Exceptions and Affirmance of Loudon The Supreme Court affirmed that Loudon applies strictly to former employee health care providers, regardless of whether their care forms the primary basis of the hospital's alleged vicarious liability. In doing so, the Court explicitly rejected a series of defense theories: Representation Agreements & Indemnity Contracts: Private employment contracts requiring former doctors to cooperate in litigation defense cannot override statutory patient privacy rights under Wash. Rev. Code § 70.02.020 or physician-patient privilege under Wash. Rev. Code § 5.60.060(4). Hermanson, 196 Wn.2d at 590 n.1; Snyder, slip op. at 25–26. Common Interest / Joint Defense Theories: Shared legal exposure does not authorize defense counsel to conduct ex parte trial strategy sessions with former employee providers or their separate attorneys. Smith v. Orthopedics Int'l, Ltd., 170 Wn.2d at 668; Snyder, slip op. at 27–28. Inapplicability of Youngs: The Court confirmed that the fiduciary doctor-patient relationship survives employment termination, placing former employee providers strictly beyond the reach of the Youngs current-employee exception. Snyder, slip op. at 28–29. 2. Magaña and the Presumption of Prejudice Crucially, the Supreme Court disavowed its prior decision in Magaña v. Hyundai Motor America, 167 Wn.2d 570, 220 P.3d 191 (2009), which required plaintiffs to prove substantial litigation prejudice to obtain discovery sanctions. Holding that ex parte contacts inherently damage the fiduciary doctor-patient relationship, the Court established that prejudice is presumed upon demonstrating a Loudon violation. Snyder, slip op. at 33–34. To evaluate appropriate sanctions—ranging from monetary fines to entering a default judgment on liability—the Supreme Court extended Cedell v. Farmers Insurance Co. of Washington, 176 Wn.2d 686, 295 P.3d 239 (2013), ordering the trial court to conduct an in-camera inspection of all withheld defense privilege log entries generated during unauthorized ex parte contacts. Snyder, slip op. at 35–36. 3. Subject-Matter Waiver of Quality Improvement Immunity Under Wash. Rev. Code § 70.41.200(3), hospital Quality Improvement committee proceedings are confidential. However, in Snyder, the Chief Medical Officer sat on the hospital’s statutory QI committee while simultaneously receiving litigation talking points from defense counsel, coordinating witness outreach, and traveling ex parte to meet with a former resident physician. The Supreme Court held that failing to ethically screen a QI committee member from active litigation strategy taints the committee's inner workings, effecting a complete subject-matter waiver of statutory peer-review privilege. Snyder, slip op. at 38–39. Real-World Realities: Memory Decay, Pre-Litigation Holds, and Sophistication At the end of the day, modern institutional health care delivery renders determining the exact composition of a patient's treatment team—and whether defense counsel is legally permitted to speak with any given provider—an exercise in pure guesswork. It has long been complicated for patients and health systems to figure out who their doctor is in a complex clinical environment involving rotating resident physicians, attending specialists, hospitalists, and independent contractors. Yet, now no one seems to know who the doctor might not be and whether defense counsel should be speaking to them behind closed doors. By establishing an unyielding temporal boundary that severs corporate attorney-client privilege the exact moment an employee separates from service, Newman, 186 Wn.2d at 781, and Snyder, slip op. at 20, 28–29, creates an unworkable practical fiction. In effect, this rigid rule generates an absurd practical presumption: that no health care practitioner can ever retire, relocate, or transition employment if any remote possibility of future litigation may ensue. This jurisprudence fundamentally neglects two operational realities of medical malpractice defense: the necessity of pre-litigation risk investigations and the natural fading of human memory. When an adverse clinical outcome occurs, risk management must investigate immediately to evaluate institutional exposure. While an institution can readily issue electronic litigation holds to preserve health records, paper charts, and audit trails, it is impossible to ask a human witness to hold onto their unrefreshed memories. While interviewing a witness when a facility first learns of a potential claim is straightforward, months or even years frequently elapse between the medical event, the formal filing of a lawsuit, and the procedural opportunity for defense counsel to deploy formal discovery rules under Wash. Super. Ct. Civ. R. 30 or CR 31. Expecting a treating physician to maintain vivid, detailed recollections of a single procedure performed years earlier—without the benefit of informal factual debriefs with risk management—defies human memory and litigation reality. Finally, this line of authority improperly presumes a uniform, strict sophistication across all health care facilities. Snyder presumes that every community hospital, rural health clinic, and small practice group maintains the extensive legal infrastructure, ethical screening walls, and specialized claims teams of a major academic medical center. By imposing strict liability sanctions and an automatic presumption of prejudice for ex parte contacts regardless of actual litigation harm (Snyder, slip op. at 33–34), the Court penalizes health care entities for standard risk management inquiries while ignoring the operational realities of modern medical practice. Specific Application Cases: C-Suite, Mid-Suit Separation, and Dual Roles A. Former C-Suite Executives, Board Members, and Physician-Owners A frequent point of defense confusion is whether a physician’s former status as a C-suite executive (e.g., Chief Medical Officer), board member, or equity owner exempts them from Loudon. Under Washington law, the extent of corporate privilege coverage depends entirely upon temporal status and the subject matter of the communication. This includes: Pre-Separation Corporate Governance Communications (COVERED): Confidential communications made during active executive, board, or ownership tenure regarding hospital administration, risk management, or general business operations remain protected by the entity's attorney-client privilege under Upjohn Co. v. United States, 449 U.S. 383, 391 (1981) and Wash. Rev. Code § 5.60.060(2)(a). Post-Separation Patient Care Communications (NOT COVERED): Once employment, board tenure, or equity ownership severs, corporate attorney-client privilege terminates. Newman, 186 Wn.2d at 781. Reaffirming Newman, the Supreme Court in Snyder, slip op. at 20, 28–29 held that former executive or ownership status creates no exception to Loudon. Because former C-suite physicians and owners no longer possess agency authority or ongoing duties of loyalty to the entity, defense counsel cannot engage in post-separation ex parte trial preparation regarding patient care provided by that physician. B. Mid-Litigation Employment Termination If a treating physician’s employment terminates during active medical malpractice litigation, corporate attorney-client privilege over ongoing trial preparation instantly evaporates at the moment of separation. Under Newman and Snyder, corporate defense counsel is strictly barred from conducting further ex parte strategy sessions with the departing physician, practically necessitating separate independent counsel for the physician to prevent per se Loudon violations and concurrent conflicts under Rule of Professional Conduct 1.7. C. Dual-Roled Physicians and Corporate PMK Designees Quality Improvement (QI) committee members represent one of the most perilous legal landmines for health care facilities under Snyder, slip op. at 38–39. Health care facilities face an inherent dilemma: the individuals best situated to serve as key corporate contacts or Person Most Knowledgeable (PMK) designees under Wash. Super. Ct. Civ. R. 30(b)(6)—such as CMOs or Medical Directors—are almost universally the exact same clinical leaders who sit on statutory QI committees. When a lawsuit emerges, institutions routinely rely on senior officers to investigate the incident and coordinate witness outreach. However, under Snyder, combining statutory peer-review functions with litigation defense strategy destroys the statutory privilege protecting the facility's Quality Improvement proceedings. To protect peer-review immunity, institutions ought to consider implementing proactive, pre-litigation organizational role separation: structurally dividing clinical governance so that high-level physicians on QI committees are permanently barred from acting as litigation claims liaisons or CR 30(b)(6) designees. Practical Compliance  To navigate the strict mandates of Snyder and protect case integrity, corporate defense counsel and health care risk managers must adopt three mandatory practice protocols: Conduct Factual Discovery Exclusively Through Formal Court Rules. Defense counsel must refrain from informal telephone calls, debriefs, or “support visits” with former employee providers. All factual inquiries must occur through formal oral depositions under Wash. Super. Ct. Civ. R. 30 or written depositions under Wash. Super. Ct. Civ. R. 31 upon formal notice to plaintiff's counsel. Strictly Prohibit Using Separate Counsel as a Conduit. If an insurer assigns separate independent counsel to represent a former employee provider under continuing indemnification duties, primary corporate counsel cannot pass trial briefs, expert reports, or strategy talking points ex parte to separate counsel. Smith v. Orthopedics Int'l, Ltd., 170 Wn.2d at 668; Snyder, slip op. at 27–28. Establish Proactive Pre-Litigation QI Ethical Walls. Health care facilities must structurally divide clinical governance so that high-level physicians who serve on statutory Quality Improvement peer-review committees are permanently barred from acting as corporate claims liaisons, risk defense managers, or corporate Person Most Knowledgeable (PMK) designees under CR 30(b)(6). Proactive ethical screening is essential to prevent subject-matter waiver of statutory peer-review immunity under Wash. Rev. Code § 70.41.200.
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News
Wilson Elser Recognized in 2027 Best Law Firms® Rankings
The Best Law Firms® has ranked 12 Wilson Elser practices across National Tiers and 21 local offices – totaling 33 rankings by practice – in Regional Tier 1. Wilson Elser Best Law Firms in America 2027: National Practice Areas  Tier 1: Commercial Litigation Construction Law Insurance Law Litigation - Construction Mass Tort Litigation/ Class Actions – Defendants  Transportation Law Tier 2: Admiralty and Maritime Law Litigation – Labor and Employment Tier 3: Appellate Practice Corporate Law Mergers and Acquisitions Law  Railroad Law Regional Practice Areas Tier 1 Personal Injury Litigation – Defendants: Birmingham, AL Insurance Law: Boston, MA Appellate Practice: Chicago, IL Insurance Law: Denver, CO Litigation – Construction: Denver, CO Litigation – Insurance: Denver, CO Insurance Law: Dallas/Fort Worth, TX Litigation – Insurance: Dallas/Fort Worth, TX Personal Injury Litigation – Defendants: Dallas/Fort Worth Medical Malpractice Law – Defendants: Houston, TX Personal Injury Litigation – Defendants: Houston, TX Product Liability Litigation – Defendants: Houston, TX Transportation Law: Houston, TX Litigation ‒ Insurance: Jackson, MS Personal Injury Litigation: Jackson, MS Legal Malpractice Law ‒ Defendants: Las Vegas, NV Insurance Law: Los Angeles, CA  Professional Malpractice Law – Defendants: Los Angeles, CA Litigation ‒ Health Care: Louisville, KY Medical Malpractice Law – Defendants: Louisville, KY Banking and Finance Law: Madison, NJ Commercial Litigation: Madison, NJ Insurance Law: Madison, NJ Legal Malpractice Law – Defendants: Madison, NJ Litigation – Insurance: Madison, NJ Product Liability Litigation – Defendants: Madison, NJ Professional Malpractice Law – Defendants: Madison, NJ Trusts and Estates: Madison, NJ Insurance Law: Milwaukee, WI Product Liability Litigation – Defendants: Milwaukee, WI Admiralty and Maritime Law: New Orleans, LA Commercial Litigation: New Orleans, LA Construction Law: New York, NY Litigation ‒ Construction: New York, NY Medical Malpractice Law – Defendants: New York, NY Professional Malpractice Law ‒ Defendants: New York, NY Commercial Litigation: Orlando, FL Personal Injury Litigation – Defendants: Orlando, FL Product Liability Litigation – Defendants: Orlando, FL Commercial Litigation: Portland, OR Insurance Law: Portland, OR Litigation ‒ Insurance: Portland, OR Personal Injury Litigation ‒ Defendants: Portland, OR Product Liability Litigation – Defendants: Portland, OR Professional Malpractice Law – Defendants: Portland, OR Commercial Litigation: San Diego, CA Personal Injury Litigation – Defendants: Seattle, WA Product Liability Litigation – Defendants: Seattle, WA Medical Malpractice Law – Defendants: Stamford, CT Mass Tort Litigation / Class Actions ‒ Defendants: Washington, DC Medical Malpractice Law – Defendants: Washington, DC Personal Injury Litigation ‒ Defendants: Washington, DC Product Liability Litigation ‒ Defendants: Washington, DC Medical Malpractice Law – Defendants: White Plains, NY Railroad Law: White Plains, NY Regional Practice Areas Tier 2 Commercial Litigation: Albany, NY Commercial Litigation: Atlanta, GA Professional Malpractice Law ‒ Defendants: Atlanta, GA  Product Liability Litigation – Defendants: Baltimore, MD Litigation – Environmental: Birmingham, AL Mass Tort Litigation/Class Actions – Defendants: Birmingham, AL Product Liability Litigation ‒ Defendants: Birmingham, AL Transportation Law: Birmingham, AL Litigation – Insurance: Boston, MA Personal Injury Litigation – Defendants: Boston, MA Litigation ‒ Insurance: Chicago, IL Mass Tort Litigation / Class Actions – Defendants: Chicago, IL Medical Malpractice Law ‒ Defendants: Chicago, IL Commercial Litigation: Dallas/Fort Worth, TX Legal Malpractice Law – Defendants: Dallas/Fort Worth, TX Professional Malpractice Law – Defendants: Dallas/Fort Worth, TX Construction Law: Denver, CO Product Liability Litigation ‒ Defendants: Denver, CO Litigation – Insurance: Detroit, MI Admiralty and Maritime Law: Houston, TX Commercial Litigation: Houston, TX Mass Tort Litigation / Class Actions ‒ Defendants: Houston, TX Commercial Litigation: Las Vegas, NV Product Liability Litigation – Defendants: Las Vegas, NV Aviation Law: Los Angeles, CA Commercial Litigation: Louisville, KY Insurance Law: Louisville, KY Litigation – Insurance: Louisville, KY Personal Injury Litigation – Defendants: Louisville, KY Corporate Law: Madison, NJ Health Care Law: Madison, NJ Insurance Law: New Orleans, LA Litigation – Labor and Employment: Philadelphia, PA Professional Malpractice Law – Defendants: Philadelphia, PA Health Care Law: Portland, OR Ethics and Professional Responsibility Law: San Diego, CA Commercial Litigation: San Francisco, CA Product Liability Litigation ‒ Defendants: San Francisco, CA Medical Malpractice Law ‒ Defendants: Seattle, WA Litigation ‒ Insurance: St. Louis, MO Insurance Law: Stamford, CT Litigation ‒ Insurance: Stamford, CT Employment Law ‒ Management: Washington, DC Insurance Law: Washington, DC Commercial Litigation: White Plains, NY Regional Practice Areas Tier 3 Product Liability Litigation – Defendants: Albany, NY Professional Malpractice Law ‒ Defendants: Albany, NY Litigation – Construction: Atlanta, GA Product Liability Litigation – Defendants: Atlanta, GA Professional Malpractice Law – Defendants: Baltimore, MD Product Liability Litigation ‒ Defendants: Boston, MA Personal Injury Litigation – Defendants: Charlotte, NC Insurance Law: Chicago, IL Appellate Practice: Dallas/Fort Worth, TX Aviation Law: Dallas/Fort Worth, TX Mass Tort Litigation / Class Actions ‒ Defendants: Dallas/Fort Worth, TX Personal Injury Litigation ‒ Defendants: Denver, CO Professional Malpractice Law – Defendants: Denver, CO Professional Malpractice Law ‒ Defendants: Detroit, MI Employment Law ‒ Management: Indianapolis, IN Health Care Law: Indianapolis, IN Litigation ‒ Health Care: Indianapolis, IN Professional Malpractice Law ‒ Defendants: Jackson, MS Commercial Litigation: Los Angeles, CA Corporate Governance Law: Los Angeles, CA Litigation ‒ Labor and Employment: Los Angeles, CA Mergers and Acquisitions Law: Los Angeles, CA Product Liability Litigation – Defendants: Louisville, KY Environmental Law: Madison, NJ Family Law Mediation: Madison, NJ Real Estate Law: Madison, NJ Insurance Law: Miami, FL Litigation – Insurance: Miami, FL Appellate Practice: Milwaukee, WI Litigation – Insurance: Milwaukee, WI Litigation – Environmental: New Orleans, LA Litigation ‒ Insurance: New Orleans, LA Litigation – Labor and Employment: New York, NY Insurance Law: Philadelphia, PA Product Liability Litigation ‒ Defendants: Philadelphia, PA Litigation ‒ Labor and Employment: Portland, OR Legal Malpractice Law – Defendants: San Diego, CA Litigation – Labor and Employment: San Diego, CA Medical Malpractice Law ‒ Defendants: San Diego, CA Insurance Law: San Francisco, CA Personal Injury Litigation - Defendants: San Francisco, CA Commercial Litigation: Seattle, WA Commercial Litigation: Tampa, FL Best Lawyers in America is universally regarded as the definitive guide to legal excellence. Best Lawyers awards are compiled based on an exhaustive peer-review evaluation. More than 97,000 industry-leading lawyers worldwide are eligible to vote, evaluating the legal abilities of other lawyers based on their specific practice areas.
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Events
Stress, Bias, and Mental Wellbeing in the Legal Profession: The Unique Challenges of Women Lawyers and a Path Forward
Kathleen Wilkinson (Senior Counsel-Philadelphia) will moderate the panel “Stress, Bias, and Mental Wellbeing in the Legal Profession: The Unique Challenges of Women Lawyers and a Path Forward,” for an ABA Commission on Women in the Profession webinar on November 18, 2026. The webinar will present findings from the Commission’s groundbreaking research examining the state of mental well-being among lawyers with particular emphasis on the unique challenges women face across demographic groups and career stages. The program provides insight into how stress, bias, and workplace experiences uniquely affect women lawyers compared to their male counterparts, explores the implications for the legal profession, and offers actionable recommendations for employers, leaders, and practitioners seeking to foster healthier, more inclusive legal workplaces. 
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Events
Defamation and Trade Libel Exposure
Adam R. Bialek (Partner-New York, NY) and John P. Cahill (Associate-White Plains, NY) will present the Wilson Elser Forum webinar “Defamation and Trade Libel Exposure” on November 17, 2026. This session examines defamation and trade libel exposure in the digital age, focusing on online publishing, social media, review platforms, and brand communications. The program reviews the legal elements of libel, slander, and product disparagement; critical distinctions between statements of fact and opinion; the actual malice standard; and the per se categories that presume damages. Particular attention is given to how these doctrines apply in commercial contexts, including competitor disputes, negative online reviews, influencer campaigns, and corporate communications that may implicate rivals or their products. Also explored are key defenses and immunities, including Section 230 of the Communications Decency Act; truth/substantial truth, opinion, and rhetorical hyperbole; fair report privilege; and anti-SLAPP statutes. The presenters also address anonymous online speakers, cross-border jurisdictional disputes, and offer practical guidance for claims professionals on evaluating exposure and damages, retraction statutes, litigation privilege, and insurance coverage issues affecting claim severity and resolution.
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Publications
Law.com Features Espey Article Examining New Jersey Case Law on Preexisting Conditions in Medical Malpractice Cases
Peter Espey (Of Counsel-Madison, NJ) authored “Struggling with 'Scafidi'? A Brief Overview of Caselaw on Preexisting Conditions in Medical Malpractice Cases,” published in the November 6, 2026, edition of the New Jersey Law Journal on Law.com. The article examines the evolution of New Jersey case law on preexisting conditions in medical malpractice cases, focusing on the landmark Scafidi v. Seiler decision. Peter reviews several significant rulings that have shaped how courts evaluate causation, increased risk of harm, and the apportionment of damages when a patient's preexisting condition may have contributed to an injury or adverse outcome. He explains when a Scafidi jury charge is appropriate, which party bears the burden of establishing apportionment, and the challenges plaintiffs face in proving that medical negligence caused additional harm. As Peter notes, determining responsibility can be particularly complex when a patient's health was already compromised before receiving treatment. The article explores how courts seek to balance a plaintiff's right to recover for malpractice-related harm with protecting defendants from liability for outcomes that were unavoidable or attributable to preexisting conditions. “This complex body of case law will continue to evolve with new fact patterns and advances in healthcare.” 
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Client Wins
Baiocco Secures Defense Verdict for Construction Vehicle Seller/Manufacturer Client
Joseph Baiocco (Partner-White Plains, NY) secured a defense verdict in the Supreme Court of the State of New York, Queens County, on behalf of Wilson Elser’s client, a heavy-duty lifting equipment manufacturer. In this matter involving trucking and construction equipment litigation, Joe successfully argued against the plaintiff’s alleged negligence claims and resolved a complex contractual ownership issues. Following a three-week trial, the jury ruled in our client’s favor and dismissed all claims.
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Client Wins
Wilson and Merritt Secure Dismissal in Federal Court for Insurance Brokerage Client
Daryl Wilson (Of Counsel-Phoenix, AZ) and Nicholas Merritt (Associate-Phoenix, AZ) obtained summary judgment in the U.S. District Court for the District of Arizona for Wilson Elser’s client, an insurance brokerage. The plaintiff, an delivery company partner operating approximately 30 trucks, sued our client after its commercial auto policy was canceled for non-payment in September 2023 and not reinstated. The insurer and wholesale broker were previously dismissed by stipulation, leaving our client as the sole defendant. The plaintiff asserted negligent misrepresentation and declaratory relief claims, seeking business interruption, payroll, and increased substitute coverage costs. The misrepresentation claim rested on the broker's alleged statement that paying the remaining premium would reinstate the policy. Daryl and Nicholas moved for summary judgment on both claims. After oral argument, the court granted the motion in full. On the negligent misrepresentation claim, the court found no evidence that our client made any false statement. It also held that the economic loss doctrine independently barred the claim because the losses were purely economic and arose from the policy our client had been hired to procure. The court also rejected the plaintiff's late attempt to advance a new theory through an expert report, finding that the report lacked supporting facts, the theory had not been pleaded, and the alleged statement was made to the insurer ‒ not to the plaintiff ‒ so the plaintiff could not have relied on it. The court also rejected all three requests for declaratory relief. It found that a declaration concerning the dismissed wholesale broker’s duties would resolve no dispute between the remaining parties, that apportionment of damages was meaningless with only one defendant remaining, and that the requested declaration concerning a duty to disclose rested on the same failed theory underlying the misrepresentation claim. Judgment was entered for our client, and the case was closed.
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Events
Southeast Employment Law Update: “Hot” Updates in Employment Law You Need to Know
Christina M. Heischmidt (Partner-McLean, VA), Daniel E. Gonzalez (Of Counsel-Miami, FL), and Lauren Stadler (Associate-McLean, VA) will present the Wilson Elser Forum webinar “Southeast Employment Law Update: “Hot” Updates in Employment Law You Need to Know” on November 12, 2026. The weather in the Southeast is still heating up, and so are regional employment laws. Join us for a presentation about key employment law updates, including an overview of significant state and federal employment law developments across the Southeast, including Maryland, Virginia, West Virginia, North Carolina, South Carolina, Florida, Georgia, and Alabama. This session evaluates recent case law, legislative changes, and emerging trends, highlighting practical considerations for employers and insurance adjusters in assessing employment-related risks and claims.
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Publications
Law360 Publishes Adam and Taylor Bialek on Continuing Legal Risks of Promotional Email Marketing
Adam Bialek (Partner-New York, NY) and Taylor Bialek (Associate-New York, NY) coauthored the article “Washington Email Law Still Puts Marketers at Litigation Risk,” published in the October 30, 2026, edition of Law360. The article examines the growing legal risks associated with promotional email marketing following the Washington Supreme Court’s decision in Brown v. Old Navy LLC, which expanded the state’s Commercial Electronic Mail Act (CEMA) to cover misleading email subject lines. Although a recent legislative amendment reduces potential damages and makes liability harder to establish, the authors explain that businesses remain exposed to class actions and statutory damages when promotional subject lines overstate discounts, create artificial urgency, or misrepresent limited-time offers. They caution that “After Brown, subject lines are front-line compliance claims, and CAN-SPAM compliance alone will not eliminate state law, class action and reputational risk.” Adam and Taylor further highlight why businesses should make marketing governance an operational priority before their next email campaign, offering practical safeguards, including reviewing subject lines as standalone claims, establishing clear approval procedures, monitoring third-party vendors, and maintaining documentation to support promotional representations.
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News
Wilson Elser Recognized in 2027 Best Law Firms® Rankings
The Best Law Firms® has ranked 12 Wilson Elser practices across National Tiers and 21 local offices – totaling 33 rankings by practice – in Regional Tier 1. Wilson Elser Best Law Firms in America 2027: National Practice Areas  Tier 1: Commercial Litigation Construction Law Insurance Law Litigation - Construction Mass Tort Litigation/ Class Actions – Defendants  Transportation Law Tier 2: Admiralty and Maritime Law Litigation – Labor and Employment Tier 3: Appellate Practice Corporate Law Mergers and Acquisitions Law  Railroad Law Regional Practice Areas Tier 1 Personal Injury Litigation – Defendants: Birmingham, AL Insurance Law: Boston, MA Appellate Practice: Chicago, IL Insurance Law: Denver, CO Litigation – Construction: Denver, CO Litigation – Insurance: Denver, CO Insurance Law: Dallas/Fort Worth, TX Litigation – Insurance: Dallas/Fort Worth, TX Personal Injury Litigation – Defendants: Dallas/Fort Worth Medical Malpractice Law – Defendants: Houston, TX Personal Injury Litigation – Defendants: Houston, TX Product Liability Litigation – Defendants: Houston, TX Transportation Law: Houston, TX Litigation ‒ Insurance: Jackson, MS Personal Injury Litigation: Jackson, MS Legal Malpractice Law ‒ Defendants: Las Vegas, NV Insurance Law: Los Angeles, CA  Professional Malpractice Law – Defendants: Los Angeles, CA Litigation ‒ Health Care: Louisville, KY Medical Malpractice Law – Defendants: Louisville, KY Banking and Finance Law: Madison, NJ Commercial Litigation: Madison, NJ Insurance Law: Madison, NJ Legal Malpractice Law – Defendants: Madison, NJ Litigation – Insurance: Madison, NJ Product Liability Litigation – Defendants: Madison, NJ Professional Malpractice Law – Defendants: Madison, NJ Trusts and Estates: Madison, NJ Insurance Law: Milwaukee, WI Product Liability Litigation – Defendants: Milwaukee, WI Admiralty and Maritime Law: New Orleans, LA Commercial Litigation: New Orleans, LA Construction Law: New York, NY Litigation ‒ Construction: New York, NY Medical Malpractice Law – Defendants: New York, NY Professional Malpractice Law ‒ Defendants: New York, NY Commercial Litigation: Orlando, FL Personal Injury Litigation – Defendants: Orlando, FL Product Liability Litigation – Defendants: Orlando, FL Commercial Litigation: Portland, OR Insurance Law: Portland, OR Litigation ‒ Insurance: Portland, OR Personal Injury Litigation ‒ Defendants: Portland, OR Product Liability Litigation – Defendants: Portland, OR Professional Malpractice Law – Defendants: Portland, OR Commercial Litigation: San Diego, CA Personal Injury Litigation – Defendants: Seattle, WA Product Liability Litigation – Defendants: Seattle, WA Medical Malpractice Law – Defendants: Stamford, CT Mass Tort Litigation / Class Actions ‒ Defendants: Washington, DC Medical Malpractice Law – Defendants: Washington, DC Personal Injury Litigation ‒ Defendants: Washington, DC Product Liability Litigation ‒ Defendants: Washington, DC Medical Malpractice Law – Defendants: White Plains, NY Railroad Law: White Plains, NY Regional Practice Areas Tier 2 Commercial Litigation: Albany, NY Commercial Litigation: Atlanta, GA Professional Malpractice Law ‒ 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Liability Litigation – Defendants: Louisville, KY Environmental Law: Madison, NJ Family Law Mediation: Madison, NJ Real Estate Law: Madison, NJ Insurance Law: Miami, FL Litigation – Insurance: Miami, FL Appellate Practice: Milwaukee, WI Litigation – Insurance: Milwaukee, WI Litigation – Environmental: New Orleans, LA Litigation ‒ Insurance: New Orleans, LA Litigation – Labor and Employment: New York, NY Insurance Law: Philadelphia, PA Product Liability Litigation ‒ Defendants: Philadelphia, PA Litigation ‒ Labor and Employment: Portland, OR Legal Malpractice Law – Defendants: San Diego, CA Litigation – Labor and Employment: San Diego, CA Medical Malpractice Law ‒ Defendants: San Diego, CA Insurance Law: San Francisco, CA Personal Injury Litigation - Defendants: San Francisco, CA Commercial Litigation: Seattle, WA Commercial Litigation: Tampa, FL Best Lawyers in America is universally regarded as the definitive guide to legal excellence. Best Lawyers awards are compiled based on an exhaustive peer-review evaluation. More than 97,000 industry-leading lawyers worldwide are eligible to vote, evaluating the legal abilities of other lawyers based on their specific practice areas.
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Navigating Ex Parte Contact with Health Care Providers in Medical Malpractice Litigation
In Snyder v. Virginia Mason Medical Center, No. 104136-5 (Wash. Oct. 1, 2026), the Washington Supreme Court held that corporate defense counsel, risk managers, and claims adjusters may not communicate ex parte with a hospital’s former employee health care providers about patient care. The Court reaffirmed Loudon v. Mhyre, 110 Wn.2d 675, 756 P.2d 138 (1988) prohibiting ex parte communication by defense counsel with a plaintiff’s treating physicians, held that prejudice is presumed when Loudon is violated, and ruled that a quality improvement (QI) committee member’s involvement in defense strategy waives the committee’s statutory privilege under Wash. Rev. Code § 70.41.200. As a result, informal contact with former employee providers should stop, and factual inquiries should proceed through formal discovery under Wash. Super. Ct. Civ. R. 30 or 31. This article explains how Snyder fits within Washington’s patient confidentiality and corporate privilege framework, how it applies to different categories of providers, and what hospitals and their counsel should do now. Patient Confidentiality vs. Corporate Privilege To navigate the procedural boundaries governing medical malpractice defense in Washington, practitioners must understand the fundamental statutory tension between a patient’s right to health care confidentiality and an institution's right to confer with corporate counsel. Under Washington's Uniform Health Care Information Act, health care providers and their agents are strictly prohibited from disclosing health information without explicit written authorization, except as otherwise provided by law. Wash. Rev. Code § 70.02.020; State v. Scherf, 192 Wn.2d 350, 387, 431 P.3d 976, 995 (2018); King v. Riveland, 125 Wn.2d 500, 509, 886 P.2d 160, 165 (1994). This privacy right is reinforced by Washington's statutory physician-patient privilege, which protects treating physicians from being compelled to testify regarding medical information acquired while attending a patient. Wash. Rev. Code § 5.60.060(4). While a patient automatically waives this statutory privilege upon filing a personal injury or medical malpractice lawsuit under Wash. Rev. Code § 5.60.060(4)(b), the Washington Supreme Court has consistently held that this waiver is not absolute. In Loudon v. Mhyre, 110 Wn.2d 675, 678, 756 P.2d 138, 140 (1988), the Court established a bright-line prohibition against defense counsel engaging in private, ex parte communications with a plaintiff’s treating physicians. The Loudon rule safeguards the fiduciary doctor-patient relationship, prevents inadvertent disclosure of irrelevant medical records, and eliminates the risk of turning defense attorneys into potential trial witnesses. Loudon, 110 Wn.2d at 682, 756 P.2d at 142; Smith v. Orthopedics Int'l, Ltd., 170 Wn.2d 659, 666, 244 P.3d 939, 942–43 (2010). On the corporate side, health care facilities rely on corporate attorney-client privilege to conduct internal risk investigations. Wash. Rev. Code § 5.60.060(2)(a); Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S. Ct. 677, 682, 66 L. Ed. 2d 584 (1981). However, in Newman v. Highland School District No. 203, 186 Wn.2d 769, 381 P.3d 1188 (2016), the Washington Supreme Court established a strict temporal boundary on corporate privilege, holding that privilege does not extend to post-employment communications with former employees: “The underlying purpose of the corporate attorney-client privilege is to foster full and frank communications between counsel and the client (i.e., the corporation), not its former employees... This purpose is preserved by limiting the scope of the privilege to the duration of the employer-employee relationship.” Newman, 186 Wn.2d at 781, 381 P.3d at 1193 (quoting Restatement (Third) of the Law Governing Lawyers § 73 cmt. e (Am. L. Inst. 2000)). Evolution of Provider Contact Rules: Current vs. Former Personnel How does one reconcile corporate attorney-client privilege with the Loudon doctrine? The Supreme Court addressed this conflict in Youngs v. PeaceHealth, 179 Wn.2d 645, 664, 316 P.3d 1035, 1045 (2014), carving out a narrow exception allowing corporate defense counsel to conduct confidential ex parte interviews with a nonparty treating physician who is a current employee of the hospital, provided those communications are limited strictly to the facts surrounding the alleged negligent incident. In Hermanson v. MultiCare Health System, Inc., 196 Wn.2d 578, 581, 475 P.3d 484, 487 (2020), the Court extended this principle to current non-physician staff and current independent contractors who are the functional equivalents of employees. However, when a treating provider leaves the facility's employ, the legal landscape shifts dramatically across four distinct provider categories: Current Employee Providers: Fully covered under the Youngs exception. Corporate defense counsel may conduct privileged, ex parte interviews with active employee physicians, nurses, and staff, provided the conversation is confined to the facts of the alleged negligent incident and does not delve into general medical history. Youngs v. PeaceHealth, 179 Wn.2d at 671. Current Independent Contractors: Covered under Hermanson where an agency or functional equivalent relationship exists. If an independent contractor doctor acts as an agent of the facility, corporate counsel may confer ex parte under the same strict factual constraints of Youngs. Hermanson v. MultiCare Health Sys., Inc., 196 Wn.2d at 589–90. Former Employee Providers (Including C-Suite Officers & Owners): Governed strictly by Newman and Snyder. The moment a provider separates from employment, it instantly extinguishes corporate attorney-client privilege over ongoing trial preparation. Because former employees no longer owe agency duties, defense counsel cannot conduct ex parte interviews with former staff regarding patient care under any circumstances. Snyder v. Virginia Mason Med. Ctr., slip op. at 28–29. Quality Improvement (QI) Committee Members: Subject to statutory peer-review immunity under Wash. Rev. Code § 70.41.200(3). While records prepared for QI committees are immune from discovery, committee members must be strictly screened from litigation defense teams. If a QI member participates in active trial strategy or ex parte witness preparation, statutory peer-review privilege is completely forfeited. Snyder, slip op. at 38–39. The Snyder Decision: Presumed Harm, Privilege Logs, and QI Waiver In Snyder v. Virginia Mason Medical Center, No. 104136-5, slip op. (Wash. Oct. 1, 2026) (En Banc), the Washington Supreme Court resolved lingering uncertainties by establishing three definitive holdings that fundamentally reshape medical malpractice litigation. 1. Rejection of Defense Exceptions and Affirmance of Loudon The Supreme Court affirmed that Loudon applies strictly to former employee health care providers, regardless of whether their care forms the primary basis of the hospital's alleged vicarious liability. In doing so, the Court explicitly rejected a series of defense theories: Representation Agreements & Indemnity Contracts: Private employment contracts requiring former doctors to cooperate in litigation defense cannot override statutory patient privacy rights under Wash. Rev. Code § 70.02.020 or physician-patient privilege under Wash. Rev. Code § 5.60.060(4). Hermanson, 196 Wn.2d at 590 n.1; Snyder, slip op. at 25–26. Common Interest / Joint Defense Theories: Shared legal exposure does not authorize defense counsel to conduct ex parte trial strategy sessions with former employee providers or their separate attorneys. Smith v. Orthopedics Int'l, Ltd., 170 Wn.2d at 668; Snyder, slip op. at 27–28. Inapplicability of Youngs: The Court confirmed that the fiduciary doctor-patient relationship survives employment termination, placing former employee providers strictly beyond the reach of the Youngs current-employee exception. Snyder, slip op. at 28–29. 2. Magaña and the Presumption of Prejudice Crucially, the Supreme Court disavowed its prior decision in Magaña v. Hyundai Motor America, 167 Wn.2d 570, 220 P.3d 191 (2009), which required plaintiffs to prove substantial litigation prejudice to obtain discovery sanctions. Holding that ex parte contacts inherently damage the fiduciary doctor-patient relationship, the Court established that prejudice is presumed upon demonstrating a Loudon violation. Snyder, slip op. at 33–34. To evaluate appropriate sanctions—ranging from monetary fines to entering a default judgment on liability—the Supreme Court extended Cedell v. Farmers Insurance Co. of Washington, 176 Wn.2d 686, 295 P.3d 239 (2013), ordering the trial court to conduct an in-camera inspection of all withheld defense privilege log entries generated during unauthorized ex parte contacts. Snyder, slip op. at 35–36. 3. Subject-Matter Waiver of Quality Improvement Immunity Under Wash. Rev. Code § 70.41.200(3), hospital Quality Improvement committee proceedings are confidential. However, in Snyder, the Chief Medical Officer sat on the hospital’s statutory QI committee while simultaneously receiving litigation talking points from defense counsel, coordinating witness outreach, and traveling ex parte to meet with a former resident physician. The Supreme Court held that failing to ethically screen a QI committee member from active litigation strategy taints the committee's inner workings, effecting a complete subject-matter waiver of statutory peer-review privilege. Snyder, slip op. at 38–39. Real-World Realities: Memory Decay, Pre-Litigation Holds, and Sophistication At the end of the day, modern institutional health care delivery renders determining the exact composition of a patient's treatment team—and whether defense counsel is legally permitted to speak with any given provider—an exercise in pure guesswork. It has long been complicated for patients and health systems to figure out who their doctor is in a complex clinical environment involving rotating resident physicians, attending specialists, hospitalists, and independent contractors. Yet, now no one seems to know who the doctor might not be and whether defense counsel should be speaking to them behind closed doors. By establishing an unyielding temporal boundary that severs corporate attorney-client privilege the exact moment an employee separates from service, Newman, 186 Wn.2d at 781, and Snyder, slip op. at 20, 28–29, creates an unworkable practical fiction. In effect, this rigid rule generates an absurd practical presumption: that no health care practitioner can ever retire, relocate, or transition employment if any remote possibility of future litigation may ensue. This jurisprudence fundamentally neglects two operational realities of medical malpractice defense: the necessity of pre-litigation risk investigations and the natural fading of human memory. When an adverse clinical outcome occurs, risk management must investigate immediately to evaluate institutional exposure. While an institution can readily issue electronic litigation holds to preserve health records, paper charts, and audit trails, it is impossible to ask a human witness to hold onto their unrefreshed memories. While interviewing a witness when a facility first learns of a potential claim is straightforward, months or even years frequently elapse between the medical event, the formal filing of a lawsuit, and the procedural opportunity for defense counsel to deploy formal discovery rules under Wash. Super. Ct. Civ. R. 30 or CR 31. Expecting a treating physician to maintain vivid, detailed recollections of a single procedure performed years earlier—without the benefit of informal factual debriefs with risk management—defies human memory and litigation reality. Finally, this line of authority improperly presumes a uniform, strict sophistication across all health care facilities. Snyder presumes that every community hospital, rural health clinic, and small practice group maintains the extensive legal infrastructure, ethical screening walls, and specialized claims teams of a major academic medical center. By imposing strict liability sanctions and an automatic presumption of prejudice for ex parte contacts regardless of actual litigation harm (Snyder, slip op. at 33–34), the Court penalizes health care entities for standard risk management inquiries while ignoring the operational realities of modern medical practice. Specific Application Cases: C-Suite, Mid-Suit Separation, and Dual Roles A. Former C-Suite Executives, Board Members, and Physician-Owners A frequent point of defense confusion is whether a physician’s former status as a C-suite executive (e.g., Chief Medical Officer), board member, or equity owner exempts them from Loudon. Under Washington law, the extent of corporate privilege coverage depends entirely upon temporal status and the subject matter of the communication. This includes: Pre-Separation Corporate Governance Communications (COVERED): Confidential communications made during active executive, board, or ownership tenure regarding hospital administration, risk management, or general business operations remain protected by the entity's attorney-client privilege under Upjohn Co. v. United States, 449 U.S. 383, 391 (1981) and Wash. Rev. Code § 5.60.060(2)(a). Post-Separation Patient Care Communications (NOT COVERED): Once employment, board tenure, or equity ownership severs, corporate attorney-client privilege terminates. Newman, 186 Wn.2d at 781. Reaffirming Newman, the Supreme Court in Snyder, slip op. at 20, 28–29 held that former executive or ownership status creates no exception to Loudon. Because former C-suite physicians and owners no longer possess agency authority or ongoing duties of loyalty to the entity, defense counsel cannot engage in post-separation ex parte trial preparation regarding patient care provided by that physician. B. Mid-Litigation Employment Termination If a treating physician’s employment terminates during active medical malpractice litigation, corporate attorney-client privilege over ongoing trial preparation instantly evaporates at the moment of separation. Under Newman and Snyder, corporate defense counsel is strictly barred from conducting further ex parte strategy sessions with the departing physician, practically necessitating separate independent counsel for the physician to prevent per se Loudon violations and concurrent conflicts under Rule of Professional Conduct 1.7. C. Dual-Roled Physicians and Corporate PMK Designees Quality Improvement (QI) committee members represent one of the most perilous legal landmines for health care facilities under Snyder, slip op. at 38–39. Health care facilities face an inherent dilemma: the individuals best situated to serve as key corporate contacts or Person Most Knowledgeable (PMK) designees under Wash. Super. Ct. Civ. R. 30(b)(6)—such as CMOs or Medical Directors—are almost universally the exact same clinical leaders who sit on statutory QI committees. When a lawsuit emerges, institutions routinely rely on senior officers to investigate the incident and coordinate witness outreach. However, under Snyder, combining statutory peer-review functions with litigation defense strategy destroys the statutory privilege protecting the facility's Quality Improvement proceedings. To protect peer-review immunity, institutions ought to consider implementing proactive, pre-litigation organizational role separation: structurally dividing clinical governance so that high-level physicians on QI committees are permanently barred from acting as litigation claims liaisons or CR 30(b)(6) designees. Practical Compliance  To navigate the strict mandates of Snyder and protect case integrity, corporate defense counsel and health care risk managers must adopt three mandatory practice protocols: Conduct Factual Discovery Exclusively Through Formal Court Rules. Defense counsel must refrain from informal telephone calls, debriefs, or “support visits” with former employee providers. All factual inquiries must occur through formal oral depositions under Wash. Super. Ct. Civ. R. 30 or written depositions under Wash. Super. Ct. Civ. R. 31 upon formal notice to plaintiff's counsel. Strictly Prohibit Using Separate Counsel as a Conduit. If an insurer assigns separate independent counsel to represent a former employee provider under continuing indemnification duties, primary corporate counsel cannot pass trial briefs, expert reports, or strategy talking points ex parte to separate counsel. Smith v. Orthopedics Int'l, Ltd., 170 Wn.2d at 668; Snyder, slip op. at 27–28. Establish Proactive Pre-Litigation QI Ethical Walls. Health care facilities must structurally divide clinical governance so that high-level physicians who serve on statutory Quality Improvement peer-review committees are permanently barred from acting as corporate claims liaisons, risk defense managers, or corporate Person Most Knowledgeable (PMK) designees under CR 30(b)(6). Proactive ethical screening is essential to prevent subject-matter waiver of statutory peer-review immunity under Wash. Rev. Code § 70.41.200.
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Meer Quoted in Law360 on Insurance Coverage Implications of Binance Hack
Jonathan Meer (Partner-New York, NY) was quoted in the article “Binance Mega-Hack Confirms Cyberinsurance Industry Fears,” appearing in the November 5, 2026, edition of Law360. The article discusses how the massive $6.3 billion cryptocurrency theft from Binance has raised questions about the insurance industry's ability to cover losses stemming from large-scale cyberattacks, particularly those attributed to state-sponsored actors. Insurance experts are examining potential coverage limitations, including war exclusions and policy restrictions, as well as the challenges of insuring significant digital asset holdings. Jonathan, interviewed among other industry experts, emphasizes the magnitude of the exposure, noting, “Six billion is a very large number, and I don't think there's any sort of insurance tower that goes anywhere near such a figure.” He also weighs in on how the method used to compromise Binance's systems could influence future underwriting practices and insurers' assessment of cyber risks.
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Stress, Bias, and Mental Wellbeing in the Legal Profession: The Unique Challenges of Women Lawyers and a Path Forward
Kathleen Wilkinson (Senior Counsel-Philadelphia) will moderate the panel “Stress, Bias, and Mental Wellbeing in the Legal Profession: The Unique Challenges of Women Lawyers and a Path Forward,” for an ABA Commission on Women in the Profession webinar on November 18, 2026. The webinar will present findings from the Commission’s groundbreaking research examining the state of mental well-being among lawyers with particular emphasis on the unique challenges women face across demographic groups and career stages. The program provides insight into how stress, bias, and workplace experiences uniquely affect women lawyers compared to their male counterparts, explores the implications for the legal profession, and offers actionable recommendations for employers, leaders, and practitioners seeking to foster healthier, more inclusive legal workplaces. 
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Defamation and Trade Libel Exposure
Adam R. Bialek (Partner-New York, NY) and John P. Cahill (Associate-White Plains, NY) will present the Wilson Elser Forum webinar “Defamation and Trade Libel Exposure” on November 17, 2026. This session examines defamation and trade libel exposure in the digital age, focusing on online publishing, social media, review platforms, and brand communications. The program reviews the legal elements of libel, slander, and product disparagement; critical distinctions between statements of fact and opinion; the actual malice standard; and the per se categories that presume damages. Particular attention is given to how these doctrines apply in commercial contexts, including competitor disputes, negative online reviews, influencer campaigns, and corporate communications that may implicate rivals or their products. Also explored are key defenses and immunities, including Section 230 of the Communications Decency Act; truth/substantial truth, opinion, and rhetorical hyperbole; fair report privilege; and anti-SLAPP statutes. The presenters also address anonymous online speakers, cross-border jurisdictional disputes, and offer practical guidance for claims professionals on evaluating exposure and damages, retraction statutes, litigation privilege, and insurance coverage issues affecting claim severity and resolution.
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Law.com Features Espey Article Examining New Jersey Case Law on Preexisting Conditions in Medical Malpractice Cases
Peter Espey (Of Counsel-Madison, NJ) authored “Struggling with 'Scafidi'? A Brief Overview of Caselaw on Preexisting Conditions in Medical Malpractice Cases,” published in the November 6, 2026, edition of the New Jersey Law Journal on Law.com. The article examines the evolution of New Jersey case law on preexisting conditions in medical malpractice cases, focusing on the landmark Scafidi v. Seiler decision. Peter reviews several significant rulings that have shaped how courts evaluate causation, increased risk of harm, and the apportionment of damages when a patient's preexisting condition may have contributed to an injury or adverse outcome. He explains when a Scafidi jury charge is appropriate, which party bears the burden of establishing apportionment, and the challenges plaintiffs face in proving that medical negligence caused additional harm. As Peter notes, determining responsibility can be particularly complex when a patient's health was already compromised before receiving treatment. The article explores how courts seek to balance a plaintiff's right to recover for malpractice-related harm with protecting defendants from liability for outcomes that were unavoidable or attributable to preexisting conditions. “This complex body of case law will continue to evolve with new fact patterns and advances in healthcare.” 
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Client Wins
Baiocco Secures Defense Verdict for Construction Vehicle Seller/Manufacturer Client
Joseph Baiocco (Partner-White Plains, NY) secured a defense verdict in the Supreme Court of the State of New York, Queens County, on behalf of Wilson Elser’s client, a heavy-duty lifting equipment manufacturer. In this matter involving trucking and construction equipment litigation, Joe successfully argued against the plaintiff’s alleged negligence claims and resolved a complex contractual ownership issues. Following a three-week trial, the jury ruled in our client’s favor and dismissed all claims.
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Wilson and Merritt Secure Dismissal in Federal Court for Insurance Brokerage Client
Daryl Wilson (Of Counsel-Phoenix, AZ) and Nicholas Merritt (Associate-Phoenix, AZ) obtained summary judgment in the U.S. District Court for the District of Arizona for Wilson Elser’s client, an insurance brokerage. The plaintiff, an delivery company partner operating approximately 30 trucks, sued our client after its commercial auto policy was canceled for non-payment in September 2023 and not reinstated. The insurer and wholesale broker were previously dismissed by stipulation, leaving our client as the sole defendant. The plaintiff asserted negligent misrepresentation and declaratory relief claims, seeking business interruption, payroll, and increased substitute coverage costs. The misrepresentation claim rested on the broker's alleged statement that paying the remaining premium would reinstate the policy. Daryl and Nicholas moved for summary judgment on both claims. After oral argument, the court granted the motion in full. On the negligent misrepresentation claim, the court found no evidence that our client made any false statement. It also held that the economic loss doctrine independently barred the claim because the losses were purely economic and arose from the policy our client had been hired to procure. The court also rejected the plaintiff's late attempt to advance a new theory through an expert report, finding that the report lacked supporting facts, the theory had not been pleaded, and the alleged statement was made to the insurer ‒ not to the plaintiff ‒ so the plaintiff could not have relied on it. The court also rejected all three requests for declaratory relief. It found that a declaration concerning the dismissed wholesale broker’s duties would resolve no dispute between the remaining parties, that apportionment of damages was meaningless with only one defendant remaining, and that the requested declaration concerning a duty to disclose rested on the same failed theory underlying the misrepresentation claim. Judgment was entered for our client, and the case was closed.
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Southeast Employment Law Update: “Hot” Updates in Employment Law You Need to Know
Christina M. Heischmidt (Partner-McLean, VA), Daniel E. Gonzalez (Of Counsel-Miami, FL), and Lauren Stadler (Associate-McLean, VA) will present the Wilson Elser Forum webinar “Southeast Employment Law Update: “Hot” Updates in Employment Law You Need to Know” on November 12, 2026. The weather in the Southeast is still heating up, and so are regional employment laws. Join us for a presentation about key employment law updates, including an overview of significant state and federal employment law developments across the Southeast, including Maryland, Virginia, West Virginia, North Carolina, South Carolina, Florida, Georgia, and Alabama. This session evaluates recent case law, legislative changes, and emerging trends, highlighting practical considerations for employers and insurance adjusters in assessing employment-related risks and claims.
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Law360 Publishes Adam and Taylor Bialek on Continuing Legal Risks of Promotional Email Marketing
Adam Bialek (Partner-New York, NY) and Taylor Bialek (Associate-New York, NY) coauthored the article “Washington Email Law Still Puts Marketers at Litigation Risk,” published in the October 30, 2026, edition of Law360. The article examines the growing legal risks associated with promotional email marketing following the Washington Supreme Court’s decision in Brown v. Old Navy LLC, which expanded the state’s Commercial Electronic Mail Act (CEMA) to cover misleading email subject lines. Although a recent legislative amendment reduces potential damages and makes liability harder to establish, the authors explain that businesses remain exposed to class actions and statutory damages when promotional subject lines overstate discounts, create artificial urgency, or misrepresent limited-time offers. They caution that “After Brown, subject lines are front-line compliance claims, and CAN-SPAM compliance alone will not eliminate state law, class action and reputational risk.” Adam and Taylor further highlight why businesses should make marketing governance an operational priority before their next email campaign, offering practical safeguards, including reviewing subject lines as standalone claims, establishing clear approval procedures, monitoring third-party vendors, and maintaining documentation to support promotional representations.
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Wilson Elser Recognized in 2027 Best Law Firms® Rankings
The Best Law Firms® has ranked 12 Wilson Elser practices across National Tiers and 21 local offices – totaling 33 rankings by practice – in Regional Tier 1. Wilson Elser Best Law Firms in America 2027: National Practice Areas  Tier 1: Commercial Litigation Construction Law Insurance Law Litigation - Construction Mass Tort Litigation/ Class Actions – Defendants  Transportation Law Tier 2: Admiralty and Maritime Law Litigation – Labor and Employment Tier 3: Appellate Practice Corporate Law Mergers and Acquisitions Law  Railroad Law Regional Practice Areas Tier 1 Personal Injury Litigation – Defendants: Birmingham, AL Insurance Law: Boston, MA Appellate Practice: Chicago, IL Insurance Law: Denver, CO Litigation – Construction: Denver, CO Litigation – Insurance: Denver, CO Insurance Law: Dallas/Fort Worth, TX Litigation – Insurance: Dallas/Fort Worth, TX Personal Injury Litigation – Defendants: Dallas/Fort Worth Medical Malpractice Law – Defendants: Houston, TX Personal Injury Litigation – Defendants: Houston, TX Product Liability Litigation – Defendants: Houston, TX Transportation Law: Houston, TX Litigation ‒ Insurance: Jackson, MS Personal Injury Litigation: Jackson, MS Legal Malpractice Law ‒ Defendants: Las Vegas, NV Insurance Law: Los Angeles, CA  Professional Malpractice Law – Defendants: Los Angeles, CA Litigation ‒ Health Care: Louisville, KY Medical Malpractice Law – Defendants: Louisville, KY Banking and Finance Law: Madison, NJ Commercial Litigation: Madison, NJ Insurance Law: Madison, NJ Legal Malpractice Law – Defendants: Madison, NJ Litigation – Insurance: Madison, NJ Product Liability Litigation – Defendants: Madison, NJ Professional Malpractice Law – Defendants: Madison, NJ Trusts and Estates: Madison, NJ Insurance Law: Milwaukee, WI Product Liability Litigation – Defendants: Milwaukee, WI Admiralty and Maritime Law: New Orleans, LA Commercial Litigation: New Orleans, LA Construction Law: New York, NY Litigation ‒ Construction: New York, NY Medical Malpractice Law – Defendants: New York, NY Professional Malpractice Law ‒ Defendants: New York, NY Commercial Litigation: Orlando, FL Personal Injury Litigation – Defendants: Orlando, FL Product Liability Litigation – Defendants: Orlando, FL Commercial Litigation: Portland, OR Insurance Law: Portland, OR Litigation ‒ Insurance: Portland, OR Personal Injury Litigation ‒ Defendants: Portland, OR Product Liability Litigation – Defendants: Portland, OR Professional Malpractice Law – Defendants: Portland, OR Commercial Litigation: San Diego, CA Personal Injury Litigation – Defendants: Seattle, WA Product Liability Litigation – Defendants: Seattle, WA Medical Malpractice Law – Defendants: Stamford, CT Mass Tort Litigation / Class Actions ‒ Defendants: Washington, DC Medical Malpractice Law – Defendants: Washington, DC Personal Injury Litigation ‒ Defendants: Washington, DC Product Liability Litigation ‒ Defendants: Washington, DC Medical Malpractice Law – Defendants: White Plains, NY Railroad Law: White Plains, NY Regional Practice Areas Tier 2 Commercial Litigation: Albany, NY Commercial Litigation: Atlanta, GA Professional Malpractice Law ‒ 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Litigation – Defendants: Las Vegas, NV Aviation Law: Los Angeles, CA Commercial Litigation: Louisville, KY Insurance Law: Louisville, KY Litigation – Insurance: Louisville, KY Personal Injury Litigation – Defendants: Louisville, KY Corporate Law: Madison, NJ Health Care Law: Madison, NJ Insurance Law: New Orleans, LA Litigation – Labor and Employment: Philadelphia, PA Professional Malpractice Law – Defendants: Philadelphia, PA Health Care Law: Portland, OR Ethics and Professional Responsibility Law: San Diego, CA Commercial Litigation: San Francisco, CA Product Liability Litigation ‒ Defendants: San Francisco, CA Medical Malpractice Law ‒ Defendants: Seattle, WA Litigation ‒ Insurance: St. Louis, MO Insurance Law: Stamford, CT Litigation ‒ Insurance: Stamford, CT Employment Law ‒ Management: Washington, DC Insurance Law: Washington, DC Commercial Litigation: White Plains, NY Regional Practice Areas Tier 3 Product Liability Litigation – Defendants: Albany, NY Professional Malpractice 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Navigating Ex Parte Contact with Health Care Providers in Medical Malpractice Litigation
In Snyder v. Virginia Mason Medical Center, No. 104136-5 (Wash. Oct. 1, 2026), the Washington Supreme Court held that corporate defense counsel, risk managers, and claims adjusters may not communicate ex parte with a hospital’s former employee health care providers about patient care. The Court reaffirmed Loudon v. Mhyre, 110 Wn.2d 675, 756 P.2d 138 (1988) prohibiting ex parte communication by defense counsel with a plaintiff’s treating physicians, held that prejudice is presumed when Loudon is violated, and ruled that a quality improvement (QI) committee member’s involvement in defense strategy waives the committee’s statutory privilege under Wash. Rev. Code § 70.41.200. As a result, informal contact with former employee providers should stop, and factual inquiries should proceed through formal discovery under Wash. Super. Ct. Civ. R. 30 or 31. This article explains how Snyder fits within Washington’s patient confidentiality and corporate privilege framework, how it applies to different categories of providers, and what hospitals and their counsel should do now. Patient Confidentiality vs. Corporate Privilege To navigate the procedural boundaries governing medical malpractice defense in Washington, practitioners must understand the fundamental statutory tension between a patient’s right to health care confidentiality and an institution's right to confer with corporate counsel. Under Washington's Uniform Health Care Information Act, health care providers and their agents are strictly prohibited from disclosing health information without explicit written authorization, except as otherwise provided by law. Wash. Rev. Code § 70.02.020; State v. Scherf, 192 Wn.2d 350, 387, 431 P.3d 976, 995 (2018); King v. Riveland, 125 Wn.2d 500, 509, 886 P.2d 160, 165 (1994). This privacy right is reinforced by Washington's statutory physician-patient privilege, which protects treating physicians from being compelled to testify regarding medical information acquired while attending a patient. Wash. Rev. Code § 5.60.060(4). While a patient automatically waives this statutory privilege upon filing a personal injury or medical malpractice lawsuit under Wash. Rev. Code § 5.60.060(4)(b), the Washington Supreme Court has consistently held that this waiver is not absolute. In Loudon v. Mhyre, 110 Wn.2d 675, 678, 756 P.2d 138, 140 (1988), the Court established a bright-line prohibition against defense counsel engaging in private, ex parte communications with a plaintiff’s treating physicians. The Loudon rule safeguards the fiduciary doctor-patient relationship, prevents inadvertent disclosure of irrelevant medical records, and eliminates the risk of turning defense attorneys into potential trial witnesses. Loudon, 110 Wn.2d at 682, 756 P.2d at 142; Smith v. Orthopedics Int'l, Ltd., 170 Wn.2d 659, 666, 244 P.3d 939, 942–43 (2010). On the corporate side, health care facilities rely on corporate attorney-client privilege to conduct internal risk investigations. Wash. Rev. Code § 5.60.060(2)(a); Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S. Ct. 677, 682, 66 L. Ed. 2d 584 (1981). However, in Newman v. Highland School District No. 203, 186 Wn.2d 769, 381 P.3d 1188 (2016), the Washington Supreme Court established a strict temporal boundary on corporate privilege, holding that privilege does not extend to post-employment communications with former employees: “The underlying purpose of the corporate attorney-client privilege is to foster full and frank communications between counsel and the client (i.e., the corporation), not its former employees... This purpose is preserved by limiting the scope of the privilege to the duration of the employer-employee relationship.” Newman, 186 Wn.2d at 781, 381 P.3d at 1193 (quoting Restatement (Third) of the Law Governing Lawyers § 73 cmt. e (Am. L. Inst. 2000)). Evolution of Provider Contact Rules: Current vs. Former Personnel How does one reconcile corporate attorney-client privilege with the Loudon doctrine? The Supreme Court addressed this conflict in Youngs v. PeaceHealth, 179 Wn.2d 645, 664, 316 P.3d 1035, 1045 (2014), carving out a narrow exception allowing corporate defense counsel to conduct confidential ex parte interviews with a nonparty treating physician who is a current employee of the hospital, provided those communications are limited strictly to the facts surrounding the alleged negligent incident. In Hermanson v. MultiCare Health System, Inc., 196 Wn.2d 578, 581, 475 P.3d 484, 487 (2020), the Court extended this principle to current non-physician staff and current independent contractors who are the functional equivalents of employees. However, when a treating provider leaves the facility's employ, the legal landscape shifts dramatically across four distinct provider categories: Current Employee Providers: Fully covered under the Youngs exception. Corporate defense counsel may conduct privileged, ex parte interviews with active employee physicians, nurses, and staff, provided the conversation is confined to the facts of the alleged negligent incident and does not delve into general medical history. Youngs v. PeaceHealth, 179 Wn.2d at 671. Current Independent Contractors: Covered under Hermanson where an agency or functional equivalent relationship exists. If an independent contractor doctor acts as an agent of the facility, corporate counsel may confer ex parte under the same strict factual constraints of Youngs. Hermanson v. MultiCare Health Sys., Inc., 196 Wn.2d at 589–90. Former Employee Providers (Including C-Suite Officers & Owners): Governed strictly by Newman and Snyder. The moment a provider separates from employment, it instantly extinguishes corporate attorney-client privilege over ongoing trial preparation. Because former employees no longer owe agency duties, defense counsel cannot conduct ex parte interviews with former staff regarding patient care under any circumstances. Snyder v. Virginia Mason Med. Ctr., slip op. at 28–29. Quality Improvement (QI) Committee Members: Subject to statutory peer-review immunity under Wash. Rev. Code § 70.41.200(3). While records prepared for QI committees are immune from discovery, committee members must be strictly screened from litigation defense teams. If a QI member participates in active trial strategy or ex parte witness preparation, statutory peer-review privilege is completely forfeited. Snyder, slip op. at 38–39. The Snyder Decision: Presumed Harm, Privilege Logs, and QI Waiver In Snyder v. Virginia Mason Medical Center, No. 104136-5, slip op. (Wash. Oct. 1, 2026) (En Banc), the Washington Supreme Court resolved lingering uncertainties by establishing three definitive holdings that fundamentally reshape medical malpractice litigation. 1. Rejection of Defense Exceptions and Affirmance of Loudon The Supreme Court affirmed that Loudon applies strictly to former employee health care providers, regardless of whether their care forms the primary basis of the hospital's alleged vicarious liability. In doing so, the Court explicitly rejected a series of defense theories: Representation Agreements & Indemnity Contracts: Private employment contracts requiring former doctors to cooperate in litigation defense cannot override statutory patient privacy rights under Wash. Rev. Code § 70.02.020 or physician-patient privilege under Wash. Rev. Code § 5.60.060(4). Hermanson, 196 Wn.2d at 590 n.1; Snyder, slip op. at 25–26. Common Interest / Joint Defense Theories: Shared legal exposure does not authorize defense counsel to conduct ex parte trial strategy sessions with former employee providers or their separate attorneys. Smith v. Orthopedics Int'l, Ltd., 170 Wn.2d at 668; Snyder, slip op. at 27–28. Inapplicability of Youngs: The Court confirmed that the fiduciary doctor-patient relationship survives employment termination, placing former employee providers strictly beyond the reach of the Youngs current-employee exception. Snyder, slip op. at 28–29. 2. Magaña and the Presumption of Prejudice Crucially, the Supreme Court disavowed its prior decision in Magaña v. Hyundai Motor America, 167 Wn.2d 570, 220 P.3d 191 (2009), which required plaintiffs to prove substantial litigation prejudice to obtain discovery sanctions. Holding that ex parte contacts inherently damage the fiduciary doctor-patient relationship, the Court established that prejudice is presumed upon demonstrating a Loudon violation. Snyder, slip op. at 33–34. To evaluate appropriate sanctions—ranging from monetary fines to entering a default judgment on liability—the Supreme Court extended Cedell v. Farmers Insurance Co. of Washington, 176 Wn.2d 686, 295 P.3d 239 (2013), ordering the trial court to conduct an in-camera inspection of all withheld defense privilege log entries generated during unauthorized ex parte contacts. Snyder, slip op. at 35–36. 3. Subject-Matter Waiver of Quality Improvement Immunity Under Wash. Rev. Code § 70.41.200(3), hospital Quality Improvement committee proceedings are confidential. However, in Snyder, the Chief Medical Officer sat on the hospital’s statutory QI committee while simultaneously receiving litigation talking points from defense counsel, coordinating witness outreach, and traveling ex parte to meet with a former resident physician. The Supreme Court held that failing to ethically screen a QI committee member from active litigation strategy taints the committee's inner workings, effecting a complete subject-matter waiver of statutory peer-review privilege. Snyder, slip op. at 38–39. Real-World Realities: Memory Decay, Pre-Litigation Holds, and Sophistication At the end of the day, modern institutional health care delivery renders determining the exact composition of a patient's treatment team—and whether defense counsel is legally permitted to speak with any given provider—an exercise in pure guesswork. It has long been complicated for patients and health systems to figure out who their doctor is in a complex clinical environment involving rotating resident physicians, attending specialists, hospitalists, and independent contractors. Yet, now no one seems to know who the doctor might not be and whether defense counsel should be speaking to them behind closed doors. By establishing an unyielding temporal boundary that severs corporate attorney-client privilege the exact moment an employee separates from service, Newman, 186 Wn.2d at 781, and Snyder, slip op. at 20, 28–29, creates an unworkable practical fiction. In effect, this rigid rule generates an absurd practical presumption: that no health care practitioner can ever retire, relocate, or transition employment if any remote possibility of future litigation may ensue. This jurisprudence fundamentally neglects two operational realities of medical malpractice defense: the necessity of pre-litigation risk investigations and the natural fading of human memory. When an adverse clinical outcome occurs, risk management must investigate immediately to evaluate institutional exposure. While an institution can readily issue electronic litigation holds to preserve health records, paper charts, and audit trails, it is impossible to ask a human witness to hold onto their unrefreshed memories. While interviewing a witness when a facility first learns of a potential claim is straightforward, months or even years frequently elapse between the medical event, the formal filing of a lawsuit, and the procedural opportunity for defense counsel to deploy formal discovery rules under Wash. Super. Ct. Civ. R. 30 or CR 31. Expecting a treating physician to maintain vivid, detailed recollections of a single procedure performed years earlier—without the benefit of informal factual debriefs with risk management—defies human memory and litigation reality. Finally, this line of authority improperly presumes a uniform, strict sophistication across all health care facilities. Snyder presumes that every community hospital, rural health clinic, and small practice group maintains the extensive legal infrastructure, ethical screening walls, and specialized claims teams of a major academic medical center. By imposing strict liability sanctions and an automatic presumption of prejudice for ex parte contacts regardless of actual litigation harm (Snyder, slip op. at 33–34), the Court penalizes health care entities for standard risk management inquiries while ignoring the operational realities of modern medical practice. Specific Application Cases: C-Suite, Mid-Suit Separation, and Dual Roles A. Former C-Suite Executives, Board Members, and Physician-Owners A frequent point of defense confusion is whether a physician’s former status as a C-suite executive (e.g., Chief Medical Officer), board member, or equity owner exempts them from Loudon. Under Washington law, the extent of corporate privilege coverage depends entirely upon temporal status and the subject matter of the communication. This includes: Pre-Separation Corporate Governance Communications (COVERED): Confidential communications made during active executive, board, or ownership tenure regarding hospital administration, risk management, or general business operations remain protected by the entity's attorney-client privilege under Upjohn Co. v. United States, 449 U.S. 383, 391 (1981) and Wash. Rev. Code § 5.60.060(2)(a). Post-Separation Patient Care Communications (NOT COVERED): Once employment, board tenure, or equity ownership severs, corporate attorney-client privilege terminates. Newman, 186 Wn.2d at 781. Reaffirming Newman, the Supreme Court in Snyder, slip op. at 20, 28–29 held that former executive or ownership status creates no exception to Loudon. Because former C-suite physicians and owners no longer possess agency authority or ongoing duties of loyalty to the entity, defense counsel cannot engage in post-separation ex parte trial preparation regarding patient care provided by that physician. B. Mid-Litigation Employment Termination If a treating physician’s employment terminates during active medical malpractice litigation, corporate attorney-client privilege over ongoing trial preparation instantly evaporates at the moment of separation. Under Newman and Snyder, corporate defense counsel is strictly barred from conducting further ex parte strategy sessions with the departing physician, practically necessitating separate independent counsel for the physician to prevent per se Loudon violations and concurrent conflicts under Rule of Professional Conduct 1.7. C. Dual-Roled Physicians and Corporate PMK Designees Quality Improvement (QI) committee members represent one of the most perilous legal landmines for health care facilities under Snyder, slip op. at 38–39. Health care facilities face an inherent dilemma: the individuals best situated to serve as key corporate contacts or Person Most Knowledgeable (PMK) designees under Wash. Super. Ct. Civ. R. 30(b)(6)—such as CMOs or Medical Directors—are almost universally the exact same clinical leaders who sit on statutory QI committees. When a lawsuit emerges, institutions routinely rely on senior officers to investigate the incident and coordinate witness outreach. However, under Snyder, combining statutory peer-review functions with litigation defense strategy destroys the statutory privilege protecting the facility's Quality Improvement proceedings. To protect peer-review immunity, institutions ought to consider implementing proactive, pre-litigation organizational role separation: structurally dividing clinical governance so that high-level physicians on QI committees are permanently barred from acting as litigation claims liaisons or CR 30(b)(6) designees. Practical Compliance  To navigate the strict mandates of Snyder and protect case integrity, corporate defense counsel and health care risk managers must adopt three mandatory practice protocols: Conduct Factual Discovery Exclusively Through Formal Court Rules. Defense counsel must refrain from informal telephone calls, debriefs, or “support visits” with former employee providers. All factual inquiries must occur through formal oral depositions under Wash. Super. Ct. Civ. R. 30 or written depositions under Wash. Super. Ct. Civ. R. 31 upon formal notice to plaintiff's counsel. Strictly Prohibit Using Separate Counsel as a Conduit. If an insurer assigns separate independent counsel to represent a former employee provider under continuing indemnification duties, primary corporate counsel cannot pass trial briefs, expert reports, or strategy talking points ex parte to separate counsel. Smith v. Orthopedics Int'l, Ltd., 170 Wn.2d at 668; Snyder, slip op. at 27–28. Establish Proactive Pre-Litigation QI Ethical Walls. Health care facilities must structurally divide clinical governance so that high-level physicians who serve on statutory Quality Improvement peer-review committees are permanently barred from acting as corporate claims liaisons, risk defense managers, or corporate Person Most Knowledgeable (PMK) designees under CR 30(b)(6). Proactive ethical screening is essential to prevent subject-matter waiver of statutory peer-review immunity under Wash. Rev. Code § 70.41.200.
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News
Meer Quoted in Law360 on Insurance Coverage Implications of Binance Hack
Jonathan Meer (Partner-New York, NY) was quoted in the article “Binance Mega-Hack Confirms Cyberinsurance Industry Fears,” appearing in the November 5, 2026, edition of Law360. The article discusses how the massive $6.3 billion cryptocurrency theft from Binance has raised questions about the insurance industry's ability to cover losses stemming from large-scale cyberattacks, particularly those attributed to state-sponsored actors. Insurance experts are examining potential coverage limitations, including war exclusions and policy restrictions, as well as the challenges of insuring significant digital asset holdings. Jonathan, interviewed among other industry experts, emphasizes the magnitude of the exposure, noting, “Six billion is a very large number, and I don't think there's any sort of insurance tower that goes anywhere near such a figure.” He also weighs in on how the method used to compromise Binance's systems could influence future underwriting practices and insurers' assessment of cyber risks.
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Events
Stress, Bias, and Mental Wellbeing in the Legal Profession: The Unique Challenges of Women Lawyers and a Path Forward
Kathleen Wilkinson (Senior Counsel-Philadelphia) will moderate the panel “Stress, Bias, and Mental Wellbeing in the Legal Profession: The Unique Challenges of Women Lawyers and a Path Forward,” for an ABA Commission on Women in the Profession webinar on November 18, 2026. The webinar will present findings from the Commission’s groundbreaking research examining the state of mental well-being among lawyers with particular emphasis on the unique challenges women face across demographic groups and career stages. The program provides insight into how stress, bias, and workplace experiences uniquely affect women lawyers compared to their male counterparts, explores the implications for the legal profession, and offers actionable recommendations for employers, leaders, and practitioners seeking to foster healthier, more inclusive legal workplaces. 
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Events
Defamation and Trade Libel Exposure
Adam R. Bialek (Partner-New York, NY) and John P. Cahill (Associate-White Plains, NY) will present the Wilson Elser Forum webinar “Defamation and Trade Libel Exposure” on November 17, 2026. This session examines defamation and trade libel exposure in the digital age, focusing on online publishing, social media, review platforms, and brand communications. The program reviews the legal elements of libel, slander, and product disparagement; critical distinctions between statements of fact and opinion; the actual malice standard; and the per se categories that presume damages. Particular attention is given to how these doctrines apply in commercial contexts, including competitor disputes, negative online reviews, influencer campaigns, and corporate communications that may implicate rivals or their products. Also explored are key defenses and immunities, including Section 230 of the Communications Decency Act; truth/substantial truth, opinion, and rhetorical hyperbole; fair report privilege; and anti-SLAPP statutes. The presenters also address anonymous online speakers, cross-border jurisdictional disputes, and offer practical guidance for claims professionals on evaluating exposure and damages, retraction statutes, litigation privilege, and insurance coverage issues affecting claim severity and resolution.
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Publications
Law.com Features Espey Article Examining New Jersey Case Law on Preexisting Conditions in Medical Malpractice Cases
Peter Espey (Of Counsel-Madison, NJ) authored “Struggling with 'Scafidi'? A Brief Overview of Caselaw on Preexisting Conditions in Medical Malpractice Cases,” published in the November 6, 2026, edition of the New Jersey Law Journal on Law.com. The article examines the evolution of New Jersey case law on preexisting conditions in medical malpractice cases, focusing on the landmark Scafidi v. Seiler decision. Peter reviews several significant rulings that have shaped how courts evaluate causation, increased risk of harm, and the apportionment of damages when a patient's preexisting condition may have contributed to an injury or adverse outcome. He explains when a Scafidi jury charge is appropriate, which party bears the burden of establishing apportionment, and the challenges plaintiffs face in proving that medical negligence caused additional harm. As Peter notes, determining responsibility can be particularly complex when a patient's health was already compromised before receiving treatment. The article explores how courts seek to balance a plaintiff's right to recover for malpractice-related harm with protecting defendants from liability for outcomes that were unavoidable or attributable to preexisting conditions. “This complex body of case law will continue to evolve with new fact patterns and advances in healthcare.” 
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