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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

JENNIFER N. FORSHEY, D.M.D., M.D.,

Plaintiff,

v.

SOMS, Inc., P.S., a Washington corporation;

ROBERT TODD ERICKSON, DDS, and

ANNE ERICKSON, and their marital

community,

Defendants.

CASE NO. C06-5335RJB

ORDER (1) GRANTING IN

PART AND DENYING IN PART

PLAINTIFF’S MOTION FOR

SUMMARY JUDGMENT ON

CONTRACT CLAIMS, (2)

GRANTING IN PART AND

DENYING IN PART

PLAINTIFF’S MOTION FOR

SUMMARY JUDGMENT ON

COUNTERCLAIMS, AND (3)

GRANTING AND DENYING

EVIDENTIARY MOTIONS TO

STRIKE

SOMS, Inc., P.S., a Washington corporation;

ROBERT TODD ERICKSON, DDS, and

ANNE ERICKSON, and their marital

community,

Counter Claimants,

v.

JENNIFER N. FORSHEY, D.M.D., M.D.,

Counter Defendant.

This matter comes before the Court on the Plaintiff’s Motion for Summary Judgment on

Contract Claims (Dkt. 92), the Plaintiff’s Motion for Summary Judgment on Counterclaims (Dkt.

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93), and the Evidentiary Motions to Strike contained in the reply (Dkt. 159). The Court has

considered the pleadings filed in support of and in opposition to the motions and the file herein.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Jennifer N. Forshey is an oral surgeon who was hired by SOMS, Inc. P.S.

(“SOMS”) in March of 2004 under a one-year employment contract. Dkt. 94, Exh. A at 2. Dr.

Forshey’s employment with SOMS was terminated on August 19, 2004. Dkt. 151 at 21. The

complaint alleges that the termination stemmed from Dr. Forshey’s opposition to Dr. Erickson

permitting Michael Serrianne to administer anesthetics when he was in fact not licensed to do so.

Dkt. 1 at 5. Dr. Forshey alleges that her termination constitutes wrongful discharge in violation of

public policy and breach of employment contract. Id. at 7. Intermountain Employment Solutions,

Inc. was dismissed. See Dkt. 45.

Two motions for summary judgment are currently pending before the Court. Dkt. 92; Dkt.

93. The defendants filed a joint response to both motions. Dkt. 151. Therefore, the Court will

address both motions in this Order.

II. SUMMARY JUDGMENT STANDARD

Summary judgment is proper only if the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any, show that there is no genuine issue as

to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ.

P. 56(c). The moving party is entitled to judgment as a matter of law when the nonmoving party

fails to make a sufficient showing on an essential element of a claim in the case on which the

nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1985).

There is no genuine issue of fact for trial where the record, taken as a whole, could not lead a

rational trier of fact to find for the non moving party. Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 586 (1986) (nonmoving party must present specific, significant probative

evidence, not simply “some metaphysical doubt.”). See also Fed. R. Civ. P. 56(e). Conversely, a

genuine dispute over a material fact exists if there is sufficient evidence supporting the claimed

factual dispute, requiring a judge or jury to resolve the differing versions of the truth. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 253 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors

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Ass’n, 809 F.2d 626, 630 (9th Cir. 1987).

The determination of the existence of a material fact is often a close question. The court

must consider the substantive evidentiary burden that the nonmoving party must meet at trial –

e.g., a preponderance of the evidence in most civil cases. Anderson, 477 U.S. at 254; T.W. Elec.

Serv., Inc., 809 F.2d at 630. The court must resolve any factual issues of controversy in favor of

the nonmoving party only when the facts specifically attested by that party contradict facts

specifically attested by the moving party. The nonmoving party may not merely state that it will

discredit the moving party’s evidence at trial, in the hopes that evidence can be developed at trial

to support the claim. T.W. Elec. Serv., Inc., 809 F.2d at 630 (relying on Anderson, supra).

Conclusory, non specific statements in affidavits are not sufficient, and missing facts will not be

presumed. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888-89 (1990).

III. DISCUSSION

First, Dr. Forshey moves for summary judgment on her breach of contract claims. Dkt. 92.

Dr. Forshey contends that the defendants violated provisions of the Associate Agreement

governing written notice, termination, and compensation. Dkt. 92. Second, Dr. Forshey moves for

summary judgment on the defendants’ counterclaims for breach of contract and tortious

interference with business expectations. Dkt. 93.

A. BREACH OF CONTRACT

Under the rule of Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), “federal courts sitting in

diversity jurisdiction apply state substantive law and federal procedural law.” Gasperini v. Center

for Humanities, Inc., 518 U.S. 415, 427 (1996). As the Washington Supreme Court has noted,

courts asked to enforce a contract may be called upon to either construct or interpret a contract’s

terms. Berg v. Hudesman, 115 Wn.2d 657, 663 (1990). Contract construction requires the court

to determine the legal consequences that flow from a contract’s terms. Id. at 663. Contract

construction is a purely legal question, and is therefore appropriate for resolution at the summary

judgment stage.

Contract interpretation requires the court to determine the meaning of a contract term and

the parties’ intentions. Id. at 663. When interpreting a contract, the contract’s ambiguous

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language is construed against the party who drafted it or whose attorney prepared it. See Guy

Stickney, Inc. v. Underwood, 67 Wn.2d 824,827 (1966). The Court’s review is generally limited

to the contract itself, and parol evidence or extrinsic evidence is not admissible to add to, subtract

from, vary, or contradict written contracts that are valid, complete, unambiguous, and not

affected by accident, fraud, or mistake. Berg, 115 Wn.2d at 670. Washington courts use the

“context rule” when interpreting contracts, whereby extrinsic evidence is admissible as to the

entire circumstances under which the contract was made, as an aid in ascertaining the parties’

intent.” Id. at 667. Under the context rule, courts may consider parol evidence to interpret the

contract as it was written. Id. at 669. 

Dr. Forshey contends that her termination was a breach of Paragraphs 13 (“Termination of

Employment”) and 15 (“Notices”) of the Associate Agreement and that she is owed a $6,295.29

bonus under Paragraph 4 (“Compensation) of the Associate Agreement. Dkt. 92 at 9-18.

1. “Reasonable Notice” Requirement

Dr. Forshey contends (1) that her termination was for failure to comply with policies and

not “for cause”; and (2) that the defendants therefore breached the Associate Agreement by failing

to provide her written notice before she was terminated. See Dkt. 92 at 20-21. The defendants

contend that Dr. Forshey was terminated “for cause” and that such termination does not require

written notice. Dkt. 151 at 25. 

Paragraph 13 of the Associate Agreement between SOMS and Dr. Forshey governs

termination and requires notice for termination for failure to comply with policies:

The Employer shall have the right to terminate this Agreement and the Employee’s

employment hereunder at any time upon the occurrence of any one or more of the

following events: . . . (iv) if the Employee shall, after reasonable notice, continue to fail or

refuse to comply with the policies, standards, or regulations of the Employer from time to

time established; . . . (viii) for cause . . . .

Dkt. 95, Exh. A at 7-8. 

The Associate Agreement may also be terminated by either party upon notice given ninety

days before the end of the contract term. Dkt. 95, Exh. A at 2.

Dr. Forshey first contends that her termination cannot properly be characterized as “for

cause” because that provision of the contract should not be given legal effect and because her

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termination did not satisfy the “just cause” standard under Washington law. Rather, Dr. Forshey

urges the Court to analyze her termination under the provision regarding violation of policies and

requiring reasonable notice. 

Dr. Forshey contends that the “for cause” provision should not be given legal effect

because the specific, enumerated events justifying termination must be applied before the general

“for cause” term when interpreting the contract. Dkt. 92 at 19; see Diamond B Constructors, Inc.

v. Granite Falls School Dist., 117 Wn. App. 157, 165 (2003) (“Where the contract provides a

general and a specific term, the specific controls over the general.”). This rule applies only when

there is an ambiguity or conflict. Graoch Associates No. 5 Ltd. Partnership v. Titan Const. Corp.,

126 Wn. App. 856, 867 (2005). The Court is not persuaded that the provision allowing

termination for failure to comply with employer policies conflicts with the provision allowing “for

cause” terminations or creates an ambiguity. Dr. Forshey fails to persuade the Court that giving

effect to the “for cause” termination provision would render meaningless the specific and

enumerated justifications for termination. 

Dr. Forshey next contends that her termination does not comport with the standards of

“just cause” under Washington law. The Associate Agreement does not define “cause.”

Washington Courts have defined “just cause”:

“[J]ust cause” is a fair and honest cause or reason, regulated by good faith on the part of

the party exercising the power. We further hold a discharge for “just cause” is one which

is not for any arbitrary, capricious, or illegal reason and which is one based on facts (1)

supported by substantial evidence and (2) reasonably believed by the employer to be true.

Baldwin v. Sisters of Providence in Washington, Inc., 112 Wn.2d 127, 139 (1989). “Just cause”

and “for cause” are different legal standards, and “just cause” affords employees more rights. See

Civil Service Com'n of City of Kelso v. City of Kelso, 137 Wn.2d 166, 174-76 (1999). Dr.

Forshey offers no legal authority for applying the higher “just cause” standard to the “for cause”

provision in the Associate Agreement.

Finally, Dr. Forshey contends that the reason for her termination was failure to comply

with SOMS’s policies, standards, and regulations. The defendants allege several justifications for

Dr. Forshey’s termination, including the following: Dr. Forshey’s behavior during the last weeks

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of her employment (Dkt. 152-2, Exh. 2; Dkt. 156, Exh. 1); Dr. Forshey’s breaking of “elevators”

used to extract teeth (Dkt. 152-4, Exh. 16 at 19, 24, 28; see Dkt. 152-5, Exh. 19 at 3); Dr.

Forshey’s failure to document whether patients on anti-coagulation therapy had received recent

PT/INR tests (See Dkt. 152-2, Exh. 1 at 7-8; Dkt. 152-4, Exh. 16 at 26-27); Dr. Forshey’s failure

to engage in marketing activities on her day off as promised (Dkt. 155 at 2); and downcoding

(undercharging) or giving away services (Dkt. 153 at 5). It is not clear whether these justifications

for Dr. Forshey’s termination relate to “policies, standards or regulations of the Employer from

time to time established” and therefore fall under the contract provision requiring notice. Dkt. 95,

Exh. A at 7; see also Dkt. 151 at 14 (response admitting that no policy manual governed Dr.

Forshey’s alleged behavioral issues); Dkt. 152-4, Exh. 16 at 26-27 (Dr. Erickson describing

PT/INR testing as “protocol”); Dkt. 153 at 5 (giving away care is not in compliance with the

procedures of the practice); Dkt. 95, Exh. A at 3 (paragraph 3.2 of the contract requires prior

written consent for the performance of surgery or dental services for the benefit of any other

person or entity); Dkt. 95, Exh. A at 3 (paragraph 3.3 of the contract governs the performance of

“administrative and marketing duties”); Dkt. 95, Exh. A at 6 (paragraph 12.1.1, a “restrictive

covenant,” prohibits rendering services to any patients of the practice to or for the benefit of the

employee or any other person or entity). Because it is not yet clear whether Dr. Forshey’s

termination was based upon violation of policies, standards, or regulations, the Court cannot yet

determine whether Dr. Forshey was entitled to “reasonable notice” prior to her termination. The

Plaintiff’s Motion for Summary Judgment on Contract Claims should be denied in this respect.

2. Bonus Compensation

The Associate Agreement between SOMS and Dr. Forshey governs compensation:

In consideration of and as full and total compensation for all services, the Employer shall

pay to the Employee during the Term a base salary of One Hundred Fifty Thousand

Dollars ($150,000.00) (the “Base Salary”). In addition to the Base Salary, the Employer

shall pay the Employee additional compensation (the “Additional Compensation”) at the

end of each calendar year equal to twenty percent (20%) of all adjusted collections for the

calendar year. During calendar year 2004, the $600,000.00 threshold will be prorated

based on the actual number of weeks the Associate works for the Employer in 2004. Base

Salary and Additional Compensation shall hereafter be collectively referred to as

“Compensation.” 

Dkt. 95, Exh. A at 3. In 2004, Dr. Forshey worked 24.7 weeks. Dkt. 94 at 2. The collections

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threshold, prorated to account for the number of weeks Dr. Forshey actually worked, is

$285,000. Id. Dr. Forshey’s collections of $316,476.47 exceeded the prorated collections

threshold by $31,476.47. Id; Dkt. 107, Exh. N at 3. Dr. Forshey alleges that she is entitled to 20%

of this amount, or $6,295.29. Dkt. 92 at 9.

Dr. Forshey also contends that she is entitled to double damages for the withheld bonus

compensation. RCW 49.52.050(2) makes it a misdemeanor for an employer to “[w]ilfully and

with intent to deprive the employee of any part of his wages, [] pay any employee a lower wage

than the wage such employer is obligated to pay such employee by any statute, ordinance, or

contract.” RCW 49.52.050(2). As a civil penalty for such a violation, employers are liable for 

“twice the amount of the wages unlawfully rebated or withheld by way of exemplary damages,

together with costs of suit and a reasonable sum for attorney’s fees.” under RCW 49.52.070. This

statute is construed liberally. Flower v. T.R.A. Industries, Inc., 127 Wn. App. 13, 35 (2005), rev.

denied, 156 Wn.2d 1030 (2006). By providing for costs and attorney fees, this statute provides an

effective mechanism for recovery even where the wages wrongfully withheld may be small.

Schilling v. Radio Holdings, Inc., 136 Wn.2d 152, 159 (1998).

The critical determination in a case under RCW 49.52.070 for double damages is whether

the employer’s failure to pay wages was “willful.” Id. There are two instances when an

employer’s failure to pay wages is not deemed willful: (1) the employer’s failure to pay was

careless or (2) there was a “bona fide” dispute between the employer and the employee regarding

the payment of wages. Id. at 160. The question of whether an employer acts “willfully” for

purposes of RCW 49.52.070 is a question of fact but may be decided as a matter of law if there is

no dispute as to the material facts. Id. 

In this case, the response does not address Dr. Forshey’s claim that her wages were

willfully withheld in violation of the Associate Agreement. Dr. Forshey’s showing is sufficient,

and the wages at issue were earned before the termination. The defendants have therefore failed

to create a genuine issue of material fact. The Court should grant the Plaintiff’s Motion for

Summary Judgment on Contract Claims as to the bonus compensation and double damages owed

to Dr. Forshey under the Associate Agreement.

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B. COUNTERCLAIMS

Dr. Forshey also seeks summary judgment on the defendants’ counterclaims for breach of

contract and tortious interference with business expectations. Dkt. 93. The basis for the

counterclaims is not clear from the defendants’ answer. See Dkt. 7 at 8. 

The plaintiff contends that summary judgment is proper on the counterclaims because the

defendants allege no damages to support their claims. See Dkt. 93 at 3-7. As support, the

defendants offer a letter itemizing only damages associated with alleged downcoding. See Dkt.

119, Exh. Z. This evidence suggests that the defendants have not definitively calculated all of the

damages associated with their counterclaims but fails to establish that there are no damages

associated with the counterclaims. 

1. Breach of Contract

Dr. Forshey seeks summary judgment on several aspects of the defendants’ breach of

contract counterclaim, showing that her failure to disclose a malpractice suit naming her as a

defendant and delay in acquiring a Washington General Anesthesia permit do not constitute

breaches of the Associate Agreement. Dr. Forshey demonstrates that there is no material issue of

fact surrounding these aspects of the defendants’ breach of contract counterclaim. The defendants

fail to respond to this showing, and summary judgment is therefore appropriate on these aspects

of the defendants’ breach of contract counterclaim.

Dr. Forshey also contends that her allegedly inadequate marketing and undercharging for

services do not constitute breaches of the employment contract. As to these aspects of the

defendants’ breach of contract counterclaim, there are several material issues of fact that must be

resolved by the finder of fact at trial, including the true nature and extent of Dr. Forshey’s

marketing effort and whether Dr. Forshey gave away care or undercharged for care in order to

benefit her employer or another entity. The Court should therefore deny the Motion for Summary

Judgment on Counterclaims in these respects.

2. Tortious Interference

Dr. Forshey also seeks summary judgment on the defendants’ counterclaim for tortious

interference with business expectations. Dkt. 93 at 12. A claim of tortious interference with a

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contractual relationship or business expectancy has five elements:

(1) the existence of a valid contractual relationship or business expectancy; (2) that

defendants had knowledge of that relationship; (3) an intentional interference inducing or

causing a breach or termination of the relationship or expectancy; (4) that defendants

interfered for an improper purpose or used improper means; and (5) resultant damage.

Pacific Northwest Shooting Park Ass'n v. City of Sequim, 158 Wn.2d 342, 351 (2006). Dr.

Forshey cites an excerpt of Defendant Anne Erickson’s deposition alleging that referrals to SOMS

ceased after Dr. Forshey’s termination and that Dr. Forshey was contacting dentists and asking

them to write letters on her behalf. See Dkt. 146, Exh. SS at 35-36. These vague allegations do

not create a genuine issue of material fact for trial. The defendants’ response does not address this

portion of the Motion for Summary Judgment on Counterclaims, and the motion should therefore

be granted as to the defendants’ counterclaim for tortious interference with business

expectations.

C. DISCOVERY ISSUES

Dr. Forshey alleges that the defendants’ discovery has been inadequate in several respects.

See, e.g., Dkt. 93 at 1-3, 10-12, 14-15. The deadlines for discovery and motions concerning

discovery have passed, and the timeliness of the defendants’ discovery responses is not properly

before the Court. See Dkt. 73. While the plaintiff contends that dismissal or sanctions may be

appropriate, the plaintiff has not moved for such relief. Furthermore, it does not appear that

sanctions or dismissal is warranted.

D. MOTION TO STRIKE

The plaintiff moves to strike several portions of the record. As explained in more detail

below, the Court should grant and deny the Evidentiary Motions to Strike (Dkt. 159) solely for

purposes of deciding the pending Motions for Summary Judgment and without prejudice to the

parties’ use of the stricken evidence at trial. The Court has not considered the stricken materials in

deciding the Motions for Summary Judgment.

First, the plaintiff moves to strike Exhibit 29 to the Meade declaration as an unsworn

opinion lacking foundation. Dkt. 159 at 10. Dr. Forshey contends that the Court should not

consider this evidence expert testimony because it was compiled by Dr. Erickson, who has not

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been identified as an expert. Id. Dr. Forshey further contends that this evidence constitutes

hearsay. Id. at 12. This document is a spreadsheet listing Dr. Erickson’s notes as to the

inadequacy of Dr. Forshey’s charts. See Dkt. 152-7, Exh. 29 at 26. To the extent that the

spreadsheet offers Dr. Erickson’s opinions as to the sufficiency of the care provided, such opinion

evidence from a lay witness is inappropriate under Federal Rule of Evidence 701. Fed. R. Evid.

701(c) (“If the witness is not testifying as an expert, the witness’ testimony in the form of

opinions or inferences is limited to those . . . not based on scientific, technical, or other specialized

knowledge . . . .”); Dkt. 158 at 2 (Dr. Erickson not disclosed as a witness). To the extent that the

spreadsheet merely summarizes the contents of patients’ charts, the evidence is inadmissible

hearsay under Federal Rules of Evidence 802 and 801(c). The Motion to Strike should be granted

as to Exhibit 29.

Second, the plaintiff seeks to strike Exhibit 2 to the Meade declaration as conclusory and

inadmissible hearsay. Dkt. 159 at 10. This exhibit is a declaration from Molly (Genie) Morgan.

Dkt. 152-2, Exh. 2 at 24. Dr. Forshey seeks to strike statements regarding discussions with Ruth

Sheppard and Anne Erickson. Dkt. 159 at 10. The motion does not specify the specific statements

to be stricken, and the Court is therefore unable to determine whether such statements constitute

hearsay or whether an exception applies. The Motion to Strike should be denied as to Exhibit 2. 

Third, the plaintiff moves to strike a statement from the Sweeten declaration, which is

Exhibit 5 to the Meade declaration, because the witness is not available for trial and cannot be

deposed, because the Ms. Sweeten’s contact information was not supplied, and because the

statement is conclusory and lacks foundation. Dkt. 159 at 10; Dkt. 158 at 3. The offending

statement reads as follows: “On Thursday, August 19, again during the morning huddle with other

staff present, Dr. Forshey proceeded to become belligerent and extremely adversarial regarding

the decision to put her in the Tacoma office where she would get more referrals based on past

history.” Dkt. 152-3, Exh. 5 at 2. The declaration does not specify whether Ms. Sweeten was

present at the morning huddle Thursday, August 19 or whether Ms. Sweeten viewed the allegedly

belligerent and adversarial behavior. The Motion to Strike should therefore be granted as to this

statement. 

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Fourth, the plaintiff moves to strike the last sentence of the Flint declaration as opinion

testimony because Jennifer Flint is not qualified as an expert and was not disclosed as an expert.

Dkt. 159 at 11. The statement is as follows: “It is my belief that her [Dr. Forshey’s] detrimental

behavioral and unprofessional attributes outweighed her value to the practice and thus, her

employment with the practice evolved into a liability to its continued success.” Dkt. 152-3, Exh. 8

at 11. In the preceding sentence, Jennifer Flint states that she is a “marketing professional.” Id.

The Court is not persuaded that the success of a medical or dental practice is necessarily within

the realm of scientific, technical, or other specialized knowledge such that a lay witness is barred

from opining on the subject. The Motion to Strike should be denied in this respect.

Fifth, the plaintiff moves to strike certain lines of the Alexander deposition. Dkt. 159 at

11. Specifically, the plaintiff seeks to strike Jennifer Alexander’s responses on page 181 as not

responsive to the question posted. Id. The plaintiff failed to object at the time of the deposition,

and the objection is therefore waived. See Fed. R. Civ. P. 32(d)(3) (Objection to the relevancy or

materiality of testimony is not waived for failure to object during the taking of a deposition unless

the ground of the objection is one that could have been addressed at the time.). The plaintiff also

seeks to strike statements on page 363 regarding how much time Dr. Forshey spent on drafting an

email as compared to time she spent marketing, contending that such statements are conclusory or

speculative. Dkt. 159 at 11. Jennifer Alexander’s statement reflects her feelings and perceptions as

to Dr. Forshey’s amount of time and should not be excluded as conclusory or speculative. See

Dkt. 152-3, Exh. 9 at 15 (“I felt that, and I specifically remember saying this to a colleague, that if

she had spent this much time marketing as she had writing this email, she wouldn’t have needed

to.”). Dr. Forshey also seeks to strike Jennifer Alexander’s opinion as to whether Dr. Forshey’s

professed marketing efforts lead to a typical or reasonable amount of business for the practice.

Dkt. 159 at 11. Such opinion testimony concerns specialized knowledge and is inappropriate from

a lay witness. See Fed. R. Evid. 702. Dr. Forshey’s final objection to Jennifer Alexander’s

deposition testimony is that certain pages lack foundation regarding relevant comparators and

contain irrelevant evidence in so far as they express an opinion as to whether Dr. Forshey received

adequate notice of termination. Dkt. 159 at 11. It is unclear to the Court which specific

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statements Dr. Forshey seeks to strike on pages 380-381, and the Motion to Strike should

therefore be denied in this respect. 

Sixth, Dr. Forshey moves to strike Exhibit 10 to the Meade declaration as lacking in

foundation and inadmissible hearsay. Exhibit 10 is apparently an email exchange between Jennifer

Alexander and Jennifer Flint. See Dkt. 152-3, Exh. 10 at 23. The foundation for this document is

unclear, and it should therefore be stricken.

Seventh, the plaintiff moves to strike portions of the deposition of Mario Parisio. When

asked whether he gave the defendants an opinion as to whether there was cause to terminate Dr.

Forshey, Mr. Parisio stated that he told the plaintiffs that he believed there was cause to terminate

Dr. Forshey. Dkt. 152-3, Exh. 13 at 38-39. This statement was a statement of fact as to what Mr.

Parisio said. While it contains an opinion, it need not be stricken under Federal Rule of Evidence

702.

Eighth, the plaintiff moves to strike portions of the Ornburn deposition in which Angela

Ornburn states that she would expect her employer to be upset with her if she were to use

profanity against her employer. Dkt. 159 at 11; see Dkt. 152-4, Exh. 14 at 7. This witness’

opinion as to how her employer, who is not a party to this case, might react if the witness were to

behave as Dr. Forshey allegedly behaved is not relevant and does not constitute proper lay witness

testimony. The Motion to Strike should be granted in this respect.

Ninth, the plaintiff moves to strike Exhibit 17 to the Meade declaration. Exhibit 17 is

apparently Dr. Erickson’s notes of a conversation he had with Dr. Forshey on August 13, 2004.

See Dkt. 152-4, Exh. 17 at 33-34. This document is not signed. The document was apparently

authenticated at page 268 of Dr. Erickson’s deposition. See Dkt. 152-4, Exh. 16 at 2 (Exhibit

list); Dkt. 152 at 4. To the extent that the document merely restates the conversation between Dr.

Erickson and Dr. Forshey, the document constitutes hearsay and should be stricken.

Tenth, the plaintiff moves to strike Exhibit 23 to the Meade declaration. Exhibit 23 is a list

of events that allegedly occurred on August 12, 2004. Dkt. 152-5, Exh. 23 at 11. The document is

not signed. The document was apparently authenticated at page 178 of Ms. Erickson’s deposition.

See Dkt. 152-4, Exh. 18 at 2 (Exhibit list); Dkt. 152 at 5. This document should be stricken. 

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Eleventh, the plaintiff moves to strike Exhibit 24 to the Meade declaration as inadmissible

hearsay and as lacking in foundation. Dkt. 159 at 11. Exhibit 24 is a letter from Ruth Sheppard to

the Washington State Department of Employment Security stating that “the tensions in the office

where [sic] extremely stressful.” Dkt. 152-5, Exh. 24 at 13. The defendants have not yet laid a

foundation for this statement, and the Motion to Strike should be granted in this respect.

Twelfth, the plaintiff moves to strike the expert report of Dr. Bierne as lacking a

foundation because there is no reference to the evidentiary standard of proof for medical opinions.

The plaintiff also contends that opinions expressed the expert report conflict with a subsequent

appellate case. Dkt. 159 at 12. These contentions speak to the credibility and persuasiveness, not

the admissibility, of the report. The Motion to Strike should be denied in this respect.

Thirteenth, the plaintiff moves to strike testimony of Kimberly Innocent as improper

character evidence under Federal Rule of Evidence 404. Dkt. 159 at 12. The plaintiff fails to

identify the specific statements she seeks to strike, and the Motion to Strike should therefore be

denied in respect.

Fourteenth, the plaintiff moves to strike Exhibit 1 to the Galusha declaration as hearsay.

Dkt. 159 at 12. The plaintiff fails to identify which portions of the exhibit constitute hearsay, and

the Motion to Strike should therefore be denied. 

Finally, the plaintiff moves to strike Exhibit 1 to the declaration of Anne Erickson as

hearsay and lacking foundation. Dkt. 159 at 12. This exhibit consists of a memorandum written by

Janis Galusha. To the extent that the exhibit documents events that Ms. Galusha did not witness

and statements made by other parties, the Motion to Strike should be granted. 

IV. ORDER

Therefore, it is hereby

ORDERED that the Plaintiff’s Motion for Summary Judgment on Contract Claims (Dkt.

92) is GRANTED only as to the bonus compensation and double damages owed to Dr. Forshey

under the Associate Agreement and is otherwise DENIED; that Dr. Forshey is entitled to

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judgment in the amount of $6,295.29; that the Plaintiff’s Motion for Summary Judgment on

Counterclaims (Dkt. 93) is GRANTED as to the counterclaim for tortious interference with

business expectancies and GRANTED in part and DENIED in part as to the counterclaim for

breach of contract, as provided herein; and that the plaintiff’s Evidentiary Motions to Strike

contained in the reply (Dkt. 159) are GRANTED and DENIED as provided herein.

The Clerk of the Court is instructed to send uncertified copies of this Order to all counsel

of record and to any party appearing pro se at said party’s last known address.

Dated this 24th day of July, 2007. 

ARobert J Bryan

United States District Judge

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