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of other evidence presented in the
case to determine whether sufficient
evidence raises a factual issue….
In striking Treciak’s declaration,
the trial court ruled that it was
inadmissible. This is contrary to
DCR and the trial court erred in
State Farm Mut. Auto. Ins. Co. v. Treciak, 117 Wash. App. 402, 407-08 71
P.3d 703 (2013).
If an explanation of the contradiction
is offered, then the issue is simply one
for the trier of fact. On December 29,
2014, the Court of Appeals reversed the
trial court’s application of the Marshall
Rule, where the (a) party (Taylor) had (b)
offered an explanation of his prior, con-
… whether the explanation is plau-
sible is an issue to be determined
by the trier of fact. Safeco Ins. Co.
v. McGrath, 63 Wash.App. 170, 175,
817 P.2d 861 (1991).
Taylor v. Bell, P.3d ----, 2014 WL
7387790, (2014, WL at p. 11).
In conclusion, if a judge applies the
Marshall Rule to exclude evidence, it is
If a judge finds contradictory statements insufficient to survive summary
judgment, that is clear error if party provides an explanation for the contradiction, as the plausibility of that explanation is a jury question.
The Marshall rule is a narrow rule
that a sworn statement of a party that
contradicts prior sworn testimony is
insufficient — without explanation or other
witness or documentary support — to
create a genuine issue of material fact to
survive summary judgment.
Craig A. Mason, Spokane
CORRECTION: The article “A
Brief History of the Death Penalty In Washington” (March 2015
NWLawyer) stated that, until recently, all counties except King
have abandoned the death penalty,
when, in fact, the death penalty has
been sought in other Washington
counties, in recent years.
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