Washington appellate judges appeared skeptical Thursday that a handful of comments could've triggered jury bias and tainted the trial of a Palestinian woman's medical malpractice case, though one judge called it "troublesome" that defense counsel told jurors the accused doctor was "from this part of the world."

Joumana Alhayek has urged the three-judge panel of the Washington Court of Appeals to undo a jury verdict in favor of a Washington doctor and OB-GYN practice, contending that the defense attorney potentially stoked racial prejudice in the jury by referring to Dr. Kathryn Miles as "from this part of the world" while describing her background during opening arguments of the 10-day trial. But Judges Robert Lawrence-Berrey and Tracy Staab questioned whether that comment and a few others were enough to show a reasonable observer could deem race a factor in the jury's decision.  

"This part of the world – that's a little bit problematic," Judge Lawrence-Berrey said during the hearing. "That was somewhat troublesome — even troubled the trial court."

But Judge Lawrence-Berrey also noted the few remarks that the plaintiffs expressed concerns about were apparently not enough to convince the trial court judge that a new trial — or even a hearing to vet the verdict for racial bias — was warranted.

"The trial judge seemed to think that, all in all, a jury could not have based its verdict on racial stereotypes," the judge said.

Alhayek and her husband, Nicholas Phillips, attempted to show over the course of the roughly three-week trial in Spokane in 2023 that the doctor and Northwest OB-GYN PS were negligent in caring for her during the birth of her second child and failed to get informed consent for a procedure that caused her uterus to rupture and resulted in other health issues.  The couple urged the appellate panel on Thursday to order a new trial or, at least, an evidentiary hearing to determine whether ethnic or racial discrimination played a role in the jury's decision in favor of the defense.

Judge George Fearing asked the plaintiffs' counsel to distinguish the case from the Court of Appeals' recent ruling in Simbulan et al. v. Northwest Hospital & Medical Center, rejecting a similar appeal by an immigrant family that lost a medical malpractice case.

Christopher M. Hogue of the Hogue Law Firm, representing the couple, said his clients have not protested the mere mention of cultural or immigration issues at trial, like the Simbulan family did. Instead, Alhayek and her husband have cited defense comments encouraging "othering" or invoked an "us-versus-them" mentality among the apparently all-white jury evaluating the claims of the mother, a Palestinian immigrant.

The plaintiffs say while introducing Dr. Miles and detailing her eastern Washington roots during opening statements, the defense counsel also described Spokane as "her town." Hogue said the defense counsel used "dog whistles and coded language" again during closing arguments by describing Alhayak's family as "close-knit," appealing to stereotypes of people drawn together by cultural ties.

But Judges Lawrence-Berrey and Staab seemed uncertain that the closing comment had race-based undertones.

"Usually when we hear the word dog whistle, we think of something pejorative," Judge Lawrence-Berrey said. "'Close knit family' — certainly in my view — isn't pejorative at all. In fact it's a compliment that somebody's family is close-knit."

Howard M. Goodfriend of Smith Goodfriend PS, representing the doctor and the clinic, said the defense attorney made the comment in closing to respond to trial testimony from family members who corroborated Alhayek's claims. The defense contended throughout the trial that she was an intelligent woman, model patient and competent English-speaker who did not need an interpreter to understand the risks of the procedure at issue, Goodfriend said.

"The content of subject of questions to the witnesses over 10 days of testimony did not once — did not once — paint the plaintiffs or Mrs. Alhayek in a negative light," Goodfriend said. "We're talking about an isolated statement in opening and a benign reference to 'close-knit' families and proper argument about witness bias."

The judges acknowledged that a key question is whether the comments meet the criteria for such an evidentiary hearing outlined the 2022 Washington State Supreme Court decision in Henderson v. Thompson: whether an "objective observer" who is aware of implicit or unconscious racial biases could view race as a factor in the decision.

But Judge Staab noted that, in the Henderson case, the Black plaintiff who successfully showed her trial loss was impacted by prejudice pointed to specific statements by the defense counsel and tied each of them to studies and law review articles about historical bias.

"I don't see any of that in your briefing," Judge Staab told Hogue.

Hogue maintained the comments cleared the bar set in Henderson for a new trial, which the state Supreme Court purposefully set low to "eradicate" racial bias from jury verdicts.

"Eradication means zero tolerance — that's why the standard is there," Hogue said.

Judges Robert Lawrence-Berrey, George Fearing and Tracy Staab sat on the panel for the Washington Court of Appeals.

Joumana Alhayek and her husband Nicholas Phillips are represented by Christopher M. Hogue of the Hogue Law Firm and J. Gregory Casey of J. Gregory Casey PLLC.

Dr. Kathryn Miles and Northwest OB-GYN PS are represented by Howard M. Goodfriend and Catherine W. Smith of Smith Goodfriend PS and Stephen M. Lamberson and Ronald A. Van Wert of Etter McMahon Lamberson Van Wert & Oreskovich PC.

The case is Joumana B. Alhayek et ano. v. Kathryn Miles M.D. et al., case number 399893, in the Washington Court of Appeals, Division III.

--Editing by Rich Mills.