Hon. Thomas McPhee (Ret.)

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Hon. Thomas McPhee (Ret.) brings to dispute resolution at JAMS more than 45 years of legal experience as JAMS neutral, judge, and trial lawyer. He served 22 years on the Thurston County Superior Court, retiring in 2013 with a statewide reputation as a jurist committed to hard work and intellectual curiosity in all matters related to law and justice. He joined JAMS with the same commitment, and brings an engaged, evaluative approach to his practice as a mediator, arbitrator, and discovery master.

On the court, Judge McPhee focused on civil litigation. His bench trial experience encompassed every aspect of civil law. He presided over class actions involving state and local governments, hundreds of asbestos cases, complex discovery issues before and after e-discovery, and many constitutional challenges. He was a trial lawyer in private practice for 20 years, trying cases in Federal Court and in nearly every county in western Washington. His wide experience included successful trials ranging from shopping center construction to first degree murder to million dollar railroad crossing cases.

Judge McPhee has a career-spanning commitment to negotiation and mediation. As judge, he required dispute resolution in all civil cases, and has conducted more that 300 settlement negotiations; as trial lawyer, he was an experienced and successful negotiator.

Read counsel comments about Judge McPhee's skills and style as a neutral.

ADR Experience and Qualifications

  • Twenty two years of experience serving as a judge on the Thurston County Superior Court
  • Over 43 years of legal experience, including 21 years as a trial lawyer
  • Consistently recognized as a top rated judge by practicing attorneys. WSAJ Judge of the Year, 2013.

Representative Matters and Experience

  • Arbitration
    • Judge McPhee serves as an arbitrator in all types of cases listed in the categories below. His experience as arbitrator is included for each category immediately following his mediation experience. Judge McPhee has developed arbitration forms and procedures designed to make arbitrations efficient and cost effective tools for just and speedy resolution of disputes
  • Business/Commercial
    • Mediated shareholder dispute between engineering firm and engineers whose companies had merged, regarding issues of payment and quality of work done
    • Mediated dispute among partnership groups for largest supplier of electronic equipment to Alaska fishing and crabbing industry. Claims involved failure to account, fraud, and money laundering
    • Mediated cases involving dissolution and liquidation of closely held corporations, including sub-S liabilities and buyouts – e.g., dissolution of a tech startup, involving issues of distribution of partially finished intellectual properties
    • Mediated claim for years of fraud and misappropriation involving auto dealer’s accounting and inventory records
    • Mediated claim for breach of distribution contract between manufacturer of environmental cleaning products and west coast distributor
    • Mediated claim for recovery of fraudulent loan fees related to a $24 million loan from foreign lending institution
    • Arbitrated breach of contract claim against auto dealer group involving stock options and bonuses
    • Arbitrated claims for minority shareholder oppression, breach of contract, breach of employment agreement arising out merger of two regional electrical contractors
    • Arbitrated claims against for-profit university for violation of Consumer Protection Act and breach of contract to provide an advanced degree education. This was the first arbitration of more than 20 similar cases, all of which settled a short time later
    • As judge, decided legions of cases involving business regulation, licensing, and taxation in addition to private business and commercial disputes
  • Class Action/Mass Tort
    • Mediated class action against national health care provider for bill collection practices. Three mediation sessions over 10 month period; settled for $7.5 million
    • As judge, conducted trial of 7,000 members in two classes against DSHS for breach of contract and Medicaid standards. Concurrent bench and jury trial resulted in judgment exceeding $50 million
    • As judge, presided over landfill odor toxic tort class action. Settlement on eve of trial followed by long process of resolving competing claims of hundreds of class members. Worked with experts to develop claim classifications; litigated some class claims, and resolved all others by settlement
    • As judge, extensive experience (more than 10 cases) adjudicating class action certification actions
    • As judge, presided over hundreds of asbestosis and mesothelioma first party and industrial insurance subrogation claims over a three-year period. Worked with lead counsel to develop process for expeditiously resolving legal and evidentiary issues, then moving to a negotiated settlement track
  • Construction
    • Mediated claims by condominium owners against architect and general contractor for water intrusion caused by design and construction defects
    • Mediated claim by water district against city for negligent design/construction of storm water containment facility
    • Mediated claim for trespass of water onto a golf course; contractor did work for salmon habitat restoration that caused golf course to flood during storms, rendering the course unusable
    • Mediated dispute over construction of high value home and associated structures involving counterclaims for specific performance and damages
    • Mediated dispute over extensive remodel of Lake Washington home, including issues of planning and performance of construction
    • Mediated construction lien dispute between general contractor and subcontractor over non-payment of supplier and failure to indemnify
    • Mediated dispute over construction of a cutting edge “green” residence on Puget Sound, relating to green construction practices and effectiveness of green features
    • Mediated dispute between rental owner and general contractor over extensive remodel involving ADA compliance requirements
    • Mediated dispute between adjoining property owners over construction of large concrete retaining wall on commercial property with an easement
    • Mediated dispute over construction of an access road in violation of county permits. Dispute involved rights to vacated railroad right of way
    • As judge, adjudicated numerous bidding, award, and performance claims involving public works construction contracts with the Departments of Transportation, General Administration, and Social and Health Services
    • As judge, adjudicated claims by commercial tenants against general contractor for toxic mold
    • Arbitration counsel for owner/developer in an arbitration related to construction defects in Hawk’s Prairie (Olympia) shopping mall; claims included more than 10 discrete items of breach and violation of construction standards
  • Employment
    • Mediated discrimination claim based on sexual orientation against a public entity
    • Mediated claim by engineer against large employer for hostile work environment, retaliation and stress induced permanent disability
    • Mediated claim by medical lab technician against national laboratory chain for race discrimination
    • Mediation claim by hearing impaired employee for failure to accommodate and discrimination based on disability
    • Mediated claim of physician for breach of employment contract by regional health care provider; substantial issues over ERISA retirement benefits and wage and hour claims
    • Mediated multi-million dollar wage claim by business manager against mortgage lender for failure to pay bonuses and breach of contract. Extensive counterclaims
    • Arbitrated wage claim (bonuses exceeding $1,000,000) brought by general manager of auto dealership
    • Arbitrated (as statutory hearing officer) in sexual orientation discrimination case brought by a teacher against a school district
    • Arbitrated (as statutory hearing officer) in teacher termination matter regarding claims of inappropriate language around students and discipline of students
    • As judge, considerable experience in all types of discrimination, wrongful discharge, whistle blower retaliation, and failure to accommodate cases. Very experienced in McDonald Douglas burden shifting analysis
  • Environmental/Natural Resources
    • Mediated claim for wrongful taking of shellfish and trespass on state owned tidelands
    • Mediated dispute arising out of extensive trade of timber parcels between DNR and private timberland owners. Mediation successfully concluded after 16 months of effort
    • Mediated dispute between successor owners of a Superfund cleanup site on Duwamish waterway
    • As judge sitting at the state capitol, extensive experience adjudicating agency actions under the State Environment Protection Act, the Growth Management Act, the Shorelines Management Act and the Forest Protection Act
    • As judge, adjudicated two matters under the Model Toxics Control Act (MTCA); adjudicated LUPA actions involving both private and public interests
    • As judge, decided a series of challenges to forest practice rules on state and privately owned forest land over a span of many years. All decisions of the Court were affirmed on appeal. The cases included:
      • Northwest Forest Cases. Dept. of Wildlife v. Dept. of Natural Resources / Washington Forest Protection Assoc. – TC 93-2-00103-4. A court conducted review of the Washington Spotted Owl recovery rules. Conducted a lengthy trial on the rule making record. The decision was not appealed.
      • NW Ecosystem – N.W. Ecosystem Alliance v. Forest Practices Board, TC 98-2-02392-6
      • ALPS 1 – Alpine Lakes Protection Society v. Dept. of Ecology, TC 03-2-01681-8
      • ALPS 2 – Alpine Lakes Protection Society v. Forest Practices Board, TC 03-2-00717-7
      • ALPS 3 – DNR / The Mountaineers / Plum Creek Timber v. Forest Practices Board, TC 02-2-00604-1.
  • Estates/Trust
    • Mediated dispute between son and stepmother over insurance proceeds of deceased father/former spouse
    • Mediated claim by successor trustee and beneficiaries against original trustee for breach of fiduciary duties regarding several trusts and highly disputed fact pattern
    • Mediated claim involving undue influence between estranged children of decedent and alleged caregiver
    • Mediated claims among children and surviving second spouse arising out of distributions from several vertical trusts
    • Mediated dispute between partner of decedent from committed intimate relationship and sister (residual beneficiary under the will); decedent was a coin dealer and collected firearms. Resolved at mediation but then arbitrated dispute over whether the IRA value should be included in the settlement
    • Arbitrated ownership rights to properties located in Washington and related to a payday loan business; properties were claimed by various non-profit trusts and the estate of the trustor, who had been convicted of fraud related to the loan business and had fled to Mexico
    • Judge McPhee served two years as estates/trusts and guardianship hearings judge in Thurston County. He is a past member of the Superior Court Judges Association Guardianship and Probate Committee and chaired two work groups for court improvement in those subjects
  • Government/Public Agencies
    • Mediated claim by telecommunications company for excise tax refund on revenue received from an interstate ISP
    • Mediated dispute between State Agency and Port over ownership of intensively developed property and the right to share in rental income; dispute had existed since 1930s, with numerous prior attempts at settlement
    • Mediated dispute between Hospital District and State Agency regarding classification of land use for taxing purposes
    • Mediated dispute between regional energy company and county over property taxes, exemptions and property valuation
    • Mediated penalty phase of Public Records Act case involving citizen and Public Utility
    • Mediated amount of penalty in action brought by Public Disclosure Commission against national trade organization for misleading political advertisements
    • Mediated claim for damages exceeding $1.5 million brought by private timberland owner against State Agency arising out of trade of hundreds of properties statewide, including misrepresenting restrictions on a parcel in the Columbia River Gorge
    • Mediated claim by Attorney General’s Office against a national business accused of operating a scam business selling real estate information to Washington residents. The claim for penalties exceeded $3 million
    • Mediated tort claims brought by claimants against various public agencies for employment discrimination, negligent training and supervision of case workers, wrongful (negligent) harvesting of marine resources, and trespassing
    • Mediated public records dispute between County and Private Landowner regarding use of vacant land next to Landowner’s property
    • Mediated dispute between State and manufacturing association regarding funding for an initiative
    • Mediated public records dispute between State and individuals regarding lead exposure while working on a remodel project of a gun dealer
    • Arbitrated dispute concerning claims for exemption in Public Records Act case brought by motorcycle club association against a City
    • Judicial Experience – representative cases
      • Evergreen Freedom Foundation v. Washington Education Association. Claim brought against WEA for campaign finance, reporting, and contribution violations of state and federal law. After a long, contentious bench trial, judgment was entered and was affirmed on appeal by State Supreme Court
      • Evergreen Freedom Foundation v. Washington Education Association. Claim brought against WEA for campaign finance, reporting, and contribution violations of state and federal law. After a long, contentious bench trial, judgment was entered and was affirmed on appeal by State Supreme Court
      • Sanders v. State of Washington. Suit by sitting Supreme Court Justice against Washington Attorney General for violation of Public Records Act seeking $1 million penalty. Bench trial decision was affirmed on appeal by State Supreme Court. This case is one of a myriad of cases brought under the Public Records Act and Public Disclosure Act decided by Judge McPhee
      • School Districts’ Alliance v. State of Washington, A statewide alliance of school districts sought judgment that the state was unconstitutionally underfunding special education. Bench trial decision was affirmed on appeal by State Supreme Court
      • North American Dealers Co-op v. Office of Insurance Commissioner. Bench trial regarding legality of car dealers’ money back guarantee program.
      • Adjudicated the constitutionality of the taxing scheme for construction of Safeco Field, home of the Seattle Mariners
      • Adjudicated tax refund claim brought by operators of intermodal freight operations at the Port of Seattle, involving the taxation of giant cranes at the port.
      • Administered claim of negligent investment of state pension funds. Pretrial management of massive accounting records discovery issue
  • Insurance
    • Mediated insurance claim for employee embezzlement and theft. After mediating to impasse the parties accepted the mediator's proposal
    • Mediated claims, cross-claims, and reservations of rights among insurance companies related to injury claims in watercraft collision
    • Mediated multiparty insurance and bonding dispute among general and subcontractors including claims to pierce corporate veil
    • Mediated dispute between insurance brokers over transfer of one broker’s book of insurance company clients
    • Arbitrations: UM/UIM claims arbitrated to conclusion on a one-day schedule
  • Personal Injury/Torts
    • Mediated claim against government entity for negligent investigation involving adults claiming they were abused while children in foster care
    • Mediated claim by injured school district employee against general contractor, subcontractors, and manufacturer of defective equipment
    • Mediated case of boating accident involving eight individuals with varying degrees of injury
    • Mediated injury claim by incarcerated claimant against Department of Corrections for negligence and failure to care/protect
    • Arbitrations: UM/UIM claims arbitrated to conclusion on a one-day schedule
    • As judge, heard and decided broad range of personal injury/tort claims, including
      • Consumer strict liability torts
      • Libel
      • Federal Employers Liability Act cases
      • Toxic torts
      • First and third party insurance claims, including bad faith
      • Empty chair and contribution disputes
  • Professional Liability
    • Extensive experience as JAMS mediator and arbitrator and as judge with professional liability law involving:
      • Claims against accountants, architect/engineers, healthcare professionals, professional guardians, and real estate brokers
      • Claims against individuals, professional work groups, and hospitals
      • Claims against public officials (public duty doctrine cases)
      • Claims adjudicated include negligent acts, informed consent, failure to disclose, and violation of express warranties
      • Claims involving empty chair and contribution issues
      • Discovery issues in professional liability law, including medical privacy issues and electronically stored information
    • Representative cases include:
      • Mediated claim with insurer of massage therapist accused of molesting clients; settlement involved resolution of insurer’s reservation of rights based on intentional acts
      • Arbitrated (private trial judge) medical malpractice case against ER physician in wrongful death claim
      • As judge, adjudicated suit for negligent investment of state retirement funds in REITs brought by state employees retirement board against a national life insurance company. Extensive summary judgment litigation and discovery disputes involving three warehouses of documents
      • Very contentious medical malpractice suit against individual radiologists and medical groups where plaintiff’s death was imminent. Court put case on a fast track to resolve significant liability and evidence issues so that parties could negotiate while plaintiff was alive. The goal was accomplished and settlement concluded during plaintiff’s life
  • Discovery Master
    • Judge McPhee has a developing expertise in issues related to discovery of electronically stored information. He is a member of The Sedona Conference Working Group 1 (ESI) and regularly attends the TSC Institute training. He is a fellow in the Academy of Court Appointed Masters. Judge McPhee has lectured on discovery issues and ESI to the Superior Court Judges Association, the Office of the Attorney General, county and state bar association sponsored CLEs, and for-profit organizations (NBI and The Knowledge Group). He has been appointed discovery master in King, Pierce, and Thurston counties.
    • Representative appointments:
      • Discovery master in multi-party medical malpractice case involving out of control discovery disputes and motion practice. Instituted a very specific and even-handed discovery plan
      • Discovery master in Public Records Act cases to determine application of claimed exemptions by in camera examination
      • Discovery master in insurance bad faith claim for in camera examination of plaintiff’s attorney files and work product in response to discovery demands by defendant insurance company.

Honors, Memberships, and Professional Activities

  • Presenter, Mediation Ethics, Washington Defense Trial Lawyers CLE, 2014
  • Named Judge of the Year, Washington State Association for Justice, 2013
  • Member, The Sedona Conference, Working Group 1: Electronic Document Retention and Production
  • Former Trustee, Superior Court Judges’ Association
  • Former Chair, Board for Judicial Administration Litigation Time Standards Task Force
  • Former Chair, SCJA Guardianship Tools for Court Workgroup
  • Former Member, Family and Juvenile Court Improvement Program Steering Committee
  • Former Member, Justice in Jeopardy Implementation Committee
  • Former Member, SCJA Judicial Education Committee
  • Former Member, SCJA Guardianship and Probate Committee
  • Past President, Thurston County Bar Association
  • Past President, Thurston Youth Services
  • Former Member, WSBA Education Committee
  • Presenter, Electronically Stored Information and Discovery, AGO CLE, 2012
  • Presenter, Judicial Review of APA Cases, AGO CLE, 2010
  • Presenter, Dependency, FCIGP, 2009
  • Presenter, Guardianship Case Management, SCJA CJE and Court Administrators Conference, 2009
  • Presenter, Lincoln on Professionalism, WSBA CLE, 2009
  • Presenter, Unified Family Court Practice, Family Court Improvement Grant Program, 2007
  • Presenter, Civility & Professionalism in the Courtroom, WSBA Young Lawyers CLE, 2005
  • Presenter, Motion Practice, TCBA CLE, 2005
  • Presenter, Public Disclosure Act, AGO CLE, 2003
  • Presenter, Trial Briefs, WSBA Young Lawyers CLE, 2002
  • Presenter, Pre-trial Preparation, WSBA Young Lawyers CLE, 2001

Background and Education

  • Judge, Superior Court, Thurston County, WA, 1990-2012
    • Presiding Judge, Thurston County, two terms
  • Trial lawyer, Olympia private practice, 1973-1990
  • Trial lawyer, Washington Attorney General’s Office, 1969-1973
  • J.D., University of Oregon, 1969
  • B.A., Political Science, Washington State University, 1966

Disclaimer

This page is for general information purposes.  JAMS makes no representations or warranties regarding its accuracy or completeness.  Interested persons should conduct their own research regarding information on this website before deciding to use JAMS, including investigation and research of JAMS neutrals. See More

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