Investigate with Care: Washington Court Addresses Post-Incident Reports
Washington employers will want to take note of a recent appellate decision when scoping, documenting, and communicating workplace investigations.
When faced with a serious workplace complaint, safety event, compliance concern, or operational failure, organizations often respond by initiating an investigation. The objectives of such investigations are often twofold: understand what happened and determine how to prevent it from happening again. A recent Washington Court of Appeals decision is an important reminder that an investigation and the remedial measures it prompts may receive different evidentiary treatment in later litigation.
In Danielson v. Seattle Children’s Hospital, Division One held that Washington Evidence Rule 407 did not require exclusion of a post-event investigatory report. 87793-3-I, 2026 WL 2224671 (Wash. Ct. App. July 31, 2026).[1] The court explained that ER 407 applies to evidence of actions actually taken to remedy identified flaws or failures—not to an investigation into what went wrong or the resulting report’s findings and recommendations.
What happened in Danielson v. Seattle Children’s Hospital
Dr. Benjamin Danielson sued Seattle Children’s Hospital under the Washington Law Against Discrimination, alleging a racially hostile work environment and retaliation. After Dr. Danielson resigned, the hospital retained an outside law firm to investigate and assess racial equity in the hospital. The resulting report included findings and recommendations, including a finding that the hospital had not adequately investigated or addressed an allegation that a leader of an affiliated research institute had used a racial slur when referring to Dr. Danielson.
The hospital sought to exclude the report under ER 407, which generally prohibits using evidence of post-event remedial measures to prove negligence or culpable conduct when those measures, if taken earlier, would have made the event less likely to occur. The trial court admitted the report and declined to instruct the jury that it could not consider the report as evidence of culpability. The jury ultimately returned a $21 million verdict, and the Court of Appeals affirmed the judgment, including the trial court’s ER 407 ruling.
Why ER 407 did not exclude the report
The court drew a distinction between investigating a problem and taking action to fix it, stating that ER 407 does not protect reports or investigations into what went wrong. Rather, the protected measures are the actions taken to remedy failures identified by the report.
The hospital argued that the report served both investigatory and remedial purposes because it contained findings and recommendations. That was not sufficient to bring the report within ER 407. The court emphasized that the report itself was not evidence that the hospital had actually implemented remedial measures. It also found no evidence that the particular finding about the inadequate response to the racial-slur allegation served a remedial end. On that record, the trial court did not abuse its discretion by declining to give the requested limiting instruction.
Importantly, Danielson addresses only ER 407 as a basis for excluding or limiting consideration of the report. It does not establish that every post-event report is admissible or resolve whether a particular report may be protected or excluded under the attorney-client privilege, work-product doctrine, ER 403, or other applicable law.
Practical considerations
Danielson serves as an important reminder that an investigation does not become a subsequent remedial measure merely because it is undertaken after an event or includes recommendations. Accordingly, as Danielson illustrates, ER 407 alone may not bar investigative findings or recommendations; if otherwise admissible and not privileged, they could later be presented to a judge or jury.
The practical lesson is not to avoid post-event investigations or delay corrective action. Organizations should continue to investigate serious incidents and address identified problems promptly, while making thoughtful choices about how an investigation is scoped, documented, and communicated.
This article is for general informational purposes only and does not constitute legal advice. Labor & employment law is fact-specific, and readers should consult qualified legal counsel regarding their individual circumstances.
Sarah Gohmann Bigelow’s commercial litigation experience, encompassing a variety of cases in both state and federal courts, is marked by her in-depth legal knowledge, strategic thinking, creative problem solving, and robust litigation skills. She has been actively involved in all stages of litigation, dealing with disputes arising from business torts, contracts, fiduciary duties, class actions, and employment claims. She can be reached at sgohmann@fennemorelaw.com.
[1] Available at https://www.courts.wa.gov/opinions/pdf/877933%20Order%20and%20Opinion.pdf.