Boswell v. Fintelmann (CA1 3/9/17)

A brief opinion issued to discuss the nature of dismissal of a malpractice action for failure to file an expert affidavit.

Plaintiff sued his eye doctors without an affidavit. The trial court ordered him to file one; he didn’t. The court dismissed with prejudice. Plaintiff appealed.

The Court of Appeals first notes that it reviews the matter de novo. The court said the same thing earlier this year (Romero v. Hasan) but cited a 12(b)(6) case. Perhaps feeling the problem with that, the court adds that de novo review is appropriate because failure to file the affidavit “is a pleading failure.”

Plaintiff apparently wanted to make a number of arguments but was pro se and didn’t know how. Some of them the court says he waived, others it rejects summarily.

But, though its not clear that this is among the arguments Plaintiff tried to make, the court concludes that dismissal should have been without prejudice. Such a dismissal “is not tantamount to dismissal for failure to prosecute.”  The dismissal order cited Rule 37(b)(2) but the court says that it is not “a sanction for a discovery violation” and that in any event the rule doesn’t allow dismissals with prejudice for violation of 12-2603. The court apparently thinks these things self-evident as it does not explain them, which again makes us wonder — admittedly without knowing — whether the issue was argued on appeal.

In fairness, the court also mentions the right answer, which is that dismissal is without prejudice because the expert-affidavit statute, 12-2603(F), says so.

Judgment changed to without prejudice and affirmed as modified.

(Opinion: Boswell v. Fintelmann, et al.)

Gullet v. Kindred Nursing Centers (CA2 2/15/17)

The court discusses whether an arbitration agreement is unconscionable and allows discovery on the issue.

Plaintiff’s father died in a nursing home. Plaintiff sued for, among other things, violation of the Adult Protective Services Act. Defendant moved to compel arbitration, the father having signed an arbitration agreement upon admission. Plaintiff argued that the agreement was substantively unconscionable and that discovery should be allowed on whether it was procedurally unconscionable. The trial court granted the motion; Plaintiff appealed.

On substantive unconscionability the Court of Appeals affirms.

Plaintiff argue that the agreement unreasonably restricted discovery. It allowed standard paper discovery but with limits different from the rules of procedure, allowed depositions of six fact witnesses and two experts, and such other discovery as the parties or arbitrator thought “necessary and proper.” “The amount of discovery is not so low and the burden to obtain more so high that the Agreement denies litigants the opportunity to conduct discovery sufficient to adequately arbitrate [sic]  . . .”

Plaintiff also argued that the agreement was unfair because the arbitration agency used by Defendant – and thus arguably financially biased toward it – supplied the list of arbitrators. But the parties could agree to use other arbitrators and, if they didn’t agree, could use the each-pick-your-own-and-they-pick-a-third process. This was not “fundamentally unfair.”

On procedural unconscionability the court reverses. Plaintiff had no evidence of it but said that was because his father was dead so he needed to do discovery to find out if there was any. The court agrees. When he signed the agreement Plaintiff’s father was “a man requiring in-patient care because of serious health problems . . . who died approximately one month later.” That’s enough for the court to decide, analogizing to summary-judgment cases, that Plaintiff should have a chance to explore the issue.

“On the issue of procedural unconscionability, we vacate and remand . . .” Well, no. “Vacate” is something the Supreme Court occasionally does to opinions from the middle courts but not something they can do to this trial court’s ruling. Its reversed but its still on the record. Odd – telling, perhaps? – that such a mistake got through.

(Opinion: Gullet v. Kindred Nursing Centers)

Orosco v. Maricopa County Special Health Care Dist. (CA1 1/2/17)

A simple but interesting point about offers of judgment.

In this med-mal case Plaintiff had made two offers, almost one year apart. The verdict exceeded both. The question was whether the interest sanction should run from the time of the first or of the second. The trial court used the first; Defendant appealed.

The Court of Appeals affirms. Defendant relied on a Nevada case to the effect that the second offer wipes out the first. “The weight of the authorities construing similar state court rules, however, is to the contrary, when, as here, the judgment finally obtained is less favorable to the offeree than both offers.” The court feels that a contrary rule could inhibit the making of offers and thus reduce chances of settlement.

In this and a separate memo the court also deals with other issues but the part about OJs is the take-away.

(Opinion: Orosco v. MCSHCD)

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