Williamson v. O’Brien (CA1 5/16/17)

Do judges ever remind you of your kids fighting in the back seat?

In December, Division One issued Passmore v. McCarver – a memorandum decision so we did not review it – holding that dismissal under 12-2603 (failure to file an expert opinion in a med mal case) can be with prejudice. In March, a different panel of Division One used a pro se case (which would normally result in a memorandum) and perhaps an expansive view of what was at issue there to produce Boswell v. Fintelmann, holding that a 12-2603 dismissal must be without prejudice.

It would be interesting to know whether the Boswell panel knew that in January McCarver had asked that his opinion be published; in any event, that request was granted and Passmore was published in April. And so now, in May, we get Williamson, which is effectively Boswell – same panel, same holding, also a pro se case – with the addition of a paragraph criticizing Passmore.

Apparently there is some serious arguing going on over there since the only conceivable reason to issue an opinion in this case is to take a publicized shot at Passmore; for all we know that’s what they had in mind with Boswell, too.

Williamson teaches that failure to file the affidavit is a “substantive pleading failure” and not a failure to prosecute. Passmore said the opposite but is wrong, according to Williamson, because Passmore cited a case that said in passing that the statute applies to an “expert witness.” Jilly (2009), however,  later held that the statute doesn’t necessarily apply to an expert trial witness – the affidavit can come from someone else – and that’s why it doesn’t violate the Supreme Court’s rulemaking authority. Whether that begs the question we leave as an exercise for the reader.

(Opinion: Williamson v O’Brien)

Wal-Mart Stores v. Hon. Lemaire (CA1 5/11/17)

Opinions on personal jurisdiction too often get turned into primers, recounting once again the long string of cases since Pennoyer v. Neff; that’s easy and lends perfunctory analysis an air of substance. Fortunately, this one is the other way around: a brief reminder of how the law works followed by extended analysis, mentioning the landmark cases only as necessary.

Plaintiff sued Wal-Mart here for a slip-and-fall in Oregon. Wal-Mart moved to dismiss for failure of jurisdiction. The trial court denied it, holding that Arizona has general jurisdiction over Wal-Mart, a Delaware company with its principal place of business in Arkansas. Wal-Mart took special action.

The Court of Appeals accepts jurisdiction and grants relief, directing the trial court to dismiss without prejudice.

Plaintiff argued firstly that Arizona has general jurisdiction because Wal-Mart has a statutory agent here. She cited Bohreer (App. 2007), which held that insurance companies – by authorizing, as a statute requires them to do, the Director of the Department of Insurance to be their agent for service of process – consent to general jurisdiction. Another statute requires foreign corporations to have a stat agent here. But the court holds that that does not “create general personal jurisdiction over foreign corporations, either by prescription or consent.” “Had the Legislature intended to endow Arizona courts with the ability to hear all cases (including those in which Arizona has no interest) against all registered foreign corporations, it would have said so.” “A corporation cannot fairly be deemed to have consented to waive its due-process rights when, as here, the statutes gave no notice that such a waiver is the price of registration.” Some courts hold otherwise but the opinion, discussing various U.S. Supreme Court cases, says that their implied-consent analysis, based on Pennoyer, has been superseded by  the “modern” doctrine of specific jurisdiction.

Plaintiff also argued that the extent of Wal-Mart’s activities in Arizona – its one of our largest employers, apparently — make it “present” here.  Wal-Mart argued that under the U.S. Supreme Court cases of Goodyear and Daimler  a corporation can be present only in its states of incorporation and principal place of business. The court declines to qo quite that far, holding that there can be additional presence in “exceptional cases.” But “exceptional” is not a matter of size; “we hold that the magnitude of a corporation’s business activities in Arizona is not sufficient to create general jurisdiction.”

Wal-Mart argued, by the way, that Goodyear and Daimler overruled Bohreer. The court sidestepped that, putting off having to face that problem until another day when the issue is more squarely presented.

(Opinion: Wal-Mart Stores v. Hon. Lemaire/Buss)

Gersten v. Sun Pain Management (CA1 4/18/17)

An odd lawsuit and a bit of an odd appeal concerning whether using marijuana lets you force your doctor to treat you.

Defendant treated Plaintiff for chronic pain. When Plaintiff got a medical marijuana card Defendant discharged him. Plaintiff sued, arguing that the statute – medical marijuana use “does not . . . otherwise disqualify [the patient] from medical care’ – creates a private right of action. Plaintiff sought not only damages (though one wonders what they would be since he still needed a medical marijuana card) but also a mandatory injunction that Defendant continue to treat him! Defendant moved to dismiss for failure to state a claim.

At least in theory. Although the motion was captioned 12(b)(6) Defendant apparently argued in large part that using marijuana was against his medical advice. He proposed findings of fact to support that even though he hadn’t presented any evidence. Over Plaintiff’s objection, the trial court adopted them and granted the motion on that basis. (Which means that, although we just made fun of his lawsuit, Plaintiff seems to have been the only one in the lower court who knew or cared about rules of evidence or procedure.)

The Court of Appeals affirms. But it first clarifies the issue: “The only issue properly presented . . .  is whether a registered qualifying medical marijuana patient may assert a private cause of action.” The court addresses that issue, disregarding the findings of fact. In other words, it addresses an issue that wasn’t the basis of the trial court’s decision, reversing that court in order to affirm  it..

The court concludes that the statutory language was intended to ensure that medical-marijuana users be treated the same as non-users. It does not regulate the physician-patient relationship and “imposes no affirmative obligation on a physician to treat or continue
treating a . . . patient.”

(Opinion: Gersten v. Sun Pain)