We think we can figure out why the court did this. What we can’t figure out is why it didn’t say so.

The plaintiff’s decedent died after falling in a nursing home. She sought discovery of documents from the home’s quality assurance committee. The home resisted this based on a federal statute requiring that it have such a committee but protecting committee records from discovery. The trial court ordered production; on special action Division One rules that some of the documents were protected committee records, though emails with and reports from other people were not.

If you’re an elder-law-litigation type, or if you’ll love reading about 42 U.S.C. §1396r(b)(1)(B), then click the link below and dive in. We’re not and didn’t and that’s not what this blog is about; what interests us is that the Court of Appeals considered the case at all.

The problem is that the nursing home didn’t cite the right statute to the trial court. The Court of Appeals specifically finds that it “did not sufficiently argue §1396r before the trial court.” Yet the court accepts the special action, reverses the trial court in part, and grants relief, all on the basis of a statute purportedly not argued below.

Why? The court spends a long paragraph trying to explain this.

It cites a case for the proposition that appellate courts “may address waived issues to uphold a trial court’s ruling.” But this opinion reverses, in part; not addressing the waived issue would have upheld the trial court’s ruling.

The court cites a case for the proposition that it can apply “a legal principal . . . not raised before the trial court” if that “would dispose of an action on appeal and correctly explain the law.” But this is not an appeal; the matter need not be heard to be disposed of. An opinion based on the wrong law is not required. And even if it were an appeal calling for an opinion, a memorandum opinion could base the result on what was argued below while doing no damage to the law.

The court cites a case for the proposition that “[W]hen . . .  considering the interpretation . . . of statutes, we [cannot] be limited to the arguments made by the parties if that would cause us to reach an incorrect result.” “Because we view the §1396r argument as . . . correct . . .  we exercise our discretion to address it.” Sounds noble, doesn’t it? But since when is the “correct” result in an adversary system independent of the adversarial process? Why do we bother to file memoranda and briefs if the courts can use issues the parties chose not to or didn’t properly present? How have courts lost the ability to point out when necessary, even in a published opinion, that the result in a particular case resulted from the issues and arguments raised in it and would not necessarily obtain in other cases? But even that is beside the point; in this case the parties didn’t cite the wrong law to the court. The nursing home cited the right law – in what plaintiff argued, and the court agreed, was a patently defective way.  And nothing that either party did would require an incorrect result – even if you think of “correct” in a sort of Cartesian sense, removed from the earthly reality of the parties’ case – since the court was not required to reach any result.

The court has by this opinion established the principle that there are some cases in which not making an argument below will justify denying relief and some cases in which it will justify granting relief. The court can, it its “discretion,” consider that a waived argument was not waived if it deems the argument “correct.”

This of course does more damage to the law than any other disposition would have.

The pity is that the court could have avoided this almost completely just by explaining itself properly. The two statutes – the one the nursing home argued to the trial court and the one it argued to the Court of Appeals – are identical. They appear in different sub-sub-subsections of the statute (at one or two points the court itself gets confused about where the parentheses should go when citing them, though by the time you read the opinion this may have been corrected by one of those unannounced amendments that the Court of Appeals favors nowadays). Both protect the records of the quality assurance committee; one applies to “nursing facilities,” the other to “skilled nursing facilities.” But there is no suggestion that Congress intended to give them different levels of discovery protection; that it used identical language for both obviously suggests the opposite. To say that the home “did not sufficiently argue §1396r” may be correct in a hyper-technical sense but is entirely misleading. The trial court had before it the same issue that the Court of Appeals did, applying the same statutory language in essentially the same context. That the statutes have different numbers made no difference to the analysis.

That’s why the nursing home didn’t really waive the argument, that’s why considering it was appropriate, and that’s what the court should have said.

Thus endeth this year’s rants. We’re on vacation. Happy Holidays.

(link to opinion)