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Baker v. University Physicians (CA2 2/22/12)

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THIS OPINION HAS BEEN VACATED

Even we have sympathy for trial judges once in a while. This opinion decides that he made the right decision, then reverses him.

Baker’s daughter died in defendants’ care; he sued for malpractice. But his expert was a hematologist/oncologist and the defendant doctor was a pediatrician, sub-specializing in pediatric hematology/oncology. The trial court ruled that the expert did not qualify under 12-12604 and therefore granted summary judgment for defendants.

The statute requires that the expert “be a specialist who is board certified in [the defendant’s] specialty . . .” The Court of Appeals says that “specialty” is ambiguous and decides that it means a member of a specialty board. It then reads from the web sites of a couple of specialty boards to help decide the case.

To its credit, the court is apparently at least a bit uneasy about this and so throws in a footnote to the web site stuff saying that it can take judicial notice of facts not subject to reasonable dispute even if the trial court didn’t. So, it’s now official: the court can read a web site and decide the case based on that rather than the record or the briefs. And how does it know that what’s there is not subject to reasonable dispute or that it hasn’t missed some site or page with contradictory or qualifying information, especially when the court is doing it’s own factual research not checked by the adversarial, discovery/disclosure process that we used to be told was the cornerstone of our legal system? Just trust the courts, folks; after all, if they weren’t infallible then some joker might have started his own web page pointing out their mistakes.

The court notes that Awsienko used a dictionary rather than medical board web sites to define “specialist.” But that was dictum and, anyway, CA1 tells us that its definition is more refined than Awsienko’s. Web sites are apparently more reliable than dictionaries.

The parties argued that an expert has to be in the same subspecialty as the defendant. The court says that since the statute says “specialty,” that’s what it means, not subspecialty.’ (This means that Baker actually wins this round; see below.)

Baker made the usual sorts of arguments – there was some overlap between the physicians’ training, the expert had studied some pediatrics and would be willing to see pediatric patients, the 17-year-old patient wasn’t really pediatric, etc. But that’s not enough since the statute requires the same specialty.

Baker also argued that the statute abrogates the right to recover damages. We thought we’d been through that one before and it turns out we were right: Governale (2011). Baker’s new argument was that the statute prohibited him from bringing an action because there are only 1800 pediatric hematologists and none of the twenty he contacted would help him. This doesn’t fly because under the court’s analysis he doesn’t need a pediatric hematologist, just a pediatrician. Baker unsuccessfully also tried to make the old, Governale arguments.

Having concluded that the trial court’s grant of summary judgment was correct the court affirms it, right? Wrong; it vacates and “remands for further proceedings consistent with this opinion.”  The opinion does not claim to have changed the law; on the contrary, it insists that it just reads the words the Legislature has used. But because the statute, in the court’s view, allows the use of any pediatrician and Baker didn’t try that, he gets to try again.

Give Baker’s lawyer credit: it apparently didn’t occur to her that the actions of a pediatric hematologist/oncologist could be judged by a pediatrician whose career has been spent treating earaches and giving inoculations. Maybe that’s why the court cuts Baker a break not warranted by any principle of procedure – though she was wrong on the law and wrong on the facts, she tried to be truer to the statute than the court thinks she had to be. Her reward is to have the best of both worlds; she can use any pediatrician on standard of care and will call her hematologist to make up for the pediatrician’s ignorance.

Judge Eckerstrom concurs but adds that he would have the trial judge decide “whether defendant’s specialization in pediatrics was pertinent to the standard of care or practice in treating the patient‟s blood condition.” It would, you see, be “absurd” (a word he uses three times) to judge a pediatrician by the standards of a pediatrician if the patient didn’t really need a pediatrician. The trial court should, it appears, determine (as a matter of fact? as a matter of law? as a matter of judicial notice? maybe he can just read some web sites) what specialty was really the most appropriate (here, a pediatrician or hematologist) and require an expert from it. The majority refers to this “test” as “logical and attractive” even though it rejects (as noted above) the same factual argument because the statute says “same specialty,” quotes legislative history to the effect that the defendant and expert must have the same training, and notes evidence that hematologists and pediatricians have different training and approaches.

(link to opinion)

Bonito v. Flagstaff (CA1 2/21/12)

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Appellate courts love constitutional cases. But they aren’t always very good at them.

A Flagstaff ordinance requires owners of property adjoining sidewalks to maintain them and imposes a lien for the costs of repair. Bonito challenged its constitutionality.

On summary judgment, the trial court upheld it under the due process clause. The Court of Appeals affirms that. Making adjoining landowners keep up sidewalks is a valid exercise of the police power under a couple of cases from other states.

But Bonito also argued the takings clause. This opinion says, citing a U.S. Supreme Court case named Lingle (all quotes in this paragraph are from U.S. Supreme Court cases; don’t blame CA1 for them) that even if an ordinance is valid under the due process  it can still be an invalid taking. ““[P]roperty may be regulated to a certain extent, [but] if a regulation goes too far it will be recognized as a taking.” How far is “too far?” Aside from per se takings (permanently invading or completely depriving an owner of use), which this is not, “the Court has ‘generally eschewed’ any ‘set formula for determining how far is too far,’” preferring “ad hoc, factual inquiries.” Don’t you just love that kind of so-called “law?” There is only one type of case in which “we know it when we see it” is laughed at; courts otherwise think it quite sophisticated. So how do you figure it out? Factor analysis, the courts’ most trusted refuge from thought. You examine “[t]he economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations” (you’re no doubt marveling at what a clear and objective standard that is) and ““the character of the governmental action – for instance whether it amounts to a physical invasion or instead merely affects property interest through some public program adjusting the benefits and burdens of economic life to promote the common good” (ditto). But, as always, the stated factors are merely the ones the court wants to talk about to justify this decision since you must also look “into all of the relevant circumstances in a particular case.”

This is (quoting now from this opinion) an “essentially ad hoc, factual . . .  inquiry” which “an appellate court is ill-equipped to apply . . .  when [it has] not been addressed and developed by the parties in the trial court.” The parties didn’t do so because they relied on pre-Lingle cases. So the Court of Appeals remands. For what? “[F]or the court to determine whether the City’s lawful exercise of its police powers nonetheless constituted an unconstitutional taking.” How? Ask for more summary-judgment motions on a different issue? Hold an evidentiary hearing? Who knows. (But keep in mind that being an “essentially” factual issue means that it isn’t really a factual issue and that the appellate court can change the result on the same facts – using our old friends, the “factors” – if it wants to.)

And what about the burden of proof? If Lingle controls, and if it says you have to show certain things, and if somebody didn’t, why don’t they just lose the issue? Since when does relying on superseded precedent earn you a second chance?

The Court also concludes, using all the analysis necessary (in other words, not much) that the lien is not a tax or a special law.

A somewhat longer analysis is necessary to explain why Flagstaff has the power to enact such an ordinance. Under the statutes a city can require a landowner to build a pubic sidewalk and not to obstruct it, and  can abate nuisances. These statues are found in Title 9. So, Title 9 must also mean that  the city can require landowners to abate at public expense nuisances on those sidewalks. Even though no statute in Title 9 actually says that. Got it?

(link to opinion)

Murphy Farrell v. Sourant (CA1 2/16/12)

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This is not an easy one to wade through but turns out to have some interesting points.

Murphy runs the OX Ranch. (The court describes it as a “’cow-calf’ business.” Things have indeed changed in Arizona if cow-calf is obscure enough to warrant quotes. And we bet that some of the legal types in this case thought “OX” referred to a castrated cow.) (The fact that the OX is a cow-calf operation turns out to have nothing to do with anything, by the way.) As a sideline the ranch sold decorative boulders from land it leased from the State to run cattle. It employed Sourant as its boulder-finder until he had a better idea: he quit, bought from the Santa Fe – which owned the mineral rights – the right to take boulders from the State land, and leveraged that into being Murphy’s business partner. (We simplify and greatly shorten complicated facts that the opinion sets out at length; we don’t criticize that, even though its CA1 and Judge Timmer, since here they’re arguably helpful to the resolution – but not, happily, to the procedural take-away.) The parties had a falling-out; Murphy sued for constructive trusts on certain land and also on proceeds of the boulder business. After a bench trial the court found that Sourant had breached contracts but, concluding that Murphy wasn’t entitled to constructive trusts, gave him judgment. It refused give him fees, though, so both parties appealed.

Murphy argued that the trial judge’s findings and conclusions failed to address a couple of issues. Murphy hadn’t raised them in the Complaint but they were in the pretrial statement, “thereby effectively amending the complaint and presenting the matter for adjudication.” The trial court therefore had an obligation to make express findings and conclusions on them. Sourant argued that Murphy wasn’t entitled to injunctive relief anyway. The court responds, in effect, that even if that’s true Rule 52 requires the trial judge to say so; the rule “is designed to: prompt the judge to consider issues more carefully, enable a defeated party to determine whether the ruling should be appealed, clarify the decision for purposes of applying the doctrines of res judicata and estoppel, and, most significantly, permit the appellate courts to examine the trial court’s reasoning more closely.”

The remedy for that is remand for additional findings and conclusions, which is what the opinion orders.

As to what the trial court did address, Murphy argued that because Sourant breached his agreement it should have a constructive trust on some other acreage he got rocks from. The Court of Appeals holds that because Murphy didn’t lose that property or an opportunity to buy it, it had no equitable interest in it and therefore no right to a trust.

Murphy asked on appeal for a constructive trust on certain of Sourant’s profits because he admitted using information gained when he was its employee to get them. But it hadn’t raised that argument below, so it loses it now.

The court then addresses Sourant’s request for fees. “[E]ven in the face of a breach of contract or other improper conduct by a party seeking fees, the court must assess the overall outcome of the case to determine if that party ‘prevailed’ in the lawsuit.” This court decides that Sourant was the prevailing party since, even though he had breached his agreements, “Murphy  . . . did not succeed on any of its claims” – i.e., it wasn’t entitled to any relief. By refusing fees the trial court abused its discretion. (The trial judge did his cause no good by awarding Sourant costs.) However, with that instruction the trial court will decide on remand which party is ultimately successful.

So, what’s interesting about all this?

First, try to avoid issue-creep in your pretrial statement. That’s not always easy with notice pleading and wide-open discovery but you should at least know and keep an eye on what the Complaint actually says. Its surprising (or, sadly, perhaps not) how often it turns out not to say something it should.

Second, make sure that the findings and conclusions cover the issues. Nowadays trial courts seem to want to write them on their own, no matter how scrupulous you are about providing a proposed version; the result can be a mess. That’s what Rule 52(b) is for (amendment of findings and conclusions).

And remember that if you don’t win relief then you probably aren’t the successful party, no matter how bad the other guy was.

 

(link to opinion)