Plaintiff injured his leg in a motorcycle accident and later developed necrotizing fasciitis. He filed suit against some but not all of his health care providers. The Arizona Supreme Court decides: 1) treating physicians can opine on standard of care and not violate the one-expert rule under Rule 26(b)(4)(F)(i); and 2) a defendant dismissed on summary judgment cannot be named as a non-party at fault. The trial court correctly determined both legal issues, but the court of appeals decision ordering a new trial is affirmed because the “undisclosed expert opinions” were not adequately disclosed before trial. The case will be retried because of a lack of disclosure, and the trial court abused its discretion. The Court cites other opinions as examples including Solimeno and Englert. The Court’s footnotes explain what a nonparty at fault is, disclosure obligations on expert opinions, and the last one tells us the Court is not interpreting subpart (ii) of the “rule” allowing a defendant in a medical malpractice case to testify as to standard of care. Each of these points should have easily been made in the opinion or eliminated.
As you may notice, the Court capitalizes its references to the subpart of Rule 26(b)(4)(F)(I) as the “One-Expert Rule.” This gives it an easy reference and identity. The Court concludes, however, by grounding the rule to discretion. A trial court may still exclude cumulative testimony whether from a treating physician or a retained expert. And, the rule is a presumption. “Thus, a plaintiff may be entitled to additional experts under appropriate circumstances to fairly meet a ‘deluge’ of defense expert witnesses.’”
We noticed this had not posted correctly so here it is.
The Arizona Supreme Court holds a design professional separately hired by a contractor owes no duty to the owner of the property. Easy enough. The trial court and the court of appeals both reached this same conclusion. The foreseeability analysis discussed in Donnelly is no longer good law.
This opinion has a distracting style. There are seven justices on our supreme court and each writes differently. When one justice comments on another’s draft opinion, judicial etiquette is not to comment on matters of style. Style receives little attention. Law clerks rarely possess mature legal writing ability, and judicial opinions are not law review articles.a few modest Here are a few suggestions. First, when referring to the earlier Donnelly opinion, using “our holding” or “we held” is awkward. Donnelly was decided 38 years ago. The “we” is better used when speaking for the court today or what the law still is. When referring to prior decisions and distancing from those cases, perhaps use “the court” or even “this court.” Second, a sentence is not a paragraph even when tacking a citation on the end. If an opinion needs to have headings – most short opinions never do– then use headings. Third, placing commentary in string citations is distracting and confusing. Fourth, scattered throughout this opinion are unnecessary prepositional phrases. Good advice from Judge Ruggero Aldisert in his legal opinion writing book: “Examine each sentence word for word, phrase by phrase and clause by clause to see what can be cut.” Finally, this opinion ends, as none should, with dicta suggesting other possibilities for relief. This leaves us wondering. We wonder what an “assignment of liability” means and whether the “third-party beneficiary doctrine” may be useful in some other case. We wonder what, if anything, was newly decided.
In a prior post, we discussed the Arizona Supreme Court’s opinion in this case involving superseding and intervening cause. The supreme court had rejected the court of appeals’ holding that an intoxicated customer’s arrival at home breaks the chain of causation as a matter of law and held this may be a jury question. At the end of its opinion, the supreme court remanded for the court of appeals’ consideration of an issue lurking in the background, i.e., whether Arizona’s dramshop statute (A.R.S. § 4-312(B)) preempts a common law negligence claim. In a jury trial, plaintiffs had prevailed on its common law negligence claim but had lost on the statutory dram shop claim. Now, on remand the court of appeals holds the statute preempts a common law negligence claim. Plaintiffs now ends up with nothing. This preemption defense was never raised with the trial court, but because the issue is of statewide importance, the court of appeals permitted supplemental briefing and considered the issue.
After reviewing earlier Arizona Supreme Court cases the court holds: “[I]f a plaintiff could not have asserted a claim for a particular type of harm against a particular defendant in 1912, then the anti-abrogation clause provides that claim no protection.” Because the legislature enacted the dram shop statute in response to a newly minted common law cause of action, the subsequent legislation preempted it. The court further rejected the argument that a common law cause of action may evolve holding “although the judiciary remains free to change the common law, the legislature retains the constitutional power to recraft the parameters or scope of a court-pronounced common law cause of action.” This decision may change other areas because the legislature has adopted statutory changes to a common law creation only to be rebuffed under the anti-abrogation clause. E.g., Little v. All Phoenix S. Com. Men. Hlth, 186 Ariz. 97 (App. 1996). The cases relied upon in Little are the same cases rejected in this opinion. One should suspect there will be another petition for review filed.
Expect courts will continue to hobble through the preemption issue. Why was the lesson on superseding and intervening cause of such importance to our supreme court on a preempted cause of action? Thus progress?