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Poulson v. Ofack (CA1 3/17/09)

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When is a good result a bad result?

This was a motor-vehicle accident case. Plaintiff’s medical bills were $17,000; the arbitrator awarded her $39,000; Defendant appealed. Four days before trial, Plaintiff disclosed additional medical bills of $5,000; over objection, the trial court let them in. The jury awarded $30,000 – on $22,000 in medical bills, not bad work by the defense.

Because the verdict was not twenty-five percent more favorable than the award, though, Plaintiff moved for statutory sanctions (including almost $24,000 in attorneys fees). The trial court denied them. The possibility of sanctions had come up during the argument about the newly-disclosed bills and the court indicated, then and in denying Plaintiff’s motion, that it would not be fair to sanction the Defendant when it had allowed Plaintiff to increase the amount of the claim.

The Court of Appeals reversed. Under the statute (12-133), sanctions are mandatory unless they would cause “substantial economic hardship.” There was none of that here since Defendant’s insurance carrier was paying.

The language of the statute is clear. The problem with the opinion is its implication (paragraph 13) that the legislature intended this result. We think it highly unlikely that legislators foresaw courts allowing plaintiffs to add new things to a claim yet holding defendants to the standard of the old claim. It would be more correct to say that the statutory language allows this and that the legislature, which could change the statute if it wished, has not done so.

Its easy to suggest in retrospect,  especially since we don’t know the facts of the case, that the arbitration award wasn’t really bad enough to warrant appeal, particularly with a claimant who was still treating, and that the defendant should have moved for new trial and appealed the evidentiary ruling in response to the claim for sanctions. But trial judges should know that a statute that says “shall” is going to be held to mean “shall” unless it gives a clear exception. The idea of balancing the unfairness is of course a favorite of trial courts but it shouldn’t take retrospect to know that they can’t do so using discretion they don’t have.  If the plaintiff’s attorney nearly tripled his fee by sandbagging the defense, CA1 isn’t the court to blame.

Seisinger v. Siebel (3/13/09)

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On the heels of Phoenix v. Johnson, a simple analysis of a rule-statute conflict, here is a definitive and complete one. This is a must-read.

Seisinger sued an anesthesiologist for malpractice.  A statute — 12-604(A) — requires that a med-mal expert have certain qualifications; hers didn’t meet them. She argued that he qualified as an expert under Rule 702 and that the statute, because it has the effect of narrowing the Rule, is unconstitutional. The trial court disagreed and dismissed her case; the Court of Appeals reversed.

The Supreme Court started by saying that the power to make procedural rules is not — despite what some of the Court’s earlier opinions had said — exclusive to the Court. “Rather, it is more accurate to say that the legislature and this Court both have rulemaking power, but that in the event of irreconcilable conflict between a procedural statute and a rule, the rule prevails.” Such conflicts are to be avoided by construing the statute so as to be consistent with the rule, if possible.

The Supreme Court agreed with the Court of Appeals, though, that the rule and the statute conflict. The statute expressly adds to the qualifications required by Rule 702.

If there is a conflict, the next step is to determine whether the statute is substantive or procedural. With substantive matters, the roles are reversed: although both the court and the legislature can make substantive law (the court’s is called “common law”) in case of conflict the legislature prevails. Here, again, the duty of the courts is to try to uphold the constitutionality of the statute.

The Court of Appeals had decided that the statute was not substantive, based on its legislative history. But the Supreme Court indicated that this is a question of law, not of fact, and therefore does not rely on the legislative record. The legal issue is whether the statute is one that “creates, defines, and regulates rights.”  That the statute affects evidence does not necessarily mean that it is procedural.

The requirement of expert medical testimony in a malpractice case, said the Court, is a substantive component of the common law governing the tort. The requirement had been developed long before Rule 702.  12-604 (A) modfies this substantive rule by adding to a plaintiff’s “burden of production” (whatever that is).  It “regulates rights” and is therefore substantive.

This was too much for Judge Eckerstrom (called up from the Second Division because the Chief Justice had recused herself). His concurring opinion insists that the leglisature has no power to interfere with anything the courts have the constitutional power to do. For him, it is enough the the statute and the rule conflict; that makes the statute unconstitutional. Deciding between “substantive” and “procedural” is in his view an unnecessary “secondary analysis.”

Justice Hurwitz’ comments on Eckerstrom’s opinion were tactful and restrained.

In the end, though, the defendant lost. The substance that he argued for was his undoing. The statute was enacted in 2005; the case was filed in 2004 and arose out of events in 2002. It is black-letter law in Arizona that only procedural statues have retroactive effect. Having held that the statute was substantive, the majority ruled that it did not apply to Seisinger’s claim. (Eckerstrom’s opinion therefore concurs in the result.)

This is a very important opinion. Regardless of what you  may think about Judge Eckerstrom’s grasp of civil or constitutional law, his approach is probably closer to what we would have seen from a majority of the Court a couple of Chief Justices ago. For the last twenty-five years or so, our Supreme Court has threatened to go the absolutist route favored by Judge Eckerstrom. Seisinger is closer to what we thought was the law before then.

Pipher v. Loo (CA1 3/10/09)

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An appeal based on evidentiary rulings is generally a loser. But not always.

Pipher sued his dentist for malpractice. The trial court excluded portions of his causation expert’s testimony and allowed in portions of the defendant’s expert’s that he objected to. He lost, then appealed the evidentiary rulings.

As to the defendant’s expert, the appellate court agreed with the trial court: the expert’s testimony could not be excluded on hearsay grounds merely because it was based in part on patient surveys.

As to the plaintiff’s expert, the defense had objected to portions of his testimony that referred to the standard of care; its argument was that another plaintiff’s expert had opined on the standard of care and only one standard-of-care expert is allowed. One portion seems, from the brief passage quoted in the opinion, to have mentioned the standard of care only in passing but the court concluded that its exclusion was not error.

The other portion was this:

Q: Do you have an opinion whether there would
have been permanent injury to Dr. Pipher’s
lingual nerve if the dentist administering the
anesthetic had followed the Arizona standard
of care as expressed?
. . . .
A: Yes, I do have an opinion.
8
Q: And what is your opinion?
. . . .
A: Yes. My opinion would be that – if the
standard of care had been followed, that the –
the precautions taken after it – it was numb,
that they had come in contact with – or he had
come in contact with the nerve, that there
would not have been severe damage to the
nerve, which did take place. And so the
standard of care was not met and this is what
resulted in the severe injury to – to this
nerve – to the lingual nerve on the right-hand
side.
. . . .
Q: So if you’re going slowly, does that allow you
to touch the lingual nerve, cause the electric
shock and get out without damage?
. . . .
A: Yes.

If that testimony wasn’t intended to slip a standard-of-care opinion through, we’ll eat the transcript. But the court decided that the testimony should have been admitted because the expert had mentioned the standard “only as a predicate” to his causation opinion.

Well, maybe. Why does “only as a predicate” make an inadmissible opinion admissible? It can only be because, in the context of the rest of the testimony, the jury would understand that the witness was assuming the other testimony as the basis of his own rather than reaffirming it. That sort of call, though, is for the trial judge and  is to be respected absent an abuse of discretion. The opinion is weak on explaining why a disagreement about the tenor of the evidence rose to the level of abuse of discretion. The only clue the court gives is to mention that the quoted passage was the only opinion the causation expert gave about causation. Some testimony, apparently, is more equal than other testimony; the rules will be relaxed for the really important stuff.

The defense argued that the quoted testimony was also  inadmissible because it was without foundation, was speculative, and lacked an adequate basis under Rules 702 and 703. The appellate court disagreed. The disagreement was probably correct but the broad discretion to be given the trial court in such matters was, once again, not mentioned.