This bedsore case is apparently being reported, though it has the feel of a memorandum. The opinion is a bit light on law and logic and a bit heavy on taking sides.

Plaintiff sued a hospital for bedsores she developed there. She had as experts an internist and a vascular surgeon; the hospital had a vascular surgeon, who argued that the bedsores were from a pre-existing condition. Plaintiff’s strategy turned out to be to call the internist during her case-in-chief, have him testify that substandard care caused the bedsores but defer vascular issues to that specialty, and call the surgeon in rebuttal. But when the time came Defendant objected to that. The trial court agreed and prohibited the surgeon’s testimony. The jury returned a defense verdict. Plaintiff appealed.

The Court of Appeals reverses. It first explains that calling the surgeon didn’t violate the one-expert rule since the first expert hadn’t addressed vascular issues. Plaintiff’s surgeon would have addressed the pre-existing-condition issue raised by Defendant’s expert and if any testimony were duplicative Defendant could have objected to it.

Defendant argued that Plaintiff’s proffer concerning the surgeon’s proposed testimony was defective or incomplete. The court says in passing that “the court had the necessary information before it” but mostly blames Defendant for any defects in the proffer – defects it doesn’t describe and apparently holds didn’t exist – because Defendant waited until it rested its own case to object to Plaintiff’s surgeon. The court does not explain how that interfered with Plaintiff’s ability to make a proffer.

The court then says that Defendant hadn’t objected to Plaintiff’s vascular surgeon in the pretrial statement and that failure to do so may be deemed to waive the objection. The court does not actually say that Defendant waived the objection. If it didn’t, the court doesn’t explain why not. If it did, the court doesn’t explain why it devotes the core of the opinion to an argument that had been waived in the trial court.

The remainder of the opinion – about a third of it – discusses issues that could arise on retrial.

(Opinion: Nevens v. AZHH LLC)

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)

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)