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Rasor v. Northwest Hospital (CA2 5/17/16)

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This case involves the qualifications of an expert in a case of alleged nursing malpractice.

Plaintiff was in the ICU for extensive cardiac treatment. She survived that but developed a bedsore, so she sued. She named as her expert a nurse who didn’t work in an ICU but knew about pressure ulcers. She filed a motion to have the court declare that she could use that expert. The hospital moved for summary judgment, arguing that the expert wasn’t qualified. The trial court granted the hospital’s motion. Plaintiff appealed.

The Court of Appeals first tells us the elements of a malpractice action and that you normally need an expert. Now, presumably the court didn’t feel that these are arcane issues on which there was a dearth of authority. So why does it mention them? Because our courts of appeal have apparently decided that they must at least mention – or, better yet, discuss – every issue that the parties passed through before they got to the one they now appeal. And so we routinely see discussion of preliminary issues that are not before the court and add nothing to its holding.

The parties’ argument centered on whether an ICU nurse is a specialist; Plaintiff said “no”, the hospital  (and Plaintiff’s expert) said “yes.” The court says that it doesn’t matter. The statute (12-2604A) requires that the majority of an expert’s practice in the year before the suit be either in the applicable specialty or, if a specialty isn’t involved, in general practice. Plaintiff’s expert hadn’t practiced ICU nursing in the year before the suit but hadn’t been a general practitioner, either – she was a “wound care” specialist. (She worked in long-term acute-care facility, the type of place involved here, the other recent bedsore appeal.)

But the court is clearly not agnostic on the point and does seem to feel that an ICU nurse is an expert. It mentions, in one of several long footnotes, that the Supreme Court has included as specialties areas that are “eligible for certification” and it takes judicial notice that ICU nurses can be certified as such (though this isn’t required and the hospital’s weren’t). And it specifically rejects – in the body of the opinion, not a footnote – Plaintiff’s argument that the hospital’s general policy on repositioning patients can apply to ICU patients.

But the court reverses and remands to give Plaintiff a chance to find a new expert. The trial court had denied that; the Court of Appeals, citing Preston, which it says had “similar procedural facts,” concludes that this was an abuse of discretion. The hospital seems to have filed its motion reasonably soon after deposing the expert but didn’t take the depo until after the disclosure deadline. The court doesn’t appear to suggest, as had Preston, that deliberate sandbagging was or need be involved. So is the law now that the defendant must, regardless of circumstance, depose the expert and move to disqualify while the plaintiff still has time to find a new expert if necessary, on pain of giving the plaintiff more time to find a new expert if necessary? Maybe not; the trial court apparently granted Plaintiff’s motion to use the expert before giving the hospital summary judgment on the point; wrong-footing a party was, it appears, the basis of reversal.

The opinion also discusses, at great length, a couple of evidentiary issues that may come up on remand.

(Opinion: Rasor v. Northwest Hospital)

Gnatkiv v. Machkur (CA1 5/24/16)

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Applying the doctrine of comity and illustrating once again that an appellate court can affirm for any reason.

Plaintiff and Defendant were truckers working for a New Jersey company. While traveling together, Defendant driving, they were injured in an accident in Arizona. Both applied for and received workers comp in New Jersey. Plaintiff then sued Defendant in Arizona; Defendant’s whereabouts were unknown, he was served by publication, and his liability insurer intervened on his behalf. The insurer moved for summary judgment, which the trial court granted. Under the law of either state workers comp would be an exclusive remedy for an employee and the court concluded that New Jersey’s determination that Plaintiff was an employee (which in that state he had alleged and admitted) was res judicata. Plaintiff appeals.

The Court of Appeals affirms, though it changes the reasoning. Res judicata can’t apply because the parties weren’t the same; neither Defendant nor his liability carrier were parties to Plaintiff’s workers comp claim. The court instead applies the doctrine of comity, which is that “courts of one state . . . will give effect to the laws and judicial decisions of another state . . . , not as a matter of obligation, but out of deference and mutual respect.” The trial court may therefore, in its discretion, “accord the laws and decisions of another state ‘presumptive validity, subject to rebuttal’.”

Plaintiff argued that he was really an independent contractor – that New Jersey had made a “mistake” – but he had applied for workers comp, had done nothing to set aside the award, and hadn’t given the money back. “No compelling reason exists not to defer to . . . New Jersey.” Plaintiff also argued that this was a question of fact that prevented summary judgment but “[i]f materials submitted to a trial court raised genuine issues of material fact concerning subject matter jurisdiction, the trial court may nonetheless determine them” if they are not intertwined with the merits.

(Opinion: Gnatkiv v. Machkur)

S&S Paving v. Berkley Regional Insurance (CA1 5/12/16)

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Holding that the issuer of a public payment bond can’t be sued for bad faith.

S&S was a subcontractor on a street-maintenance job for the City of Prescott. The general had obtained a payment bond, as required by the Little Miller Act (34-222), from Berkley. When S&S didn’t get paid it made a claim against the bond. Berkley asked for information and said it would investigate; its letters contained boilerplate to the effect that it was not waiving any rights. Nineteen months later, having heard nothing more, S&S sent another demand letter. But by this time – guess what? –  the statute of limitations on its claim had expired (34-223 specifically says one year) and so Berkley denied it. S&S sued for breach of contract and bad faith; the trial court dismissed both; S&S appealed the bad-faith issue.

The Court of Appeals affirms, declining to add bad faith to the statutory scheme. 34-222 says that “all liabilities on this bond shall be” determined by statute. “When a corporate surety undertakes an obligation on a bond pursuant to a specific statutory requirement, its liabilities are measured by the terms of that statute.” The statute provides an adequate remedy which S&S, by letting the statute run, failed to take advantage of. S&S had a somewhat analogous case but it involved a private performance bond, not this statute.

(Opinion: S&S v. Berkley)