This malpractice case breaks no new ground but touches on a few useful practice pointers.

A lady was going to a rehab center for treatment of bone fracture. While there she complained of chest pains and the center’s doctor, an internist, was called to see her. He ordered nitroglycerin; she felt better but died several hours later of heart failure. Her beneficiaries sued. The doctor made several dispositive motions on disclosure and expert-witness issues.

He moved to disqualify the plaintiffs’ expert. The expert was an internist but also a cardiologist, which specialty he had practiced almost exclusively during the previous year. The trial court granted the motion and the Court of Appeals affirms. The opinion treats the issue respectfully but between the lines says  “under the statute (12-2604) this isn’t a tough call.” Plaintiffs made the “more expert” argument – that a cardiologist is an even better expert in a heart case than an internist. This is a misunderstanding – convenient, we’re pretty sure, rather than actual – of the meaning of the statute and of the basis of malpractice liability under current law.

Plaintiffs argued that a position contrary to theirs was “absurd.” The Court of Appeals, too, mentions it in quotation marks, which we hope everyone recognizes as admonishment and advice.

In response to their expert’s disqualification the plaintiffs asked for time to get a new one. The trial court denied it but the Court of Appeals decides that this was an abuse of discretion. Turns out that the defendant had sandbagged, waiting until after the disclosure deadline to raise an issue about the expert. The trial court had presumably put in the balance the fact that after the issue was raised the plaintiffs did nothing about it for months, until they lost the disqualification motion. The opinion does not suggest that that makes any difference once the disclosure deadline passes. We will be interested to see whether the rule that diligence can stop when disclosure does is applied to defendants as well as plaintiffs.

The trial court awarded some attorney’s fees to the defendant because of the plaintiffs’ misleading disclosure about one of the witnesses, the medical examiner who performed the autopsy. The disclosure, which apparently wasn’t cleared with the witness beforehand, said essentially that he would support plaintiffs’ theory of the case, in the course of which it twisted his opinions around and put some of them backwards. The Court of Appeals affirms the sanction. That counsel knew the disclosure to be false and misleading couldn’t be established but he should have known and that was enough.

The court addresses, on the defendant’s cross-appeal (since it would be dispositive if valid),  a summary-judgment argument that the trial court did not agree with. He argued that even if the plaintiffs’ expert were qualified the opinion was speculative. The opinion was that the defendant should have told the decedent’s son that she should go to an emergency room, in which event son would have told mom and mom would have obeyed. In the past mom had variously refused and agreed to medical treatment. How a doctor could read the mind of a patient he never met and how, if that is a medical opinion at all, it is one for a cardiologist are beyond us. But the opinion affirms, saying that an expert can rely on “his or her own years of first–hand experience in a medical practice to formulate opinions as to the probable treatment a patient would receive and the likely outcome.” 

There were a couple of other issues but we skip those as either inconsequential or fact-specific. Remanded to give the plaintiffs another chance to get an expert.

(link to opinion)

This lawsuit against an airport is mildly interesting substantively but for this blog its principal interest is stylistic.

A hot air balloon and a paraglider were participating in a festival at the Cottonwood airport. A quarter-mile from airport, half an hour after taking off,  the paraglider hit the balloon. The folks in the balloon sued the paraglider pilot and the airport; the pilot cross-claimed against the airport (that’s the gist; the litigation was a bit more complex than that but the court’s explanation of it is confused or in any event confusing). The airport moved to dismiss the pilot’s claim, arguing that it had no duty to him. The trial court granted it.

The pilot appealed, arguing that he was an airport invitee. The Court of Appeals holds that the airport’s premises liability existed on the premises but not away from it. The airport didn’t and wasn’t able to control the airspace where the accident happened; neither craft was taking off or landing. The court also mentions that although premises owners must sometimes warn of dangers the danger here – of running into a balloon – was obvious; that seems, though,  the sort of lagniappe courts throw in to support the result rather than a considered attempt to rehabilitate obviousness as a motion defense. Judgment affirmed.

So much for substance; now for style.

The court begins the analysis with a lengthy paragraph explaining the elements of the cause of action  – duty, breach, causation, damages – and what “duty” is. You may recall that a few months ago we were curtly critical of a similar paragraph in Boisson. This opinion’s explanation isn’t as long but is basically similar; for all we know both are cut-and-paste from the same source (especially the first few lines; they’re perhaps too alike to be coincidence). So this wasn’t an oddity of Boisson, this is approved CA1 style. Rather than being snarky about it, then, we should simply put the question: why?

Does the court really think that the lawyers in these cases didn’t understand the basics of the law of negligence? Does it think that of the lawyers who will someday need to look up these cases about off-premises liability? Tax court opinions don’t start by explaining what “taxes” are; why must every negligence case tell us what “negligence” is?  In what circumstance does the court decide that discussion of an area of law must include description of its first principles, most of which have nothing to do with the case at issue? How, in the court’s view, does this aid the discussion?

Well, you know the answers to these questions – which is that the court has never even asked them. And that’s our real gripe: not that the author of an opinion disagrees with us about what ideas are appropriate to it but that the court, content to color by numbers, gives the matter no evident consideration.

(link to opinion)

A special action concerning personal jurisdiction over a trustee.

Wells Fargo Bank took judgment against Hoag. It then served subpoenas for financial records in aid of garnishment. Among the targets were  three charitable remainder trusts of which Hoag was settlor, recipient of regular payments, and trustee. In response Hoag resigned as trustee and appointed in his place a corporation in the Bahamas, which refused to comply with the subpoenas. The bank then brought the present suit against Hoag, the trusts, and the Bahamanian trustee alleging that “Hoag had fraudulently concealed his assets by transferring them to the [trusts]” (no doubt the bank’s Complaint was more coherent than this description makes it sound). The trustee moved to dismiss for lack of personal jurisdiction; the trial court denied the motion; on this special action the Court of Appeals reverses.

Under 14-10202 a trustee can become subject to jurisdiction by  “accepting the trusteeship of a trust having its principal place of administration” in Arizona. The bank argued that since Hoag administered the trusts here the new trustee was subject to jurisdiction here. But the court says that since the statute says “having,” which “refers to present action,” not “had,” it refers to where the trust is “currently being administered.” At the time of the lawsuit the trustee was administering the trusts in the Bahamas so the statute doesn’t apply.

Apparently, then, “having” refers not to the time of the trusteeship’s acceptance but to some future time when an action is brought.  We would have thought that “accepting” and “having” refer to the same time but it seems that’s just us. The court explains in a footnote that there is a difference between present and past participles; though unintended, we hope that’s an insult rather than a help to its readers.

14-10202 by its terms “does not preclude other methods of obtaining jurisdiction” and the trial court decided that it also had jurisdiction under Rule 4.2. So the opinion makes a constitutional analysis. As is seemingly the court’s standard practice nowadays, the discussion consists for the most part of lengthy explanations of elementary principles including citations of most of the jurisdiction cases you’ve ever heard of all the way back to Pennoyer v. Neff. The bottom line is that under these facts the trustee didn’t have minimum contacts. The bank seems to have argued that the trustee communicated with Hoag and sent him various things but the opinion decides that these were responses to Hoag’s acts, not acts purposefully availing the trustee of jurisdiction here.

The court remands with directions to dismiss as to the trustee. It agrees that the transfers look fishy but says the bank didn’t argue for jurisdictional purposes that the trustee intentionally abetted the hiding of assets.

(link to opinion)