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State v. Salazar-Mercado (5/29/14)

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We follow the criminal cases, albeit loosely, because, as one of our former Chief Justices liked to point out, they make a lot of evidentiary law. This one involves the use of experts.

The defendant was an alleged child molester. The prosecution wanted to put on an expert to testify about a purported syndrome suffered by molestation victims that explains why (as here) their reports of abuse can be tardy and inconsistent. She knew nothing about these particular victims and would express no opinions about the case. The defense made a Daubert objection under our new version of Rule 702. The trial court admitted the testimony; the jury convicted; the Court of Appeals affirmed. The Supreme Court took review and now affirms, meaning that it wasn’t happy with CA2’s opinion.

The defense pointed out that the expert’s testimony was “cold” – i.e., simply explained a subject without reference to the facts of the case. (For some reason the opinion puts quotation marks around “cold” throughout, even after explaining its meaning; we like to think the author knows that usage does not strictly require or permit the subsequent marks and uses them to signal disdain for a cant term.) Rule 702(d) states that an expert can testify who “has reliably applied the principles and methods to the facts of the case.” The defense argued that since this witness hadn’t she couldn’t qualify. After discussing the history and development of Rule 702 the court concludes that it did nothing to prohibit cold testimony if that the witness otherwise qualifies as an expert. The court agrees with the State that 702(d) means that the expert must apply the principles reliably if he or she applies them at all.

The defense also argued, in essence, that the syndrome wasn’t scientifically recognized or accepted, citing cases from elsewhere that have questioned it. But the defense didn’t submit any data, studies or expert testimony to question the syndrome. (An amicus did on appeal but the court says that’s too late). And our courts have accepted such testimony in earlier cases (in fact prosecutors routinely call this expert to give this sort of testimony in this sort of case). There was also no request for a hearing under Rule 104 so that the defense could make a record on the issue. (The lesson is of course that you can’t do one of these challenges the cheap and easy way, just with legal argument.)

The court vacates most of CA2’s opinion, though, and de-publishes the remainder of it.

(link to opinion)

Mirchandani v. BMO/TradeCor (CA1 5/27/14)

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The court holds that Rule 13 means what it says. That is necessary in a world where trial judges make rulings like this.

Mirchandani borrowed money from BMO and defaulted. BMO sold and assigned ts rights to TradeCor, which sued him and got summary judgment. Mirchandani then filed suit against BMO and TradeCor, making every allegation that a bright service-station owner (or one with legal counsel behind the scenes) can think of as an alternative to paying his debt. TradeCor moved to dismiss because the allegations were compulsory counterclaims in the first suit. The trail court granted the motion and this opinion affirms. The point of the opinion, though, is that BMO also moved to dismiss, apparently arguing that as its assignee TradeCor stood in its shoes and therefore that it, too, should be treated as a party for Rule 13 purposes. The trial court bought that argument.

The Court of Appeals does not. BMO cited a Third Circuit case holding that a successor-in-interest by virtue of corporate restructuring was the “functional equivalent” of its predecessor, the named party. The court wastes no time on this. “We see no basis here to depart from the plain language of Rule 13 . .. . Even if we chose to follow [the Third Circuit case] in broadening the meaning of “opposing party,” the exceptions recognized therein . . . are very narrow and not applicable here.”

(link to opinion)

Beaver v. American Family Insurance (CA1 5/20/14)

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Allowing a new exclusion to UIM coverage.

Sally lived with her father. After getting hit while riding her motorcycle she sought UIM benefits under his auto policy. Although she was a relative living in his household, and would therefore normally be covered, the policy excluded relatives who owned a motor vehicle. So AmFam denied her claim; she sued; the trial court ruled for her; AmFam appealed. This opinion reverses, holds the exclusion valid, but remands on reasonable expectations.

Sally argued that the AmFam exclusion was really a disguised “other vehicle’ exclusion. That exclusion (excluding UIM coverage if the policy does not cover the vehicle for liability) is invalid because the statute (20-259.01) allows the policyholder to buy UIM coverage for all insureds. But the statute and public policy do “not restrict the parties’ right to agree on who is an insured.” Sally, because she owned a motorcycle, was by AmFam’s exclusion not an insured at all. That isn’t and end-run around the prohibition of “other vehicle” UIM exclusions because, you see, under the policy she did not merely have no UIM coverage, she had none at all.

Sally also argued reasonable expectations – i.e., her father’s reasonable expectations –  because the exclusion was allegedly buried inconspicuously. The trial court hadn’t had to reach that argument; this court does, says she’s entitled to try to prove it, and therefore remands.

(link to opinion)