Heaphy v. Metcalf (CA2 6/18/20)

The court discusses how a medical condition is placed “at issue” to waive the doctor-patient privilege.

This is a wrongful-death case. Defendants sought discovery of Plaintiffs’ medical records, apparently arguing that their life expectancies are relevant to the value of their claim for loss of companionship. The trial court concluded that the claim waives the privilege; it allowed discovery. Plaintiffs brought this special action.

The Court of Appeals accepts it and grants relief. Placing “a particular medical condition at issue” waives the privilege. But “placing a condition ‘at issue’ means more than a possibility the condition could be relevant; upholding the privilege must instead deny the inquiring party access to proof needed fairly to resist the [privileged party]’s own evidence on that very issue.” “The bare assertion of a claim or defense does not necessarily place privileged communications at issue in the litigation, and the mere fact that privileged communications would be relevant to the issues before the court is of no consequence to the issue of waiver.” The court then analyzes a few selected Arizona cases.

Defendants had a 1986 case on point from the Southern District of New York. The Court of Appeals decides that the case is “wholly unpersuasive” because it can distinguish one of the cases the New York court cited. (The opinion is very short and doesn’t cite many cases — those were the days before District judges, even in the S.D.N.Y, had a bevy of career law clerks to do their writing — which one can’t help but feel actually had most to do with its being found “wholly unpersuasive.”)

The court doesn’t tell us whether Defendants had any special reason to question the life expectancy of the statutory beneficiaries. If they didn’t — or even if they did — then the case seems an odd context in which to pursue this argument since the decedent was 93 at his death.

(Opinion: Heaphy v. Metcalf)

Banner University v. Gordon (CA2 5/29/20)

We have elected not to blog this — at least not yet — for one or more reasons set forth in our FAQ. It is a follow-up to Kopp.  The nature of the majority’s analysis reminds one of that case for reasons that are clear enough given who the players are. You may want to read the dissent first in order to be reminded of the traditional view before wading into the majority’s baroque analysis. 

Humphrey v. State of Arizona (CA1 4/30/2020)

Sadly, yet another notice-of-claim case. This one has some interesting complications but that’s basically what it is.

Plaintiffs’ decedents were killed when they crossed over to the wrong side of I-10 and ran into a truck. A few months later one of the plaintiffs saw an article about cable barriers that prevent crossovers and the other plaintiff tried to follow that up with the ADOT and get from it some statistics about crossover accidents. Meanwhile, a lawyer friend told them they needed to file a notice of claim and they authorized him to do so. The notice failed to state a sum certain for settlement.

Cut to about two years later. A letter one plaintiff sent to ADOT requesting information hadn’t produced much of an answer. A new lawyer had taken over the case. He filed a supplemental notice which fixed the problem with the original. (Naturally, it said that the first notice was just fine and that the supplement was filed in an “abundance of caution” — which, like “reserve the right,” has become a shibboleth intended to cover all ills and asses. In fairness, this lawyer knew better and what else could he say? But these phrases are words of weakness, not of strength.)  When the State failed to respond Plaintiffs filed suit for wrongful death and for not replying to their records request.

The State moved for summary judgment because a sufficient notice had not been filed within 180 days of the accrual of the claim. Plaintiffs argued that it hadn’t accrued — that they didn’t know or have reason to know that they had a claim — until the second lawyer’s expert witness told them so, that this was a question of fact, and that in any event the period should be tolled because the State hadn’t given them the information they asked for. The State also moved for summary judgment on Plaintiffs’ allegation that it hadn’t properly responded to their records request. The trial court denied the first motion, ruling that accrual was a fact issue. The record is “not entirely clear” on whether it ruled on the second; in any event, the case was then transferred to another judge, who also heard that motion and granted it.

When the wrongful-death claims went to trial the State moved for JMOL on the notice/accrual issue; the court denied it. The jury returned a massive plaintiffs’ verdict. (In a rare example of an appropriate footnote, the court points out that the statute now requires a separate trial on notice-of-claim issues, before trial on the merits. We frankly haven’t checked the timing but the court indicates that the provision applied at the time of these rulings. Why the plaintiffs’ attorney decided not to ask for that is apparent. That the trial judge didn’t know how to handle the case unless the lawyers told him is nowadays par for the course, as is the fact that he’d evidently never read the statute that the parties had been arguing about. We don’t know, though, what subtle and sophisticated reason the State’s lawyers had for not raising the issue. There must have been a subtle and sophisticated reason, right?). The State appealed.

The Court of Appeals reverses. Under these facts both plaintiffs had ample reason to know of the claim long before the second notice. They were “aware of an injury and [had] a reason to connect it to a particular cause such that ‘a reasonable person would be on notice to investigate whether the injury might result from fault.’” Whether they had an expert or had done all their investigation or were ready to file a lawsuit doesn’t matter. The notice of claim isn’t measured by the standards of a cause of action; its purpose is to allow the government to do its own investigation and evaluation.

Plaintiffs also argued that the time period should be tolled because the State hadn’t given them the information about crossover accidents and costs they had asked for. Although the court doesn’t expressly analyze it this way, that’s really just a variation of the first argument: the period shouldn’t run until Plaintiffs had the details they needed to prepare the case. But the time period is triggered by knowing enough to investigate, not by the results of the investigation.

Plaintiffs also argued that even if they had notice early on, the statutory beneficiaries didn’t. This is the interesting wrinkle to the case, though not the one most thoroughly analyzed. As a legal matter the court says vaguely that only the statutory plaintiffs can litigate liability, though statutory beneficiaries can participate in the determination of damages. That’s true, though that line of cases also says that the beneficiaries are parties to the action. (It also says that wrongful-death plaintiffs have fiduciary duties to the beneficiaries; perhaps that would help in deciding how to resolve this sort of problem.) In any event, as a factual matter the court says that the beneficiaries knew about the accident but didn’t do anything to investigate it and that “‘a reasonable jury would not have a legally sufficient evidentiary basis’ to determine that any of the Plaintiffs complied with the notice-of-claim statute.” Though it is not necessarily ironclad legal reasoning, the court understandably has trouble with the notion that claimants can benefit by doing nothing. “We reject the proposition that parties may receive the benefit of tolling simply because they fail to take any action to discover information relevant to the cause of an injury. Accepting that premise would run counter to the plain language and the purposes of [the notice-of-claim statute] as well as years of established precedent applying the discovery rule.”

Plaintiffs cross-appealed the second trial judge’s grant of summary judgment on the records-request cause of action. The first judge, they argued, made it “implicitly clear” that he intended to deny it, that this was therefore the “law of the case,” and that presenting the issue to the second trial judge was an “impermissible horizontal/lateral appeal.”

“Law of the case” is actually an appellate doctrine; in the trial court (unless you’re retrying a case on remand) it doesn’t mean much. This opinion doesn’t mention the first point but does make the second pretty clear, quoting from State v. King (1994); it does not “prevent a different judge, sitting on the same case from reconsidering the first judge’s prior, nonfinal rulings.” (If you’re wondering what “nonfinal” means, stop. Like the word “prior” in that sentence, it is superfluous and was considered neither by the court that wrote it — King plucked the language from another jurisdiction to address briefly a minor issue in a big capital case — nor by the courts that have quoted it.)

Horizontal appeals are discouraged but discretionary. These parties couldn’t agree on whether the first judge had even ruled on the issue. They did agree that he didn’t do so “expressly” and for that reason considering it was within the second judge’s discretion.

Reviewing the facts the court concludes that the State’s response to the records request was appropriate.

That ruling is affirmed; reversed on the other issue for entry of judgment for the State.

Weep not for these plaintiffs, though; the huge jury award gave them the leverage to arrange a high/low settlement contingent on the outcome of the appeal. (The opinion mentions the agreement in a footnote, one of those totally irrelevant but juicy details that courts sometimes just can’t pass up. Or maybe this is part of that make-the-outcome-seem-just ethos that seems to be taking over the appellate courts.) Its nice to know that of all the legal professionals involved with this case, at least one of them did a good job. But we confess to feeling good also for his predecessor, the lawyer who filed the first notice, who is presumably now off the hook of a ginormous malpractice claim.

(Opinion: Humphrey v. State)