We blogged the Court of Appeals’ opinion here; go there for the facts.

The Supreme Court vacates that opinion and affirms the trial court’s disposition, though for a different reason. The court agrees with the parties and the lower courts that contract law should govern (though it notes that going forward the statute will override such contracts). Unlike CA1, the court then actually cites and applies principles of contract law. It reviews the facts and recognizes that the contract called for a particular result and did not authorize courts to balance interests. The trial court, though it employed some balancing, had ordered that result.

“We are cognizant of the unavoidable emotional fall-out attendant to the disposition of the embryos here. But the family court was required to enforce the . . . Agreement.” One wonders at what point the court feels it appropriate to apologize for hurting someone’s feelings by enforcing the correct legal result.

(Opinion: In Re: Terrell v. Torres)

We blogged the Court of Appeals’ opinion here; go there for the facts. The Supreme Court affirms as to the City of Phoenix (its liability was not contested before the court) but reverses as to Encanto Adventures.

The court decides that recreational-use immunity applies to a “manager” under the statute (33-1551) only if the manager is “a person or entity with the power to exclude or otherwise control access to property.” This is because the purpose of the statute is to “to encourage landowners and others to open lands to recreational users and to continue to keep the lands open” and because the other persons given immunity by the statute have such authority. The opinion also briefly reviews statutory history — the category of “manager” was added later. For reasons unclear the court believes that this not only supports its holding but “refutes” the contrary view. Finally, the court says that if one who manages property without controlling access gets immunity then so would landscapers and tree-trimmers (yes, that’s what it says; read the end of ¶16).

Although Encanto Adventures was in charge of the property it did not control access to it and was therefore not a “manager” entitled to immunity under 33-1551.

This lacks considerably of being the most convincing opinion the court has issued. The legislature can of course change the statute if it chooses, though that will not end the matter: the organized war against the statute has constitutional arguments left that this opinion expressly declines to address.

(Opinion: Normandin v. Encanto Adventures)

In the context of a preemption issue the court decides that the FDA is not a learned intermediary.

Plaintiff was injured by an implanted infusion pump. He sued the manufacturer for various torts. The trial court dismissed them all as being preempted by the Medical Device Amendments to the FDCA. The Court of Appeals upheld the dismissal of all but one; it reversed on failure to warn. The Supreme Court granted review of that issue.

The court quotes the seemingly-broad preemption language of the MDA then notes that federal courts have wormed a “narrow gap” through it. If traditional tort law bars the same conduct that the MDA does then the state may enforce it. (That’s more our way of putting it than the court’s, which perforce employs the plodding and unfortunate constructions of federal preemption jurisprudence.) The state can’t bar different conduct — that’s expressly preempted. And it can’t make new law to bar the same conduct — that’s impliedly preempted by the MDA provision that only the federal government can enforce it.

Failure to warn in the sense of failing to inform the patient or doctor is expressly preempted. So Plaintiff’s claim was that the defendant failed to inform the FDA of certain adverse event reports. The MDA requires this. A Ninth Circuit case — Stengel (2013) — said that the FDA was a learned intermediary under traditional Arizona tort law. The Court of Appeals followed Stengel.

The Supreme Court disagrees. No Arizona authority had held government agencies learned intermediaries. Under the Restatement 3d (Torts §6) intermediaries are “prescribing and other health care providers,” which the FDA isn’t. And Restatement 2d §388 required a “reasonable assurance” that the warning would reach patients or providers; the FDA isn’t required even to make adverse events reports public and when it does so merely uploads them to a database (helpfully named, should you ever want to use it, MAUDE). Because the FDA is not a learned intermediary the claim against it seeks to enforce the MDA and is therefore impliedly preempted.

This of course has implications beyond preemption. The court also says a few other things that may turn up in other contexts. “Warning claims are negligence claims,” citing Watts and Dobbs; Watts “implicitly displaced further reliance on” Restatement 2d §388 in favor of Restatement 3d §6; adverse event reports are not warnings (which the court assumes them to be arguendo while strongly and repeatedly implying the opposite, noting their unreliability).

The trial court is affirmed; relevant portions of the Court of Appeals opinion are vacated.

(At the moment the title of the pdf linked below begins “OP Practice Template.” “Occasionally Proofread,” perhaps.)

(Opinion: Conklin v. Medtronic)