This 26-page opinion is a bit like an elephant giving birth to a mouse. Anything different would have been a major shock to the law. We don’t know which part the court thinks is publishable but we’re afraid it’s the several pages dedicated to showing that affidavits are testimonial.

Ryan was killed in an accident with an SFP truck. His widow sued SFP and later also sued the doctors who had treated his injuries; the two cases were consolidated. When she settled with the doctors SFP named them as non-parties at fault and announced its intention to offer Ryan’s malpractice witnesses and her pleadings, disclosure statements, and discovery documents. The trial court ruled that SFP couldn’t force her witnesses to testify but could use their 12-2603 affidavits and Ryan’s discovery/disclosure. At trial the jury returned a defense verdict.

On appeal Ryan argued that her disclosure statements weren’t admissions against interest. The Court of Appeals held that they were. They are evidentiary admissions, i.e., they’re admissible but not conclusive. In a footnote the court says that even if they weren’t admissions they could be used for impeachment, although the real issue here is whether they could be used as prima facie evidence.

Ryan then argued that SFP shouldn’t have been able to blame the doctors because it didn’t have any live witnesses (the court having precluded SFP from calling Ryan’s). The court concludes that Ryan’s disclosure statements themselves were inadequate because, although they explained the alleged acts of negligence in detail, they didn’t contain opinions of medical experts. But SFP also had the expert’s affidavits, which the court eventually concludes qualify as “expert testimony.” 

The court also holds that it wasn’t error to allow SFP to cross-examine Ryan with the expert affidavits, asking her if her counsel had hired the experts and if she remembered the statements defense counsel read from their affidavits.

The problem with the case is that its publication suggests that the issues are close ones. Cases with both personal-injury and malpractice elements are not all that unusual. Cautious personal-injury counsel may now feel the need to depose the plaintiff’s malpractice experts immediately, since we don’t know how a court could preclude their depositions (which are, we trust the Court of Appeals would conclude, testimonial), or even to hire its own. The latter has been known to happen, at great cost. The court should have said that of course a plaintiff can’t meticulously prepare a malpractice case and then try to sweep it under the rug because the personal-injury defendant didn’t duplicate her efforts.

We don’t, in case you were wondering, know enough about the case to report why a defense verdict could result in an appeal about whether the exonerated tortfeasor could blame the doctors who treated the injuries.

(link to opinion)

This opinion attempts to correct that in McCloud.

Gray, a Gulf employee, drove a car that hit Engler. Gray normally works in Houston but was living in a hotel in Yuma while commuting daily to a Gulf project in Mexico. The accident happened when Gray was driving back to the hotel from dinner, after the work day was over. The trial court granted summary judgment for Gulf, concluding that Gray was not within the course and scope. Division Two then issued McCloud, holding that meals of an employee working out of town are in the course and scope, but the trial court refused to change its mind. Engler appealed.

Division One affirms. McCloud applied a workers’ compensation rule to a respondeat superior case. This opinion rejects it, citing Robarge (1982) for the principle that the two have a different focus (relatedness to a job versus employer’s right of control) and Carnes for the idea that they have different purposes and effects (compensation versus encouraging proper supervision by creating liability to third parties).

So, since Gulf had no control over Gray’s going to dinner he wasn’t in the course and scope.

Whoever wrote this opinion, signed by Judge Winthrop, is a true believer in the classic Division One way of doing things: 24 pages, only nine footnotes but many of them quite long, a boilerplate page about the standard of review, etc. But we’ll cut this one a break since, first, this is correct and McCloud is wrong and, second, since you probably do need to explain yourself at length when disagreeing with another panel. (Yes, we said panel; although McCloud was a Division Two case this opinion doesn’t mention that, instead using the now-politically-correct “a panel of the Arizona Court of Appeals.”)

(link to opinion)

Cave iudicem. This is the third time AzAppBlog has reviewed an opinion (the others here and here) telling this judge that he’d abused his contempt power.

In this guardianship dispute among family members the court appointed a doctor to do a competency evaluation. One of the several lawyers involved subpoenaed the doctor’s records of her prior reports. Instead of telling the lawyer that there were 700 of them she called the judge and complained that she was being harassed. Instead of notifying the lawyers and telling them to work it out the judge called them in, decreed that the subpoena was improper and invalid because “some things just jump out at you [even though] you can’t articulate reasons,” demanded that lawyers tell him under oath privileged information such as who had discussed what about the subpoena, and sanctioned them in various ways, ignoring in the process most applicable rules and principles of law except to give them lip service.

The court issues this opinion to explain that you can’t do that. If you’re not sure about why, read the opinion. Actually, since there’s no new law here, maybe it issues it simply to try to get this judge to stop doing it. Fat chance.

An interesting detail is that some of the lawyers had formally entered into a “common interest agreement.” If you do such things be aware that, though a popular lawyers’-magazine topic some years back,  they can have more utility in theory than in practice. But this opinion says nothing critical of them and opines in a footnote that they needn’t be disclosed.

And footnote three, which first says that the court doesn’t decide whether the subpoena was overbroad, then decides it: “[E]xperts who are paid to testify in court should not be outraged or caught by surprise when they receive inquiries into the patterns that their opinions may reveal. Such inquiries are essential to meaningful cross-examination and an understanding of the integrity of the methods the experts employ.”

(link to opinion)