Pounders v. Enserch (CA1 4/17/12)

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THIS OPINION HAS BEEN VACATED IN PART

Choice of law in an asbestos case.

Pounders was an APS employee working at the Four Corners plant in New Mexico. While there he inhaled asbestos. Diagnosed with mesothelioma some years later while living in Arizona, he sued those responsible for the parts of the plant that contained asbestos. He then died and his widow amended the Complaint to wrongful death.

The trial court applied New Mexico’s statute of repose, granting the defendants summary judgment. Pounders appealed. The Court of Appeals affirms.

The Restatement choice-of-law rule defaults to the law of the place where the injury occurred unless another state has a “more significant relationship” to the claim.

Much of the opinion is devoted to Mrs. Pounders first argument, that the injury occurred in Arizona – where the condition developed and was diagnosed – rather than where the fibers were inhaled. She cited cases to the effect that you can’t sue before you know you have a disease. But the Restatement says that the injury happens “where the force set in motion by the actor first takes effect on the person” and the first effects occur immediately upon inhalation. So the injury occurred in New Mexico. For some reason the opinion then discusses at length cases from other jurisdictions that have gone both ways before announcing that the better-reasoned cases come to the conclusion it had reached before discussing them.

But it seems that Pounders was wise to emphasize that argument. Though the court next takes six pages to slog through the interest analysis before deciding that Arizona did not have a more significant interest than New Mexico, that is more a matter of Division One style than of necessity. Turns out that Arizona was simply where Pounders happened to be when he was diagnosed and died.

In the last several pages the court analyses the New Mexico statute, in light of New Mexico precedent, to rule that it does indeed apply to this case. The court suggests that its having to analyze New Mexico law is “curious” but its actually routine in choice-of-law cases, especially those rather obviously filed in one jurisdiction to try to avoid the law of another.

(link to opinion)

A Note to Our Readers

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We’ve amended what had been a brief blog of the Supreme Court decision in Walsh v. Cardiac Specialists (posted April 13). Our practice is not to change blogs after we post them (except if we spot a typo) so that people won’t think we hide our mistakes. If we ever make one, it will remain on display. But we received an inquiry about an issue we hadn’t mentioned which, on reflection, is at least as important as anything else in the blog. So, while not changing what we originally posted we have added some paragraphs, marking the new section as such.

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Walsh v. Arizona Cardiac Specialists (4/13/12)

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We blogged the Court of Appeals’ opinion here; go there for the facts. The Supreme Court vacates that opinion but agrees that a zero award in a wrongful-death case is proper. Since wrongful death is not a common-law claim the common-law rule does not apply; the CA2 cases to the contrary are overruled.

Apparently the children acknowledged that in principle but argued that the jury had ignored uncontradicted  evidence of their loving relationship with the deceased. But a jury has great discretion in wrongful death cases and could have discredited the children’s testimony because, for example, of their self-interest. The court also says, though, that “the jury might have accepted the children’s testimony about their loss, but nonetheless decided, given all the circumstances, that awarding no damages was “fair and just.” It seems that the jury’s discretion in wrongful death is just about unlimited.

[LATER EDIT 4/15/12] We’ve been asked about an issue in the CA1 opinion that we didn’t mention here and have realized that we should have.

Specialists argued that Walsh waived the issue by not raising it when the jury returned the verdict. The Court of Appeals said that was “moot” and addressed the substance, which we said “puts the cart before the horse.” The Supreme Court, in a footnote, says that the lower court’s mootness comment was correct. So, who’s right?

Though “moot” is not quite the right word, it is logically true that if a zero verdict is not defective then it need not be treated as such (i.e., Walsh didn’t waive anything by not raising the issue at the time). But our comment intended to refer to a matter not of legal logic but of jurisprudence – the question, addressed later in our Court of Appeals blog, of CA1’s approach to the CA2 precedent. The Supreme Court’s approach is understandable but the same can’t be said of CA1. As we blogged, that court “reaches the issue because it wants to,” not because it should have.

This is especially true since our appellate courts have nowadays made a point of referring to Division Two opinions as merely being those of “another panel” of the Court of Appeals (e.g, here and here; if you think these random, meaningless occurrences then please remember not to buy bridges in Brooklyn or answer Nigerian emails). The fact that there even are two divisions, in other words, is a secondary thing we should ignore. But the Court of Appeals in Walsh blithely threw over two decisions from two panels – four different judges – twenty years apart. We’re shown that some panels are nevertheless more equal than others and that decisions from some aren’t really “real” – no matter how many nor how old they are –  until they’re confirmed by another. That isn’t a legal system – its legal chaos. It would even be better to admit officially – if its true – that CA2 is considered the minor leagues and counts only until someone in the Valley makes the call. That would at least give us some guidance in trying to tell our clients what the law is.

The Court of Appeals already knows how to handle this problem correctly: Follow the precedent but signal that you do so by obligation rather than agreement. And the Supreme Court is not blameless, since it has made the problem worse by not mentioning it in this opinion.

(link to opinion)