Beatty v. Oro Valley Hospital (CA2 10/5/11)

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This is a memorandum but raises a notable procedural point.

In this malpractice action, trials on liability and damages were bifurcated. After the hospital lost the liability trial it filed this appeal. Beatty moved to dismiss it for lack of jurisdiction. The hospital responded that there was an “interlocutory judgment that determines the rights of the parties and directs an accounting or other proceeding to determine the amount of the recovery,” which is appealable under 12-2101(A)(6). The Court of Appeals denied the motion.

But in this opinion it reverses itself and dismisses for lack of jurisdiction. Though not technically covered by Rule 54b, 2101(A)(6) is a 54b-type situation: the trial court must expressly find a final determination of the rights of the parties and, in the trial court’s discretion, that it is subject to appeal. (The Arizona Supreme Court case on which this is based says that 54b language will do the job.) Here the trial court had found that “judgment remain[ed] subject to revision at any time before the entry of judgment adjudicating all of the claims and rights and liabilities of all of the parties,” and that  “This is not a final judgment except as to jury fees.” And it said nothing about appeal.

Beatty had raised the jurisdiction argument again in his brief. Technically that shouldn’t be necessary, since you can’t waive jurisdiction, but the panel might not have paid any attention to it otherwise.

The hospital argued (whether in its brief or in the motion papers isn’t clear) that if there were no jurisdiction of an appeal then the court should treat the matter as a special action. But there was no basis for doing so other than the time and expense of re-filing the appeal (either after a liability trial or after convincing the trial judge to re-word his orders). The court says that ““efficient use of resources” alone generally is insufficient to justify special action jurisdiction.”

 

(link to opinion)

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Tumacacori Mission Land Development v. Union Pacific (CA1 8/31/11)

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We try to keep things interesting but on the other hand we need to post something once in a while. We’re looking at three new opinions – a mechanic’s lien dispute, a claim by a guy who wants to control how much his aunt gets from her trust so that there’ll be more for him when she dies, and a case about an easement over a railway. The first has no interest, the second proves only that expectancies do bad things to the mind, and we’ve always kinda liked railroads.

Tumacacori claimed a prescriptive easement when the UP blocked a crossing Tumacacori had used for years. It had an Arizona Supreme Court case (Curtis 1932) that said you could do that but Curtis apparently didn’t notice that the Arizona Constitution says that “railways . . . are hereby declared public highways.” (Actually, we’d be willing to bet, if there were any way to prove it, that Alfred Lockwood knew that perfectly well. The career of his daughter the politician has blocked public memory of a man who probably forgot more law than she ever acquired.) You can’t get an easement over a public highway. So the Court of Appeals explains that Tumacacori can’t have the easement because the Constitution says what it says and means what it means.

Except when it doesn’t. Tumacacori apparently advanced several reasons why treating railroads legally as highways would lead to absurd results. The Court of Appeals doesn’t exactly tell us what those reasons were, preferring that we take it on faith that Tumacacori’s lawyers were being absurd to use the word “absurd.” But to cover itself the court then tells us that “the legal conclusion that railways are not subject to prescriptive easements does not necessarily mean they are highways under any and all conceivable scenarios.” What? Well, then, when are they not highways? Is that not what the Constitution means after all?

OF course, we see this all the time. Some seem to feel that they solve logical problems, rather than create them, by saying that X definitely means Y for today’s purposes though it might not for others down the line. If you’re going to do that then you have to be able, at the same time, to posit the circumstances by which today’s logic would cause X to mean other things. Otherwise you’re simply explaining that logic is not what you’re serving today and the bloggers can eat cake.

(link to opinion)

Ryan v. San Francisco Peaks Trucking (CA1 8/25/11)

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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)