This opinion did not go unnoticed; we are just late.

In a medical malpractice case, Arizona law requires expert opinion on standard of care and causation. Francisco was prescribed Cipro after a urologic procedure. His doctor did not discuss the potential adverse consequences before prescribing it. After taking Cipro, Francisco experienced serious adverse complications, including ruptured tendons. He filed suit against his prescribing physician alleging his medical history contraindicated the use of Cipro, and he was not warned of the potential severe adverse effects. Francisco’s attorneys could not find an expert to support this because, they contended, the American Urological Association authorized the use of Cipro for patients with Francisco’s medical history, and no board certified urologist will question this. Because the FDA required a “black box” warning, however, Francisco asserted the statutes requiring expert testimony did not foreclose his failure to warn claim. And if the statutes applied under these circumstances, this violated the anti-abrogation clause of Arizona’s constitution. (You may recall Watts v. Medicis Pharm. Corp., 239 Ariz. 19 (2016), and the learned intermediary doctrine where a manufacturer is not liable after providing warnings to the prescriber. If the prescriber disregards the warnings, this breaks the chain of causation between the manufacturer and the patient.)

Whether expert testimony is required is a question of law and is reviewed de novo. The Arizona Supreme Court holds an FDA black box warning does not substitute for expert testimony on the standard of care including failure to warn or an informed consent claim.  The only exception to these statutory requirements is under the common-law doctrine of res ipsa loquitur. Res ipa loquitur applies when negligence is grossly apparent to a lay person such as instances where surgical cloths, clamps, etc. are left in a patient. Prescribing medications , however, is not a common knowledge situation but includes weighing risks and benefits even if the FDA required a black box warning.  “[A]n FDA warning is not competent evidence, on its own, to establish the standard of care in an Arizona medical malpractice case.” The Court also rejected plaintiff’s contention this is a violation of the anti-abrogation provision because the statute is a permissible regulation.

Justice Bolick dissents, in part, concluding a prima facie case can be established on the black box warning. His dissent is evocative but ill-specified. He diminishes the expert statutes to a procedural requirement curing frivolous lawsuits. He writes: “A layperson reading the black box warning could readily conclude that a failure to warn a patient in the circumstances presented would amount to a departure from standard medical practice.” Thus, would a jury reading a black box warning create the standard of care? And if reading the black box warning is enough, why didn’t the patient read the prescription handout? He suggests this case involves a pharmacology question and not a urology question. “[A] pharmacologist might be equally or more competent than a urologist to articulate a standard of care in a failure to warn case.” Justice Bolick’s advice giving concludes by stating a generally accepted custom defense, i.e, everyone does it, “could bode constitutional ramifications.”   

link to opinion

We are irritated with the writing style here. The orientation paragraph does not tell us anything. Then the next paragraph uses “by and through” and an em-dash when the sentence should have been rewritten. The procedural history is convoluted, but interspersing rules and citations makes it more so. Are these rules and citations what the trial court cited or are they guideposts the court of appeals gives us for what should have happened? This opinion needs stronger editing including word choice, prepositional phrasing, and reworking citations that are dumped into the middle of a sentence. On style, here is a link to consider.  

Despite these irritations, the appellate court correctly concludes the “general rule,” that there is no appeal from a default judgment, is prudential and not jurisdictional.  It is prudential because a trial court may not have had the opportunity to consider the reasons urged for setting aside a default. The points made to set aside the default are often the basis for the appeal. Here, the defendant provided some argument in a motion to dismiss, and the trial court considered this before refusing to set aside the default. The pleading captioned a “motion to dismiss” was not an answer, and the defendant failed to timely answer the complaint despite repeated notice and opportunity. While there was a right to appeal, the default judgment is affirmed.

Link to the opinion

The Court sort of answers certified questions from a federal district court in Utah. The accident occurred in Pima County at a mine operated by Staker. Staker had a haul agreement with BDR. BDR hauled rock materials between processing areas.  Staker required BDR to name it as an additional insured on BDR’s liability policy with Scottsdale Insurance. BDR’s employee was injured when he attempted to dislodge a lock between the trailer’s dual set of tires. The tires exploded, and he was injured. The employee then sued Staker on a theory that the trailer was improperly loaded, the road was not maintained, and Staker did not implement safety training and techniques. Scottsdale Insurance denied coverage asserting that Staker did not qualify as an insured because Staker was not using the vehicle at the time of the accident. Staker then successfully defended the case and demanded Scottsdale reimburse the $1 million dollars it spent on defending the case. First, the Court holds the vehicle was in use and “use” continues from the truck being loaded until it is unloaded. The second question is whose use? This “use” is not independent from BDR’s employee’s use of the vehicle. The claim was that Staker failed to maintain the roads and such claim did not arise from the “use” of the covered vehicle. Third, “managerial functions of an additionally named insured on a commercial automobile policy” do not constitute “use” of a covered vehicle. The court also agreed there is no compelling reason to shift the burden of employee and contractor training onto a subcontractor’s automobile insurer. Fourth, the court discusses causation and the relationship to automobile insurance policies. “For there to be causation, the use of the covered vehicle need only be connected to the negligent ownership, maintenance, or use of the covered vehicle.”

The court sends the case back to Utah for the federal district court to decide how this plays out.  This last part is confusing and does not answer the fourth certified question. But as we read this opinion, Scottsdale did not owe a duty to defend Staker under BDR’s policy. This case was argued two years ago.  Why did it take two years? We watched the oral argument and were confused then by several of the questions and the jumps between tort law and insurance. This opinion clarifies some of this, but in the end, the court ducks the dispute on duty to defend. The court gives up with providing an answer and leaves the parties to argue some more