We are late on this one. When we initially reviewed this, our frustrations caused us to set it aside for several weeks.  The Arizona Supreme Court holds an institutional negligence claim against a prison medical contractor does not have to meet A.R.S. § 12-2604(A) expert standard of care requirements for a medical malpractice case.  This statute references individuals including a “health professional,” “specialist” and “general practitioner.” Institutional negligence does not fit this expert requirement (only an expert within the same specialty is qualified to testify) although the medical contractor (Corizon) acted through individual employees. When there is a “class of providers” and “when it is unclear which provider breached the standard of care, an expert on institutional standards of care may address an alleged breach by establishing that a class of providers failed to exercise appropriate care.” There is enough expert testimony here on causation, and the court points to failures by both nurses and a physician. In addition to potential vicarious liability, on institutional negligence, there is a CMS standard for a prison infirmary, and standards for charting and record keeping. The opinion ends with stating a nurse may be qualified to give causation testimony under Ariz.R.Evid. 702. But, the trial court will have to look at this first.

Some of our frustrations: Why refer to the decedent by his first name and explain this with quotes inside a parenthetical? Easier to refer to decedent by his last name and refer to plaintiffs as plaintiffs. We will not be confused, and we advocate getting away from first names. Second, take a red pen and cross out all the unnecessary surplus words and prepositional phrases. Third, do we need two dictionary definitions for a general practitioner?  Fourth, is anyone proofreading? CMS is an acronym for the Center for Medicare and Medicaid Services not “Medicine and Medicaid Services.” Finally, this opinion is a maze with sentence interruptions, citations to other parts of itself, and surplus references to other cases; Thompson, for example.  Justice Beene uses phrases and headings to give direction but doing this does not make it any better. Take all of this out, and what is left may be a more coherent opinion.

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We normally do not discuss criminal cases, but this special action involves the anti-marital fact privilege and Arizona’s statute applies in both criminal and civil cases. Under A.R.S. § 13-4062, a husband cannot be examined without his wife’s consent and vice versa. There are exceptions. The privilege does not apply if a spouse is prosecuted for a serious criminal offense and the testifying spouse makes a voluntary statement or wants to testify.  Here, husband is charged with second-degree murder and aggravated assault after firing his rifle at a group of border crossers. Deputies interviewed the wife and later arrested the husband. The trial court held the exception ended upon the defendant’s arrest and could be re-asserted for conversations after the arrest.  Since the statute does not draw such a distinction, the court of appeals reverses.  But is it that easy? Maybe. The statutory exception is one long run-on sentence, and we are a little confused whether the phrase “makes a voluntary statement” means the privilege bubble is burst. The trial judge drew a distinction between voluntary statements before her husband’s arrest and conversations she had with her husband after his arrest citing the defendant’s rights under the Fifth and Sixth Amendment. The court of appeals brushes this aside: “The anti-marital fact privilege is statutory and does not implicate any constitutional right.” We thought the statute recognizes the harm coerced testimony does to a marriage as did the common law. Did the statutory privilege completely swallow the common law privilege? Can a spouse be coerced to testify against the other for whatever was said between the two after an arrest because of a brief statement to inquiring officers before his arrest? This needs a closer look and a more thoughtful analysis.

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Plaintiff was walking around in public naked from the waist down. This led to a confrontation with the police. Plaintiff initially talked to the officers and then took off.  The officers took him to the ground (hot asphalt), and he was injured.  First trial, the officers won although the trial court granted a motion for a new trial after deciding the defense’s introduction of a drug test was unduly prejudicial.  At the second trial, the trial court bifurcated liability and damages. The officers conceded their use of force constituted assault or battery, but the use of force was justified under A.R.S. § 13-409. (Is it a battery if force is privileged?) Second trial, the officers win again.  Plaintiff argues the jury instructions should have separately instructed on each assault or battery and required justification for each. The jury instruction mirrored the justification statute, and the court of appeals held there was no error. Further, the instruction calling this an arrest rather than a welfare detention was not unduly prejudicial. 

Plaintiff also argued defense counsel’s closing argument was unduly prejudicial because she referred to plaintiff’s failure to present evidence on plaintiff’s mental health. This was a mistake because the relevant evidence was what the officers knew when they confronted the plaintiff.  We suspect counsel was looking for some way around the officers not following mental health protocols. This argument, however, was not prejudicial enough. Include in the “not prejudicial enough” category several evidentiary rulings during trial including impeachment evidence, deposition testimony, and an expert vouching for a witness.

The court concludes with a discussion of whether the trial court should have imposed sanctions for bringing up the drug screen test in the first trial. Trial counsel was told not to bring it up without permission and did it anyway. This misconduct was the basis of the new trial, and this violation of an unambiguous order warrants sanctions. A.R.S. § 12-349 requires only unreasonable delay and expansion of the proceedings. The concurrence suggests just because the trial court used the incorrect standard by requiring bad intent, the court should remand and have the trial court evaluate under the correct legal standard.  Although there will be no third trial, the court sends a message. Seems a little strong when one considers the back and forth during the first trial, the curative instruction, and the trial court’s decision granting a new trial came only after the result. The court of appeals had previously affirmed the trial court’s decision granting a new trial. If sanctions were warranted, why was this not determined in round one?

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