Brittner v. Lanzilotta (CA1 3/12/19)

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Another judicial immunity case, issued the same day as Gibson. Gibson involved appointees who provided services to a party, distinguishing cases involving appointees who provided services to the court. This case involves an appointee who served both.

The case arises out of a custody dispute. The family court appointed Defendant as a therapeutic interventionist. (Predictably, if you’ve read Gibson or our blog of it, the court refers to this as a TI. Since there is no traditional shorthand for this, and since we can’t claim complete familiarity with what such a thing is, we will, pace Gibson, use the court’s form.) The court used the TI’s recommendations in its decree. Plaintiff then sued the TI for intentional infliction, breach of fiduciary duty, and other things. Defendant moved to dismiss, citing judicial immunity. The trial court granted the motion.

The Court of Appeals affirms. Defendant was appointed both to advise the court and to provide services to the parties. The court says that the services were incidental to the advice and that it is “neither practical nor possible” to separate them. Defendant therefore “performed functions integral to the judicial process.” It distinguishes the case Plaintiff relied on, in which the appointed therapist was just a therapist and did not report to the court.

The court doesn’t say much about the facts and perhaps the record doesn’t, either, being the appeal of dismissal of a Complaint filed by a pro se. If “neither practical nor possible” is a comment on the facts then this case could be consistent with Gibson. But the comment seems to be one of principle: “We do not parcel out therapeutic service from evaluation and reporting to the court. . .” So can an appointed therapist who commits malpractice while providing therapy escape liability because she also advises the judge? Does it make a difference whether the judge accepts or rejects the advice (the court here emphasizes that the family court accepted Defendant’s recommendations)? These thoughts might have given the Gibson court pause. And the court goes on to say “nor do we limit immunity only for services related to the judicial process.” which doesn’t sound like Gibson.

(Opinion: Brittner v. Lanzilotta)

 

Gibson v. Theut (CA1 3/12/19)

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The issue is whether a minor’s court-appointed lawyer and guardian have judicial immunity.

Plaintiff murdered his father. His grandparents sued him in probate court for wrongful death. The court appointed for him a lawyer and also a guardian ad litem. (The opinion consistently refers to the guardian as a “GAL.” We will consistently refer to the guardian as a “guardian” and hope that none of you GALs will be offended. We don’t know whether that ghastly formulation is merely something the court or parties thought clever or whether it is a thing in the probate community now.) Allegedly, the pair did essentially nothing, resulting in summary judgment and a $51 million dollar award. Plaintiff then sued them for negligence and sued the county and the state for negligently hiring them. (Surely only a cynic would suggest that the whole thing was an interesting scheme and wonder who’s idea it was.)

Defendants all moved to dismiss. The guardian argued that he had absolute judicial immunity. The lawyer argued that he, too, had absolute immunity and that Plaintiff lacked standing because his client was the guardian. The county and state argued that the commissioner who appointed them had absolute immunity. (There were also a couple of fact-specific issues we will ignore.) The trial court granted the motions.

As to the guardian the Court of Appeals reverses. The guardian relied on Widoff v. Wiens, 202 Ariz. 383 (2002), which had held immune guardians appointed to investigate the minor’s parents in a custody dispute. (And which never referred to a guardian as a GAL.) But the court says that extensions of judicial immunity are “fact specific” and this guardian was acting on behalf of Plaintiff, not on behalf of the court. Widoff therefore does not apply. “Parties and their representatives, including those professionals appointed by the court, are not per se an extension of the court.” They are participants in the litigation, not arbiters. Finally, judicial immunity should not apply since it would allow a guardian to act contrary to the minor’s best interests.

The court also reverses as to the lawyer. The court follows cases from other states holding that a lawyer representing a guardian owes a duty to the minor. “No Arizona court has ever extended judicial immunity to parties or their representatives.” “To hold otherwise would functionally permit legal malpractice.”

As to the county and state the court agrees that the commissioner had immunity. But Plaintiff’s argument was that the governments themselves were negligent. The lawyer and guardian were contract attorneys; one or the other of the government defendants “pre-qualified” them and put them on the list from which the commissioner selected them even though they were allegedly probate/guardianship lawyers who were not competent to handle a civil case. The court says that a lawyer good at one thing might not be good at another, therefore Plaintiff’s allegation states a claim. (Yes, that’s what it says; read ¶ 36.)

On this record it isn’t clear how the list was prepared or even who did so. The court suggests that the parties revisit the issue via summary judgment after discovery.

There is a very brief separate opinion. It agrees with the majority as to the guardian and lawyer but disagrees as to the governments, arguing that the commissioner’s immune action was a superseding cause.

(Opinion: Gibson v. Theut)

Conklin v. Medtronic (12/18/18)

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In the context of a preemption issue the court decides that the FDA is not a learned intermediary.

Plaintiff was injured by an implanted infusion pump. He sued the manufacturer for various torts. The trial court dismissed them all as being preempted by the Medical Device Amendments to the FDCA. The Court of Appeals upheld the dismissal of all but one; it reversed on failure to warn. The Supreme Court granted review of that issue.

The court quotes the seemingly-broad preemption language of the MDA then notes that federal courts have wormed a “narrow gap” through it. If traditional tort law bars the same conduct that the MDA does then the state may enforce it. (That’s more our way of putting it than the court’s, which perforce employs the plodding and unfortunate constructions of federal preemption jurisprudence.) The state can’t bar different conduct — that’s expressly preempted. And it can’t make new law to bar the same conduct — that’s impliedly preempted by the MDA provision that only the federal government can enforce it.

Failure to warn in the sense of failing to inform the patient or doctor is expressly preempted. So Plaintiff’s claim was that the defendant failed to inform the FDA of certain adverse event reports. The MDA requires this. A Ninth Circuit case — Stengel (2013) — said that the FDA was a learned intermediary under traditional Arizona tort law. The Court of Appeals followed Stengel.

The Supreme Court disagrees. No Arizona authority had held government agencies learned intermediaries. Under the Restatement 3d (Torts §6) intermediaries are “prescribing and other health care providers,” which the FDA isn’t. And Restatement 2d §388 required a “reasonable assurance” that the warning would reach patients or providers; the FDA isn’t required even to make adverse events reports public and when it does so merely uploads them to a database (helpfully named, should you ever want to use it, MAUDE). Because the FDA is not a learned intermediary the claim against it seeks to enforce the MDA and is therefore impliedly preempted.

This of course has implications beyond preemption. The court also says a few other things that may turn up in other contexts. “Warning claims are negligence claims,” citing Watts and Dobbs; Watts “implicitly displaced further reliance on” Restatement 2d §388 in favor of Restatement 3d §6; adverse event reports are not warnings (which the court assumes them to be arguendo while strongly and repeatedly implying the opposite, noting their unreliability).

The trial court is affirmed; relevant portions of the Court of Appeals opinion are vacated.

(At the moment the title of the pdf linked below begins “OP Practice Template.” “Occasionally Proofread,” perhaps.)

(Opinion: Conklin v. Medtronic)