Spring v. Bradford (10/23/17)

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We blogged the Court of Appeals opinion here.

The Supreme Court agrees for the most part. “We hold that the rule . . . prohibits a party from providing prospective trial witnesses with transcripts of prior witnesses’ trial testimony.” Defendant violated the rule.

“We further hold . . . that a violation . . . is not presumptively prejudicial in a civil action,” at least the witnesses are experts. “[A] rebuttable presumption of prejudice should apply only in those limited cases in which a witness’s Rule 615 violation is substantial and . . . makes proving the existence of prejudice nearly impossible.” “In all other cases, the moving party must at least prove that a witness’s Rule 615 violation gave rise to an ‘objective likelihood of prejudice.'”

But the court adds that “even when no prejudice is shown, the trial court must take some corrective action by tailoring an appropriate remedy under the circumstances.”

The court also agrees that “violations involving fact witnesses are more likely to be prejudicial than violations involving expert witnesses.” But it thinks that the courts below may have gone a bit too far. “To the extent [they] suggested that in a medical malpractice case, or in any case involving expert testimony, the Rule 615(c) exception necessarily applies and should be granted merely upon a party’s request, we disagree. Again, expert witnesses are not automatically exempt from the general rule of exclusion in Rule 615.” And “the request and showing under Rule 615(c) must be made before, not after, a party engages in conduct that would otherwise violate a court’s exclusion order, that is, before having a witness hear, or read, other witnesses’ trial testimony.”

(Opinion: Spring v. Bradford)

MacDonald v. Napier (CA2 10/18/17)

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We weren’t going to blog this one but were then persuaded that we couldn’t just let it go by.

Plaintiff was bitten by a sheriff’s K-9 after leading deputies on an extended car chase. He sued for negligence and won. Defendant appealed.

They argued that the only proper cause of action was battery, the deputy having deliberately released the dog, and that negligence does not lie for the unlawful use of force.

Instead of answering that question the court “begin[s] with the proposition that, in bringing suit, it is the plaintiff’s prerogative to identify particular harms a defendant has caused and the plaintiff is free to connect those harms to particular theories of liability as he or she sees fit.” It cites a case saying that the labels on a Complaint “have no great significance” but that “theories of liability still have substance,” from which it seems to have drawn the conclusion that labels have some significance in defining substance. “Appellants cite no Arizona authority barring McDonald from styling this case as a negligence action rather than a battery action, and we are aware of none.” (There’s no authority against “styling” the case as a foreclosure, either; apparently this court would have let him repossess the dog.)  It then cites two police-dog cases in which negligence was pleaded and not argued about on appeal. That means they are “consistent with the proposition that a plaintiff may bring an action sounding in negligence against” law enforcement. They are of course equally consistent with the proposition that the moon is made of Velveeta. Or else the wording of old Complaints that people didn’t make an issue of is now legal precedent to be cited in our courts.

To give it some credit, the majority does seem to realise that there might be something just a teeny bit wrong with that analysis. So it brings in the big gun: the District Court in and for the District of Columbia. It cites a case in which that trial court allowed a person shot by the D.C. police to sue for negligence.

The Restatement excludes from negligence ““conduct which creates liability because of the actor’s intention to invade a legally protected interest.” But that doesn’t apply because, it seems, Plaintiff was suing not for the intention to release the dog but for negligently forming that intention. This simplifies the law by eliminating the pesky category of intentional torts, which actually result from negligent decisions to commit them.

The court insists that it isn’t creating a tort of “negligent use of excessive force.” The “only cause of action at issue” is “common-law negligence.” For the use of force. But not for the negligent use of excessive force. And not, we assume, for the negligent use of non-excessive force. But the problem isn’t the court’s slipshod use of a word or two but its apparent belief that some substantive difference exists between applying the rules of negligence to a use-of-force case and “creating a tort” — more slipshod wording — of “negligent use of [excessive] force.”

The dog bite statute (11-1025) expands on common-law liability for dogs but specifically says that nothing in it creates liability for bites by police dogs. The court says that Plaintiff alleged common-law negligence, not a statutory action, so the statute doesn’t apply. (The policy implications of the legislature’s obvious belief that negligence doesn’t go that far would be an interesting analysis, though one we’re glad this particular opinion didn’t try to make.)

Also at issue were the instructions. The trial court told the jury that Defendants had the burden to prove that using the dog was justified. Defendants wanted it to be Plaintiff’s burden. The statute (13-409) says that “No person in this state shall be subject to civil liability for engaging in conduct otherwise justified pursuant to the provisions of this chapter” and speaks directly to use-of-force cases. But the court decides that it needn’t decide, that justification doesn’t apply to negligence. Because it isn’t the use of force that’s at issue, you see, but instead the “negligent misperception of fact contributing to one’s decision to threaten or use force.” So much for 409.

(What, you’re wondering — and this time we know someone who is indeed wondering — about the law of arrest, about the privilege, about qualified immunity? We don’t know whether they make no appearance here because the parties didn’t talk about them or because the court didn’t perceive them as the route to the appropriate result.)

There’s more but you get the gist. Judge Espinoza, dissenting, briefly says he doesn’t agree with the negligence analysis. But mostly he criticizes the jury instructions which, from the sound of it, did get rather mixed up, perhaps in part because of the present belief that giving substantive instructions at more than one point during the trial is just a dandy idea. He also discusses why the trial court was wrong to let Plaintiff’s expert opine about the legal standard for the use of force and, specifically, about a U.S. Supreme Court case on the subject, which the majority spends several paragraphs justifying.

(Opinion: McDonald v. Napier)

Conklin v. Medtronic (CA1 10/19/17)

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Federal pre-emption in a medical-device case.

Plaintiff used Defendant’s infusion pump, an implanted medical device. It allegedly malfunctioned; he sued under the usual products liability theories. Defendant moved to dismiss arguing that the federal pre-marketing approval process — which the product had passed — pre-empts state law. The trial court granted the motion.

The Court of Appeals affirms in part. The Medical Device Amendments to the Food, Drug, and Cosmetic Act prohibit state regulation that is different from or in addition to federal law. The court holds that strict-liability and warranty claims are barred because they would involve arguing that the product is defective or unsafe when the FDA’s approval process found otherwise.

But the court reverses on failure to warn. Plaintiff alleged that Defendant hadn’t reported certain adverse events to the FDA as required by federal law. The Ninth Circuit examined this issue in Stengal (2013) (also involving one of Defendant’s infusion pumps) and held that Arizona failure-to-warn law parallels the disclosure requirements of the FDCA and is therefore not preempted. This assumes that the Arizona duty to warn can be satisfied by giving notice to a third party such as the FDA. The Court of Appeals agrees that it can, treating the FDA as a learned intermediary because it “could have notified [Plaintiff’s] doctor.” (Whether that would actually have happened, and how the process actually works, the court does not discuss.) Claims that Defendant should have warned Plaintiff or his doctor directly are, however, pre-empted.

For similar reasons the court holds that negligence claims are barred except for negligent failure to report things to the FDA.

Plaintiff argued that this, as a statutory violation, is negligence per se. The court says it could be, invites Plaintiff to ask the trial court to so rule, points out which paragraphs of which case to look at, and then says ‘we express no opinion . . . on the trial court’s ultimate resolution of that issue.” There are ways for a court to opine on issues not before it that are rather less ham-handed than that.

(Opinion: Conklin v. Medtronic)