Sanders v. Alger (6/1/2017)

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We blogged the Court of Appeals opinion here; go there for the facts and issues. The Supreme Court comes to a similar result but vacates Division Two’s  substantive discussion.

The lower court’s opinion centered on the firefighters’ rule; this one centers on the issue of duty. The court primarily wants to change the duty analysis. It feels that Division Two held that there was a duty “because all people have a duty to use reasonable care to avoid causing injury to others.” (The lower court also mentioned other reasons, though that does seem to be its thrust.) “[W]e decline to adopt that . . . rationale, as we need not here decide whether people generally owe a duty of reasonable care to others.”  The court evidently realizes – it would be interesting to know if CA2 did – the significance of saying that “all people have a duty.” Many controversies in the law never go away; they simmer under the surface, ready to be brought up again by accident or design. Whether all people have a duty was the central issue in Palsgraf. The dissent said “yes.” Our courts discarded the majority’s reasons for saying “no” some time ago but the reasons they substituted are, mysteriously, less compelling than those of Justice Cardozo. And so we continue to fight the battles of 1928.

In Arizona duty can arise out of relationships. The court says that patient-caregiver is such a relationship. The court essentially feels that since the caregiver owes the patient a duty there should be a reciprocal duty. It analogizes to the rescue doctrine.

The court also holds that the firefighters rule doesn’t apply, though its reasoning is unfortunately vague. The rule doesn’t apply to caregivers on duty because it doesn’t apply to firefighters off duty. Limiting the rule “comports with” its being constitutional – i.e., not an abrogation of a cause of action – which raises more questions than it answers. And the court refers to the rescue doctrine again, except this time to say that it “arguably” doesn’t apply here.

The court seems concerned about effect of its ruling. Earlier in the opinion it spent a long paragraph explaining there could be defenses to these cases, specifically mentioning standard of care, comparative fault, assumption of risk (even though it says elsewhere that caregivers don’t assume the risk), and superseding cause. And at the end it addresses an issue that it did not grant review on: whether Defendant can get summary judgment. “[W]e note it to underscore that our ruling does not establish liability on Alger’s part.” The duty “is that of a reasonable person under the circumstances, and those circumstances include  . . . physical disabilities and limitations.”

(Opinion: Sanders v. Alger)

Nevens v. AZHH LLC (CA1 5/30/17)

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This bedsore case is apparently being reported, though it has the feel of a memorandum. The opinion is a bit light on law and logic and a bit heavy on taking sides.

Plaintiff sued a hospital for bedsores she developed there. She had as experts an internist and a vascular surgeon; the hospital had a vascular surgeon, who argued that the bedsores were from a pre-existing condition. Plaintiff’s strategy turned out to be to call the internist during her case-in-chief, have him testify that substandard care caused the bedsores but defer vascular issues to that specialty, and call the surgeon in rebuttal. But when the time came Defendant objected to that. The trial court agreed and prohibited the surgeon’s testimony. The jury returned a defense verdict. Plaintiff appealed.

The Court of Appeals reverses. It first explains that calling the surgeon didn’t violate the one-expert rule since the first expert hadn’t addressed vascular issues. Plaintiff’s surgeon would have addressed the pre-existing-condition issue raised by Defendant’s expert and if any testimony were duplicative Defendant could have objected to it.

Defendant argued that Plaintiff’s proffer concerning the surgeon’s proposed testimony was defective or incomplete. The court says in passing that “the court had the necessary information before it” but mostly blames Defendant for any defects in the proffer – defects it doesn’t describe and apparently holds didn’t exist – because Defendant waited until it rested its own case to object to Plaintiff’s surgeon. The court does not explain how that interfered with Plaintiff’s ability to make a proffer.

The court then says that Defendant hadn’t objected to Plaintiff’s vascular surgeon in the pretrial statement and that failure to do so may be deemed to waive the objection. The court does not actually say that Defendant waived the objection. If it didn’t, the court doesn’t explain why not. If it did, the court doesn’t explain why it devotes the core of the opinion to an argument that had been waived in the trial court.

The remainder of the opinion – about a third of it – discusses issues that could arise on retrial.

(Opinion: Nevens v. AZHH LLC)

Williamson v. O’Brien (CA1 5/16/17)

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Do judges ever remind you of your kids fighting in the back seat?

In December, Division One issued Passmore v. McCarver – a memorandum decision so we did not review it – holding that dismissal under 12-2603 (failure to file an expert opinion in a med mal case) can be with prejudice. In March, a different panel of Division One used a pro se case (which would normally result in a memorandum) and perhaps an expansive view of what was at issue there to produce Boswell v. Fintelmann, holding that a 12-2603 dismissal must be without prejudice.

It would be interesting to know whether the Boswell panel knew that in January McCarver had asked that his opinion be published; in any event, that request was granted and Passmore was published in April. And so now, in May, we get Williamson, which is effectively Boswell – same panel, same holding, also a pro se case – with the addition of a paragraph criticizing Passmore.

Apparently there is some serious arguing going on over there since the only conceivable reason to issue an opinion in this case is to take a publicized shot at Passmore; for all we know that’s what they had in mind with Boswell, too.

Williamson teaches that failure to file the affidavit is a “substantive pleading failure” and not a failure to prosecute. Passmore said the opposite but is wrong, according to Williamson, because Passmore cited a case that said in passing that the statute applies to an “expert witness.” Jilly (2009), however,  later held that the statute doesn’t necessarily apply to an expert trial witness – the affidavit can come from someone else – and that’s why it doesn’t violate the Supreme Court’s rulemaking authority. Whether that begs the question we leave as an exercise for the reader.

(Opinion: Williamson v O’Brien)