By Ted Schmidt, Dev Sethi, Matt Schmidt, Burt Kinerk
Civil Procedure—Dismissal of Appeal from Compulsory Arbitration for Failure to Participate in Good Faith
Romer-Pollis v. Ada, __ Ariz. Adv. Rep. __, 1 CA-CV 08-0692 (App., Div. I, December 24, 2009) (J. Portley)
PLAINTIFF’S FAILURE TO ATTEND COMPULSORY ARBITRATION HEARING AND FAILURE TO SUBMIT PRE-HEARING STATEMENT PER ARBITRATOR’S ORDER CONSTITUTES ADEQUATE GROUNDS TO DISMISS PLAINTIFF’S APPEAL FROM ARBITRATION AWARD
Plaintiff filed a lawsuit against the defendant for injuries sustained in an automobile accident. The case was subject to compulsory arbitration. The arbitrator scheduled a hearing and ordered a pre-hearing statement be filed by each party at least 15 days before the hearing. The plaintiff never filed this statement.
The plaintiff did not attend the hearing. Instead her lawyer appeared on her behalf telephonically. She was awarded $4,000 plus taxable costs and appealed this award. The defense moved to dismiss the appeal on the basis the plaintiff failed to appear at the hearing and participate in good faith. The trial court agreed and granted the motion. Plaintiff appealed this dismissal to the Court of Appeals.
Arizona Rule of Civil Procedure 77(a) states that an appeal is subject to dismissal for failure to appear a hearing or participate in good faith on waiver grounds. Here where the plaintiff has the burden of proof, failure to participate in the hearing and comply with the arbitrator’s orders for a pre-hearing statement with a list of exhibits and witnesses was a sufficient basis to find waiver and dismiss the appeal.
The court distinguished Lane v. City of Tempe, 202 Ariz. 306, 44 P.3d 986 (2002) where a defendant’s failure to appear was found not a basis for dismissing the defendant’s appeal because in Lane there was no showing the plaintiff was prejudiced by the nonappearance. In fact, in Lane the plaintiff recovered a satisfactory award at the hearing and was not hampered by the nonappearance. Similarly in Graf v. Whitaker, 192 Ariz. 403, 966 P.2d 1007 (App. 1998), the defendant’s failure to attend the hearing was not grounds for dismissal of his appeal where the only issue at the arbitration was the amount of the damages. Here where plaintiff has the burden of proof and fails to even file a pre-hearing statement, the trial court is justified in dismissing plaintiff’s appeal from arbitration.
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Thursday, December 24, 2009
Tuesday, December 22, 2009
Pet is Personal Property so no Emmotional Distress Damages for Pet's Death
By Ted Schmidt, Dev Sethi, Matt Schmidt, Burt Kinerk
Torts—Damages for Veterinary Malpractice Limited to Fair Market Value of Pet’
Kaufman v. Langhoffer, 572 Ariz. Adv. Rep. 11 (App., Div. I, December 22, 2009)(J. Norris)
PET IS PERSONAL PROPERTY AND REMEDY FOR VETERINARY MALPRACTICE IS THE FMV OF THE PET; EMMOTIONAL DISTRESS DAMAGES NOT RECOVERABLE
Plaintiff owned a scarlet Macaw appropriately named “Salty.” Salty was “intelligent, affectionate and playful.” Salty got sick. Plaintiff took him to the defendant vet who performed two surgeries after which Salty died. The jury found fault but awarded no damages.
On appeal the Court of Appeal first recognized that a pet is personal property. Second the court stated the only circumstance where a plaintiff can recover emotional distress damages for the loss or damage to personal property is where the tort directly harmed the plaintiff and burdened a personal rather than economic interest of the plaintiff. Here the vet’s alleged negligence harmed Salty but did not directly harm the plaintiff so no emotional distress damages are allowed.
Finally the court supported its holding by pointing out that to allow emotional distress and lost companionship damages to a pet owner would give greater rights for the death of a pet than a person. In Arizona, a plaintiff can only recover for the death of another person if he or she is a proper wrongful death beneficiary or was in the “zone of danger” when the third person was injured or killed. Although Salty was no doubt dearly loved and is greatly missed, he was neither the spouse, parent nor child of the plaintiff and the plaintiff was not within the zone of danger when Salty kicked the bucket.
Torts—Damages for Veterinary Malpractice Limited to Fair Market Value of Pet’
Kaufman v. Langhoffer, 572 Ariz. Adv. Rep. 11 (App., Div. I, December 22, 2009)(J. Norris)
PET IS PERSONAL PROPERTY AND REMEDY FOR VETERINARY MALPRACTICE IS THE FMV OF THE PET; EMMOTIONAL DISTRESS DAMAGES NOT RECOVERABLE
Plaintiff owned a scarlet Macaw appropriately named “Salty.” Salty was “intelligent, affectionate and playful.” Salty got sick. Plaintiff took him to the defendant vet who performed two surgeries after which Salty died. The jury found fault but awarded no damages.
On appeal the Court of Appeal first recognized that a pet is personal property. Second the court stated the only circumstance where a plaintiff can recover emotional distress damages for the loss or damage to personal property is where the tort directly harmed the plaintiff and burdened a personal rather than economic interest of the plaintiff. Here the vet’s alleged negligence harmed Salty but did not directly harm the plaintiff so no emotional distress damages are allowed.
Finally the court supported its holding by pointing out that to allow emotional distress and lost companionship damages to a pet owner would give greater rights for the death of a pet than a person. In Arizona, a plaintiff can only recover for the death of another person if he or she is a proper wrongful death beneficiary or was in the “zone of danger” when the third person was injured or killed. Although Salty was no doubt dearly loved and is greatly missed, he was neither the spouse, parent nor child of the plaintiff and the plaintiff was not within the zone of danger when Salty kicked the bucket.
Thursday, December 17, 2009
State Tort Claims Not Preempted for Failure to Warn Regarding Generic Drug
By Ted Schmidt, Dev Sethi, Matt Schmidt, Burt Kinerk
Torts—Federal Preemption Not Applicable to Failure to Warn Generic Drugs
Kellogg v. Wyeth, __ F. Supp. 2d __, 2008 WL 5272715 (D. Vt., December 17, 2008)
FEDERAL LAW DOES NOT PREEMPT STATE LAW FAILURE TO WARN CLAIMS AGAINST GENERIC DRUG MANUFACTURER
A precursor to the United States Supreme Court’s landmark denial of preemption in Wyeth v. Levine, 555 U.S.__(March 4, 2009), the Vermont District Court found no federal preemption to state tort claims that the manufacturer of metoclopramide (generic equivalent of gastric reflux drug Reglan) failed to properly warn consumers of the drug’s potential side effects. In so ruling the court was prescience of the Supreme Court’s ruling and properly rejected the reasoning of the Kentucky District Court who on essentially the same facts and arguments found the state tort claims to be preempted. Morris v. Wyeth, __F. Supp. 2d__, 2008 WL 4696924 (W.D. Ky., October 24, 2008).
The defense arguments in all three cases were the same. The defense claimed it was impossible to comply with the federal requirements and then the individual, jury-made, case by case requirements in 50 different states at the same time. The defense claimed the agency had expressed an intent to preempt in its preamble and that this was an area where the FDA was better suited to regulate at a predictable and practical national level the industry and consumer safety. In fact, the defense argued, without preemption a manufacturer could be forced to “misbrand” its drug in order to comply with state law where a particular state might require a warning in conflict, perhaps even disapproved by the FDA.
The Vermont District court first reaffirmed that there is a strong presumption against preemption especially in areas such as health and safety and welfare which are so typically the purview of the states. There must be a clear congressional intent to create preemption.
The court rejected the “misbranding” argument stating a tort judgment does not compel a manufacturer to do anything with its label and there is no evidence the agency has ever pursued a “misbranding” claim against a manufacturer who improved its warning in response to a state tort law suit.
The court observed that the FDA labeling regulations are minimal standards and complimentary not exclusive to state tort law claims. Finally, there was no evidence that this case would have required the manufacturer to publish a warning that had in fact already been scrutinized and rejected by the FDA which was the limited circumstance addressed in the FDA’s statement in the preamble of the act on the subject of preemption.
If you or a loved one has been seriously injured or killed by a defective product, contact us we may be able to help.
Torts—Federal Preemption Not Applicable to Failure to Warn Generic Drugs
Kellogg v. Wyeth, __ F. Supp. 2d __, 2008 WL 5272715 (D. Vt., December 17, 2008)
FEDERAL LAW DOES NOT PREEMPT STATE LAW FAILURE TO WARN CLAIMS AGAINST GENERIC DRUG MANUFACTURER
A precursor to the United States Supreme Court’s landmark denial of preemption in Wyeth v. Levine, 555 U.S.__(March 4, 2009), the Vermont District Court found no federal preemption to state tort claims that the manufacturer of metoclopramide (generic equivalent of gastric reflux drug Reglan) failed to properly warn consumers of the drug’s potential side effects. In so ruling the court was prescience of the Supreme Court’s ruling and properly rejected the reasoning of the Kentucky District Court who on essentially the same facts and arguments found the state tort claims to be preempted. Morris v. Wyeth, __F. Supp. 2d__, 2008 WL 4696924 (W.D. Ky., October 24, 2008).
The defense arguments in all three cases were the same. The defense claimed it was impossible to comply with the federal requirements and then the individual, jury-made, case by case requirements in 50 different states at the same time. The defense claimed the agency had expressed an intent to preempt in its preamble and that this was an area where the FDA was better suited to regulate at a predictable and practical national level the industry and consumer safety. In fact, the defense argued, without preemption a manufacturer could be forced to “misbrand” its drug in order to comply with state law where a particular state might require a warning in conflict, perhaps even disapproved by the FDA.
The Vermont District court first reaffirmed that there is a strong presumption against preemption especially in areas such as health and safety and welfare which are so typically the purview of the states. There must be a clear congressional intent to create preemption.
The court rejected the “misbranding” argument stating a tort judgment does not compel a manufacturer to do anything with its label and there is no evidence the agency has ever pursued a “misbranding” claim against a manufacturer who improved its warning in response to a state tort law suit.
The court observed that the FDA labeling regulations are minimal standards and complimentary not exclusive to state tort law claims. Finally, there was no evidence that this case would have required the manufacturer to publish a warning that had in fact already been scrutinized and rejected by the FDA which was the limited circumstance addressed in the FDA’s statement in the preamble of the act on the subject of preemption.
If you or a loved one has been seriously injured or killed by a defective product, contact us we may be able to help.
Saturday, December 12, 2009
New Justice Appointed to Arizona Supreme Court by Ted Schmidt
By Ted Schmidt, Dev Sethi, Matt Schmidt, Burt Kinerk
New Justice Appointed to Arizona Supreme Court by Ted Schmidt
Ted Schmidt
Governor Brewer Chooses Chief Presiding Judge of Yavapai County Superior Court to Sit on Supreme Court
Governor Brewer Chooses Chief Presiding Judge of Yavapai County Superior Court to Sit on Supreme Court
52 years old, lifelong Republican, ASU undergrad Honors in Economics (79), UA Law (82), intercollegiate wrestler at George Wash Univ., intern in D.C. for DeConcini.
After law school he moved to Prescott where he was in private practice with his own firm and for 4 years he worked for Mike Murphy of Murphy, Lutey & Beck. Mike and Bob Schmitt give him very high marks. As you would expect in a smaller community, his practice was fairly diverse, principally focused on Indian law, business and real estate law. He did some litigation including a small amount of tort work for both plaintiffs and defendants.
He has been a Superior Court Judge since 1996 and Chief Presiding Judge for Yavapai County for about half that time. He is very well liked as a trial judge and presiding judge by the local bar and bench. He is reputed to be smart, fair and practical. He was in fact brought in as a mediator of the recent dispute between the Maricopa County Superior Court and Sheriff Joe Arpaio. To everyone’s amazement he actually brokered a resolution of the dispute.
Finally, he is well known for his many years as an advocate of improvement to the Juvenile Justice system in Az. He has been responsible for many reforms in Yavapai County and throughout the state.
He is the first appointment of someone outside of Maricopa and Pima County to the Az Supreme Court since Yuma’s Duke Cameron retired 20 years ago.
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