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Notice of Claim--Factual Support for Damage Amount Minimal

Civil Procedure – Notice of Claim – Facts Necessary to Support Claim

Havasupai Tribe v. Arizona Board of Regents, 544 Ariz. Adv. Rep. 10 (Ariz. Ct. App. Div. 1, November 28, 2008)(Judge Johnsen) NOTICE OF CLAIM/INFORMED CONSENT/WAIVER AND ESTOPPEL/PROPER PERSON FOR SERVICE OF PROCESS.

An ASU professor who had studied the Havasupai Tribe in the bottom of the Grand Canyon for many years undertook to determine whether or not there was a genetic explanation for the high incidence of diabetes in the tribe. The tribe gave specific and limited permission to study this issue many blood samples of tribal members which were given to the professor. This professor then sought help from another professor at ASU with expertise in analyzing blood samples. This second professor quietly studied and allowed others to study this blood for totally different reasons.

Sometime thereafter it was concluded that the rapid increase in diabetes that occurred since the blood samples were taken clearly demonstrated that this was not a genetic problem so the blood study project for that purpose was concluded. However, unbeknownst to the tribe or the professor who secured the permission to obtain the blood samples, the blood was analyzed for a number of other purposes and used to support a number of doctoral dissertations on subjects such as schizophrenia and the transcontinental migration theory. This latter use was particularly offensive to the Havasupai since they believe they originated in the Grand Canyon.

When these unknown uses of the blood lacking consent were discovered, the tribe issued a banishment agreement banishing all ASU professors and employees from the reservation. The tribe also threatened to conduct a press conference to inform the public of the unauthorized and inappropriate use of the blood samples by ASU. In response, ASU persuaded the tribe not to hold a press conference in exchange for a joint confidentiality and cooperative investigation agreement whereby ASU agreed to try to find out exactly how and why the unauthorized uses occurred.

After the investigation was concluded the tribe and ASU attempted to reach a settlement but were unsuccessful.

Three days after the investigation report was released the tribe served its first notice of claim upon the professor whom they had agreed to allow to take the blood samples, the attorney general and president of Arizona State University. Copies of the notice were also served upon ASU’s general counsel and the assistant attorney general. The notice specifically stated that it was on behalf of the tribe and as parens patriae for all members of the tribe involved in the diabetes project.

In essence the notice of claim stated that ASU had conducted genetic experiments on blood samples and derivatives for purposes unrelated to diabetes, that the agreement to allow the blood samples was specifically limited to a diabetes study and that unauthorized analysis of the blood was used in support of published papers unrelated to diabetes which disclosed private genetic data and other private information to the public. Further the tribe alleged that the blood samples were inappropriately distributed to third parties to the original contract for the taking of the blood. These third parties also performed unauthorized research and published results of the research without authorization. Finally, the tribe noted that it was unaware of the full extent of the unauthorized use of the blood samples since they were taken from the reservation and the tribe did not yet know all uses the blood was put to despite requests to obtain that information previously directed to ASU. The tribe reserved the right to amend and supplement its notice of claim as a result. A subsequent notice of claim was then filed again stating that ASU had not disclosed all the relevant facts including the whereabouts of the blood and genetic material taken from the tribe and the uses to which the blood and geneticmaterials had been put. Despite this the notice of claim stated that the tribe was willing to settle for $50,000,000. In yet another notice of claim sent only to the attorney general the tribe identified legal theories of breach of fiduciary duty, lack of informed consent, fraud, misrepresentation, fraudulent concealment, intentional infliction of emotional distress, negligent infliction of emotional distress, conversion, violation of civil rights, negligence, gross negligence and negligence per se.

Defendant’s challenged the efficacy of the notice of claim arguing it did not state enough facts to support the amount of the demand.

The court disagreed with the defendants finding that a notice of claim need not set forth “all facts known by the claimant about the alleged wrong and all facts known to the claimant about the damages.” Rather the statute simply requires the claimants set forth “the facts supporting” the demand. It does not require “all facts”.

In short, the facts which must be set forth in a notice of vlaim does not require facts that “demonstrate that the settlement demand is reasonable. Instead it is whether the notice of claim, read as a whole, provides facts supporting the settlement demand.”

Finally the defendants claim that the notice of claims in this case were untimely because they were not served within 180 days of the date the tribe’s claims “accrued.” The defendants claimed that the action accrued on the date they received the letter from the professor stating that he had learned the blood had been used for purposes other than what had been agreed to. Alternatively the date of the banishment order was argued to be the date of the accrual. In response, the tribe asserts that it did not discover the facts that triggered the accrual until after the tribe and ASU had agreed they would do an investigation to figure out how and why the blood was misused and the tribe had a change to discuss the investigation with the investigator and the investigation was complete. The court of appeals found that a question of fact exists with respect to the accrual issue. The question to be decided is when precisely did the tribe learn that it had been damaged and likewise know or “should have known the cause of that damage.”

Next the defendant’s claim the notice of claim were not served upon the appropriate individual. The notice of claim statute §12-821.01(A) provides service shall be made upon the “the appropriate legal officer, if any representing the entity.” Here it is undisputed that the tribe’s notices were delivered to the vice-president and general counsel of ASU as well as the assistant attorney general and therefore this defense was without merit.

Finally the defendant’s claim the notices of claim fail because they did not set forth a specific dollar amount for each plaintiff but rather a lump sum amount for the tribe as a whole. This argument was based upon case law interpreting Rule 68 Offers of Judgment wherein the court’s had previously found individual amounts must be set forth when there are multiple plaintiffs. The court of appeals however disagreed finding that Rule 68 requirements were not applicable to Arizona Revised Statute §12-821.01 notices of claim.

If you or a loved one has been seriously injured or you have lost a loved one due to the negligence of the government, be it a teacher, police officer or road designer, you must file a notice of claim within 180 and meet a number of technical requirements. It is critical you do not delay in hiring an attorney on any claim where the government or its subdivisions may be involved.

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Notice of Claim--Factual Support for Damage Amount Minimal