Civil Procedure—Timeliness of Notice of Claim Cruz v. City of Tucson, 770 Ariz. Adv. Rep. 8 (App. Div. II, August 1, 2017) (J. Vasquez) NOTICE OF CLAIM MUST BE FILED WITHIN 180 DAYS OF WHEN PLAINTIFF KNOWS OR REASONABLY SHOULD KNOW SHE HAS BEEN DAMAGED AND THE CAUSE, SOURCE, ACT, EVENT, INSTRU...
Schmidt, Sethi & Akmajian Blog
Taylor Swift on Cross Examination
A civil trial in Denver that pits Taylor Swift against a disgraced radio DJ is shining a light on Taylors meet and greets and the abuse performers - especially female performers - are susceptible to. Her testimony is a masterclass in dealing with aggressive cross examination. In 2013 Taylor wa...
Civil Procedure: Failure to Plead Right to Arbitration & Waiver/Application of Federal vs State Law
Security Alarm Financing Enterprises v. Fuller,___ Ariz. Adv. Rep. __, 1CA-CV-16-0255 (App. Div. I, July 6, 2017) (J. Johnsen) WHETHER FAILURE TO PLEAD RIGHT TO ARBITRATION UNDER FEDERAL ARBITRATION ACT CONSTITUTES WAIVER OF THIS RIGHT IS GOVERNED BY FEDERAL LAW WHICH REQUIRES A SHOWING OF PREJU...
CLE Fast Track Trials Training and Seminars by the PCBA
Beginning on October 1, 2017, the Superior Court in Pima County will launch a three-year pilot program designed to resolve less complicated civil claims through the Fast Trial and Alternative Resolution Program (“FASTAR”). Ted Schmidt will be one of the hosts for the training session in August ...
Civil Procedure: Remittitur and Additur
Soto v. Sacco, __Ariz. Adv. Rep. __ No. CV-16-0136-PR (July 13, 2017) (J. Lopez) TRIAL COURT HAS DISCRETION UNDER RULE 59(a)&(i) TO ISSUE REMITTITUR OR ADDITUR OF JURY VERDICT IF IT ADEQUATELY STATES THE GROUNDS AND EXPLAINS ITS RULING WITH SUFFICIENT PARTICULARITY TO AVOID SPECULATION AS TO...
Torts: Negligence Standard of Care for Broker & Contractual Waiver of Right to Jury Trial
BNCCORP Inc. v. HUB Int'l Ltd, __Az. Adv. Rep.__ (App. Div. I, July 11, 2017) (J. Thompson) CONTRACTUAL WAIVER OF RIGHT TO JURY TRIAL INCLUDED CIVIL CLAIMS OF NEGLIGENCE & AFFILIATE TO PARTY TO CONTRACT IS BOUND BY WAIVER/INSURANCE BROKER STANDARD OF CARE DOES NOT REQUIRE ASSESSMENT OF RISKS...
Civil Procedure: Notice of Claim Must Contain Sum Certain Which Will Settle All Claims
Yahweh v. City of Phoenix, __ Ariz. Adv. Rep. __ No. 1 CA-CV 160207 (App. Div. I, July 11, 2017) (J. Beene) NOTICE OF CLAIM RECITING AMOUNT PLAINTIFF WILL PLEAD IN COMPLAINT DOES NOT SATISFY REQUIREMENT NOTICE ARTICULATE AMOUNT PLAINTIFF WOULD ACCEPT TO SETTLE ALL CLAIMS Plaintiff, was a dete...
Torts: Elements of Abuse of Vulnerable Adult Claim
Delgado v. Manor Care of Tucson, 767 Ariz. Adv. Rep. 47 (June 20, 2017)(J. Gould) VULNERABLE ADULT CLAIMS UNDER APSA NO LONGER REQUIRE PROOF THE ALLEGED NEGLIGENCE IS LINKED TO SERVICE THE CAREGIVER RENDERS DUE TO RECEPIENT'S INCAPACITY AND RELATED TO THE PROBLEM(S) CAUSED BY THE INCAPACITY ...
Firm Sponsored Charity "Engage" Off to a Great Start
Kinerk, Schmidt & Sethi takes pride in playing an active role in trying to make our local community a better place to live in. From Tucson Soccer Academy (Ted Schmidt) to Ben's Bells (Dev Sethi) to little league baseball (Jim Campbell), we encourage all of our lawyers to get involved. As pres...
Call 911 To Get Your Family Member Out Of A Neglectful Nursing Home Before It Is Too Late
Often family members feel helpless when they watch their loved one in a nursing home get worse, because they are not getting the care they need. Anyone, at anytime, can call 911 to have their family member transported to a hospital to get the care they need.
Federal Torts Claim Act—Exhaustion of Administrative Remedies
D.L. v. Vassiliev, __F3d__, No. 15-15542 (June 5, 2017) (J. Lasnik) FAILURE TO SERVE NOTICE OF CLAIM CURED WHERE FIRST ACTION VOLUNTARILY DISMISSED AGAINST DEFENDANT DOCTOR FOLLOWED BY PROPER NOTICE OF CLAIM AND SECOND FILING Plaintiff sued the defendant doctor in state court unaware he was a...
Torts: Duty—Patient Has Duty of Care to Caregiver/Fireman’s Rule Inapplicable
Sanders v. Alger, 766 Ariz. Adv. Rep. 22 (June 1, 2017) (J. Bales) PATIENT HAS DUTY TO EXERCISE REASONABLE CARE INTERACTING WITH CAREGIVER BASED UPON CAREGIVER/PATIENT RELATIONSHIP & RESCUE RULE/CAREGIVER NOT A PROFESSIONAL RESCUER ACTING IN RESPONSE TO AN EMERGENCY HENCE FIREMEN'S RULE NOT...
Evidence: Rebuttal Expert Witnesses—One Expert Per Issue/Cumulative
Nevens v. AZHH, LLC, 766 Ariz. Adv. Rep. 19 (App. Div. I, May 30, 2017) (J. Downie) REBUTTAL EXPERT ADDRESSING CAUSATION ISSUE NOT ADDRESSED IN CASE IN CHIEF ALLOWED/LOSS OF CONSORTIUM OF PARENT DOESN'T REQUIRE CATASTROPHIC INJURY Plaintiff sued the Arizona Heart Hospital [AZHH] as a vulnerab...
Tesla Model X Gets 5 Star Safety Rating
Tesla's Model X SUV is the first SUV to receive 5 star crash-test ratings in every single test category. Hundreds of other SUV models have been given five stars overall by the National Highway Traffic Safety Administration. But in each case, the SUV received only four stars on one of the componen...
Civil Procedure: Appeal of Agency ALJ Decision is to Superior Court
Johnson v. Arizona Dept of Registrars, __ Ariz. Adv. Rep. __, No. 1 CA-CV 16-026 (App. Div. I, May 25, 2017) (J. Norris) APPEAL OF AGENCY DECISION BY ADMINISTRATIVE LAW JUDGE IS TO SUPERIOR COURT & NOT TO AGENCY Plaintiff filed claim with Registrar of Contractors [Registrar] for faulty r...
Checklists Help Maintain Patient Safety in the Operating Room
Medical care is rushed and extremely complex. Checklists help prevent serious medical mistakes.
Civil Procedure—General Jurisdiction Over Foreign Corporation Doing Business in State
Wal-Mart Stores, Inc. v. LeMaire, 764 Ariz. Adv. Rep. 29 (App. Div. I, May 11, 2017) (J. Swann) FOREIGN CORPORATION MUST BE INCORPORATED IN STATE, HAVE PRINICIPAL PLACE OF BUSINESS IN STATE OR CONSENT TO JURISDICTION IN STATE IN ORDER FOR THERE TO BE GENERAL JURISDICTION FOR EVENT OCCURING OUTS...
New Arizona Laws that Affect You
The Legislature has adjourned for the Summer. the 2017 Session resulted in 353 passed bills. The Governor has signed over 300 of them so far, and he is expected to sign more in the coming days. With the exception of the texting law, these go into effect on August 9, 2017. [Kids] Don't Text and...
Kinerk, Schmidt & Sethi May 2017 Newsletter
We have just released our latest newsletter! We cover a wide variety of topics: Ted Schmidt wrote about protecting your own family and the duty to report sexual predators Dev Sethi discussed recent changes to Rule 28 and Rule 30 Jim Campbell explains the myth of the medical malpractice crisi...
New Tucson Ordinance Added to the Mix of Hands-Free Laws in Southern Arizona
It's a familiar and frightening scene: red light, head down, hands occupied by email, text, or Facebook. We have all heard one too many tragedies resulting from distracted driving. Effective May 1st, the City of Tucson's new ordinance is putting the pressure on drivers to break this deadly habit....
Torts/Workers’ Comp—Employee vs Independent Contractor
Wagner v. State, 763 Ariz. Adv. Rep. 32 (App. Div. I, April 20, 2017) (J. Cattani) WHERE STATE HAD OBLIGATION TO PROVIDE MEDICAL CARE TO INMATES AND EXERCISED CONTROL OVER OUTSIDE AGENCY STAFFING SOCIAL WORKERS AT PRISON, SOCIAL WORKER WAS STATUTORY EMPLOYEE OF STATE FOR PURPOSES OF WORKERS' COM...
The Arizona College of Trial Lawyer's Seminar on "The Science of Jury Decisions"
Ted Schmidt, a member of the Arizona College of Trial Lawyers, chaired a phenomenal seminar in Phoenix last Friday, "The Science of Jury Decisions," where a combination of speakers with both legal and science backgrounds talked about different psychological concepts that can have an impact on ho...
Steroids Are Not Approved for Epidural Injections And Can Cause Severe Neurological Injury
Steroids injections into the spine are frequently used as an off label treatment for pain. While common, these injections can cause serious neurological injury. Before having this procedure, you should make sure you understand and discuss these risks with your doctor.
Ted Schmidt & Dev Sethi Are 2017's Super Lawyers
Kinerk, Schmidt, & Sethi is celebrating this week as Ted Schmidt was listed as one of Super Lawyer Magazine's Top 50 Lawyers in Arizona and one of only 5 in in the city of Tucson! Dev Sethi was selected in Super Lawyers under General Personal Injury. Ted was also listed again in Personal Inju...
Civil Procedure: Dismissal for Failure to File Expert Affidavit in Med Mal Case & Savings Statute
Passmore v. McCarver, 762 Ariz. Adv. Rep. 10 (App. Div. I, April 6, 2017) (J. Swann) FAILURE TO TIMELY FILE EXPERT AFFIDAVIT IN MED MAL CASE W/IN STIPULATED EXTENSION CONSTITUTES FAILURE TO PROSECUTE JUSTIFYING DISMISSAL AND RENDERING RELIEF UNDER SAVINGS STATUTE DISCRETIONARY Plaintiff brou...