Ader v. Estate of Felger, __Ariz. Adv. Rep. ___ No. 2 CA-CV 2015-0170 (App. Div. II, May 27, 2016) (J. Vasquez) CLAIMS AGAINST ESTATE BASED UPON PRE-DEATH TORTS ARE GOVERNED BY “NONCLAIMS” STATUTE NOT SOL AND ACCRUE UPON DEATH AND NOT DATE OF DISCOVERY OF CLAIM Plaintiff invested in numerous ...
Schmidt, Sethi & Akmajian Blog
Civil Procedure: Compulsory Arbitration Award Not Final Judgment
Southwest Barricades v. Traffic Mgmt, Inc., 740 Ariz. Adv. Rep. 5 (App. Div. I, June 9, 2016) (J. Gemmill) COMPULSORY ARBITRATION AWARD IS NOT SELF-EXECUTING JUDGMENT—PARTY MUST ASK SUPERIOR COURT TO ENTER FINAL JUDGMENT BEFORE SEEKING RULE 60 (c) RELIEF Plaintiff sued for breach of contract ...
Civil/Appellate Procedure: Signed Order/Remittitur
Soto v. Saco, __ Ariz. Adv. Rep. __, No. 1 CA-CV 15-0092 (App. Div. I, May 19, 2016) (J. Downie) (Trial Judge Michael D. Gordon) TIME TO APPEAL NOT TRIGGERED UNTIL THERE IS A SIGNED ORDER/REMITITUR APPROPRIATE DEFERENCE TO TRIAL JUDGE Plaintiffs were passengers in a cab when it collided with an...
Torts—Medical Malpractice—Expert Qualification/Additional Time to Designate Expert/Discovery
Rasor v. Northwest Hospital, __Ariz. Adv. Rep. __, No.2 CA-CV 2015-0065 (App. Div. II, J. Espinosa) (Trial Judge Leslie Miller) STANDARD OF CARE EXPERT MUST SPEND MAJORITY PRACTICE IN SAME FIELD AS DEFENDANT PREVIOUS YEAR/DISCOVERY OF PRIOR SIMILAR INCIDENTS ALLOWED In this medical malpractice...
Tire Safety -- Check this Recall List
The Rubber Manufactures Association, RMA, has launched an online tool that makes searching for tire recalls easy. Simply enter your tire's Tire Identification Number, and you check to see if there are any open recalls associated with your tires. Every tire sold in the United States has a Tire I...
Spring 2016 Thinking
The latest Kinerk Schmidt & Sethi, PLLC newsletter is out. Check out our thinking on a dangerous snapchat filter that encourages reckless driving, social media and jury selection, the sprawling Takata airbag recall, and more. Click here to read more.
Pima County Bans Texting and Driving
Today the Pima County Board of Supervisors voted unanimously to ban texting and driving. The push for this safety measure was lead by two of our former clients -- Brendon Lyons and Jason Palmieri. Both of these men were struck by distracted motorists, Brendon while riding his bicycle, and Jason...
Civil Procedure: Venue Selection Clause in Contract Signed by Decedent Not Binding on Beneficiaries in Wrongful Death Action
Sierra Tucson, Inc. v.Bergin, __Ariz. Adv. Rep. __ No. 2 CA-SA 2016-0017 (App. Div. II, May 11, 2016) (J. Howard) WRONGFUL DEATH CLAIMS NOT DERIVATIVE OF CLAIMS DECEDENT MIGHT HAVE/CONTRACT NOT BINDING ON THOSE NOT PARTY TO CONTRACT Plaintiffs' decedent allegedly committed suicide while a patie...
Takata Air Bag Recall Doubles in Size - Is My Car One of the 63 Million Impacted?
Federal safety regulators have announced a mass expansion of the ongoing Takata airbag recall. At least 35 million additional airbags made by the auto parts supplier Takata need to be fixed. This more than doubles the scope of what was already the largest automotive recall in American history. ...
Textalyzer - A Device that Allows Police to Check for Recent Text Activity
Joan Claybrook, former Director of the National Highway Transportation Administration, along with several other experts sat down on the Diane Rehm Show this morning to discuss the dangers of distracted driving. What we are doing on our phones today is more than what we were doing two years ago...
2016 Top 10 Patient Safety Problems
Safety mistakes are a constant problem in modern health care. The top ten safety problems include electronic medical records, infections, wrong site surgeries, and doctors not following up on important tests.
Evidence: Present Sense Impression
State v. Wright, 735 Ariz. Adv. Rep. 10 (App. Div. II, March 26, 216) (J. Miller) UNDERCOVER POLICE OFFICER REAL TIME DESCRIPTION OF DRUG TRANSACTION HE WAS OBSERVING CONSTITUTES PRESENT SENSE IMPRESSION EXCEPTION TO HEARSAY RULE An undercover police officer “J.D.” arranged to purchase methamph...
A Tough Reminder -- Distracted Driving Kills.
Brendan Lyons, and his fiance, Lorena, stand out as clients. This firefighter and nurse couple were out for a birthday bike ride when a distracted driver ran them down from behind, changing their lives forever. Since the collision, Brendan has dedicated his time to the cause of road safety -- t...
Patients Frequently Don’t Understand Discharge Instructions
Discharge from the Emergency Department or hospital is often a hectic experience done while the patient does not feel well. All to often, important instructions are communicated at this critical time. Take time to make sure you understand all issues surrounding your past and future care to avoid dangerous complications.
The Supreme Court Judicial Nomination Debate Explained
With the recent passing of Justice Antonin Scalia, a very important bench on the court has opened up for the Supreme Court of the United States. Justice Scalia was one of the most conservative SCOTUS judges ever of a court that has for years been divided, with many extremely important decisions...
Statute of Limitations on “Continuing Wrongs” by Public Employee
Watkins v. Arpaio, 731 Ariz. Adv. Rep. 36 (App. Div. I, February 2, 2016) (J. Johnsen) ACCRUAL OF STATUTE OF LIMITATIONS OF 1 YEAR FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS CLAIM AGAINST PUBLIC EMPLOYEE OCCURS WHEN PLAINTIFF REASONABLY SHOULD KNOW OF THE HARM AND ITS CAUSE Plaintiff active...
Contracts: Forum Selection Clause--Waiver
Russo v. Barger, 731 Ariz. Adv. Rep. 31 (App. I, January 26, 2016) (J. Downey) RIGHT TO ASSERT FORUM SELECTION CLAUSE WAIVED BY SUBSTANTIAL PARTICIPATION IN STATE COURT ACTION In this lawsuit involving a real estate dispute in Mexico the trial court granted defendant's motion to dismiss ruling ...
Torts/Agency: Enforceability of Agreement to Arbitrate in Nursing Home Contract
Escareno v. Kindred Nursing Centers West, LLC, 731 Ariz. Adv. Rep. 41 (App. Div. II, January 26, 2016) (J. Vasquez) TO ESTABLISH AGENCY IT MUST BE PROVEN THE PRINCIPAL HAS MANIFEST ASSENT TO THE EXISTENCE OF AGENCY RELATIONSHIP Plaintiff's decedent mother died in defendant's nursing home. When...
Trials—Ex Parte Communication with Juror by Bailiff
American Power Products, Inc. v. CSK Auto, Inc., 731 Ariz. Adv. Rep. 28 (February 5, 2016) (J. Brutinel) IMPROPER BUT OBJECTIVELY NONPREJUDICIAL STATEMENT BY BALIFF TO JUROR NOT GROUNDS FOR NEW TRIAL AND NO EVIDENTIARY HEARING REQUIRED WHEN THERE EXISTS NO SIGNIFICANT FACT QUESTION After a twe...
Torts—Medical Malpractice—Battery
Carter v. The Pain Center of Arizona, PC, 731 Ariz. Adv. Rep. 34 (App. Div. I, February 2, 2016) (J. Johnsen) TORT OF BATTERY IN MEDICAL NEGLIGENCE CASE DOES NOT REQUIRE INTENTIONAL HARM OR INTENTIONAL OFFENSIVE TOUCHING WHERE THEORY IS WILFUL DISREGARD OF PLAINTIFF'S LIMITED CONSENT After a f...
Nakamura Judicial Workshop
Thank you for joining us for the 2016 Nakamura Judicial Workshop. Please click the link below to access the CLE materials, agenda, and CLE Certificate. Please make sure to keep the CLE Certificate for your records.
Torts—Product Liability—Duty to Warn—Prescription Drugs—Learned Intermediary Doctrine—Consumer Fraud Act
Watts v. Medicis Pharmaceutical Corp., 730 Ariz. Adv. Rep. 26 (January 21, 2016) (VCJ Pelander) DRUG MANUFACTURER PROTECTED FROM LIABILITY TO CONSUMER UNDER LEARNED INTERMEDIARY DOCTRINE IF IT ADEQUATELY WARNS PRESCRIBING PHYSICIANS OF SIDE EFFECTS/A DRUG IS “MERCHANDISE” AND THUS COVERED UNDER ...
Evidence: Rule 702 Expert Witness Testimony Court as Gatekeeper
State v. Romero, 730 Ariz. Adv. Rep. 4 (January 20, 2016) (C.J. Bales) PARTY MAY OFFER EXPERT IN FIELD OTHER THAN OPPONENT'S AREA OF EXPERTISE The defendant was convicted of second degree murder based in part upon the government's firearms expert testimony matching toolmarks on shell casings wi...
Torts: Insurance Agent Malpractice in Procuring UM/UIM/Fraud & Consumer Fraud/Negligent Infliction of Emotional Distress
Murray v. Farmers Ins. Co., 730 Ariz. Adv. Rep. 9 (App. Div.II, January 19, 2016) (J. Espinosa) INSURANCE AGENT MAY BE LIABLE FOR MISLEADING INSUREDS INTO PURCHASING INSUFFICIENT UM/UIM COVERAGE EVEN WHERE DOI FORMS SIGNED/NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS ALLOWED FOR HARM TO PEACE OF M...
Exploding TriStar Pressure Cookers
You have probably seen them on infomercials like this one: These cookers look very appealing. After all, who wouldn't want to cook a large meal quickly, cheaply and with little clean-up. Unfortunately, there is a reason they are cheap: they are made cheap, which is a problem when you are deali...