Schmidt, Sethi & Akmajian Blog

Civil Procedure: No Issue Preclusion Without Final Judgment

Posted by Ted A. Schmidt | Jan 21, 2022 | 0 Comments

Banner University Medical Center v. Gordon, No. CV-20-0179-PR (January 20, 2022) (J. Montgomery)

There is no issue preclusion created by dismissal with prejudice where there is no final judgement on the merits.

Plaintiffs brought this medical negligence wrongful death action against the defendant hospital and certain treating physicians as a result of the death of their 14- month-old child.  The doctors were dismissed with prejudice due to a failure of plaintiffs to serve them with a notice of claim under A .R.S. § 12-821.01(A). The hospital was sued based upon the vicarious liability of the doctors who were dismissed as well as direct breach of contract and fraud claims. The hospital then moved for summary judgment on the vicarious liability claims taking the position that the dismissal with prejudice of the doctors served as an adjudication on the merits thus precluding the vicarious liability claims against the hospital. Ariz. R. Civ. P. 41(b). The trial court denied the motion comparing the notice of claim statute to a statute of limitations and finding the dismissal was procedural and not an adjudication on the merits. 

 The defendant hospital brought this special action challenging the trial court ruling. The Arizona Court of Appeals accepted jurisdiction and denied relief finding no issue preclusion and finding the claim against the hospital for vicarious liability survived dismissal of the doctors.  The defendant then took the matter to the Arizona Supreme Court which accepted jurisdiction, vacated the court of appeals decision and denied defendant hospital relief. 

“For issue or claim preclusion to apply, there must be a final judgment on the merits . . . . For these reasons, the order dismissing the doctors is not a final judgement. “  Here, where the court's ruling was never reduced to a final judgment with Rule 54(b) language there is no adjudication on the merits and no issue preclusion.

The supreme court also noted that doctors at defendant Banner UMC Hospital (Tucson) are state employees protected by the Notice of Claim statute.

About the Author

Ted A. Schmidt

Ted's early career as a trial attorney began on the other side of the fence, in the offices of a major insurance defense firm. It was there that Ted acquired the experience, the skills and the special insight into defense strategy that have served him so well in the field of personal injury law. Notable among his successful verdicts was the landmark Sparks vs. Republic National Life Insurance Company case, a $4.5 million award to Ted's client. To this day, it is the defining case for insurance bad faith, and yet it is only one of several other multi-million dollar jury judgments won by Ted during his career. He is certified by the State Bar of Arizona as a specialist in "wrongful death and bodily injury litigation".


There are no comments for this post. Be the first and Add your Comment below.

Leave a Comment

Our team works together - for you!

Our award-winning lawyers are backed by a talented, caring team of legal professionals, paralegals, bilingual assistants, notaries, and others - all dedicated to you, your case, and the compensation you deserve.

No fees and no costs until we win.

As such we always have your case and your best interest in mind. When you win, we win too by providing the best legal care possible.

Thorough investigation and preparation.

We tirelessly and thoughtfully prepare every case we represent as though it was going to trial. This lets insurance companies know that we are a force to be reckoned with. As such, we settle successfully 98% of the time.