Arizona Attorney - April 2017

speculative predictions about the future. Sherman v. Sherman, 1 CA-CV

15-0201FC, 11/1/16.

Arizona family court had
jurisdiction and New York adop-
tion court did not under the
UCCJEA and federal Parental
Kidnapping Prevention Act
(PKPA). Potential father filed a peti-
tion to establish paternity in Ari-
zona three days after child’s birth
and adopting parents filed adopt-
ion proceedings later the same day.
The resulting New York adoption
judgment was not entitled to full
faith and credit in Arizona be-
cause the New York court failed
to exercise jurisdiction consistent
with the PKPA, barring exercise of
jurisdiction in a later-filed case. Ra-
mirez v. Barnet, 1 CA-CV 15-0568-
FC, 11/22/16.

Detailed summaries of selected cases and other court news may be found at www.azapp.com.

The Arizona Supreme Court accepted review or jurisdiction of the following petitions on Feb. 14, 2017*:

Diane Flynn et vir v. Sarah Campbell, CV-16-0199-PR; 1 CA-CV 15-0278

• Issue:

Arizona law regarding Rule 15(c) relation back is well settled. An amended complaint does not relate back when the plaintiff knew the identity of the purported tortfeasor, but made a mistake of law in the original complaint regarding whom to sue. Here, Flynn knew the identity of the other driver, but she made a mistake of law by naming State Farm (the other driver’s insurer) as the defendant in her negligence complaint. After the statute of limitations expired, Flynn filed an amended complaint attempting to add the driver as a new defendant. Did the court of appeals err as a matter of law in ruling that the amended complaint related back to the original because Flynn was unrepresented and ‘failed to appreciate State Farm’s role,’ even though she ‘knew Campbell had caused the accident’?

Rasor/Miller v. Northwest Hospital LLC, CV-16-0134-PR; CA-CV 15-0065

• Defendant/Appellee/Petitioner Northwest Hospital LLC d/b/a Northwest Medical Center’s Petition for Review issues:

1(a). Does A.R.S. § 12-2604 require that a defendant in a medical malpractice action file a motion challenging a plaintiff’s preliminary expert affidavit, submitted pursuant to A.R.S. § 12-2603, before filing a motion for summary judgment?

1(b). When a plaintiff fails to provide the requisite expert testimony in response to a motion for summary judgment challenging the qualifications of a plaintiff’s standard of care expert, pursuant to A.R.S. § 12-2604 and Rule 702, ARIZ. R. EVID., does A.R.S. § 12-2603 dictate that a trial court abuses its discretion, as the Court of Appeals held, by granting summary judgment instead of giving the plaintiff another chance to come up with the requisite evidence because the defendant did not first challenge the preliminary expert affidavit even though the plaintiff argued that the expert was qualified, did not request Rule 56(f), ARIZ.R.CIV.P., relief and failed to request an opportunity to substitute the expert until after the discovery deadline and summary judgment deadline?

• Rasor/Miller Cross Petition/Petition for Review issue: Whether Julie Ho, RN, qualified to offer expert opinion under A.R.S. § 12-2604.

Gila River Indian Community v. DCS/Sarah H. et al., CV-16-0220-PR; 1 CA-JV 16-0038

• Issue:

[The Indian Child Welfare Act (“ICWA”)] was enacted to protect Indian tribes and tribal families by establishing minimum federal standards for Indian child custody proceedings in state courts. 1911(b) permits an Indian tribe to transfer a state court proceeding, which is characterized by foster care placement or termination of parental rights, to tribal court. Although a dependency case in Arizona may have several overlapping actions, the court of appeals limited the interpretation of 1911(b) to prohibit transfer after parental rights are terminated. Did the COA err in holding that the plain language of 1911(b) prohibits transfer of a dependency case after parental rights have been terminated?

Ernest Quiroz et ux. v. Alcoa Inc et al., CV-16-0248-PR; 1 CA-CV 15-0083

• Issues:

1. Dr. Quiroz’s father worked at the Reynolds aluminum plant, where Reynolds used and exposed him to toxic asbestos materials. His father unknowingly carried asbestos dust home on his clothing, where Dr. Quiroz was exposed to it as a child and adolescent, resulting in his development of mesothelioma. Did Reynolds owe a duty of care to protect Dr. Quiroz from the risk of injury created by its use of toxic asbestos on its premises?

2. This Court has previously observed, without deciding, that “one could conclude that people generally ‘owe a duty to exercise reasonable care to avoid causing physical harm’ to others, subject to exceptions that eliminate or modify this duty for reasons of policy.” Gipson, 214 Ariz. at 146 n. 4, ¶ 24. Should the Court adopt this approach to duty, including with respect to possessors of land, as reflected in the Third Restatement?

A. B. v. Hon. Lynch/G.O., CV-16-0192-PR; 1 CA-SA 16-0136

• Issue:

Whether A.R.S. § 28-672(G), which limits the amount of restitution trial courts can order to a victim of a serious physical injury or death by moving violation to $10,000, regardless of a victim’s actual economic loss, is unconstitutional?