United States District Court, D. Arizona
ORDER
HONORABLE STEVEN P. LOGAN, UNITED STATES DISTRICT JUDGE
Before
the Court is Plaintiffs' Renewed Motion to Strike
Defendants' Notice of Non-Parties at Fault (Doc. 172),
Yavapai Defendants' Response (Doc. 174), Wexford
Defendants' Joinder (Doc. 175), and Plaintiffs' Reply
(Doc. 176). For the following reasons, the Motion will be
granted.
I.
Background
On May
9, 2016, decedent Frances Wright was arrested for failing to
appear for a previously scheduled court hearing. (Doc. 13-1
at 4.) At the time of her arrest, Ms. Wright was at the home
of Andrea Neff. (Doc. 174 at 4.) Ms. Wright allegedly
ingested a large amount of drugs immediately prior to being
arrested, though it is unknown whether Ms. Neff has any
knowledge of such drug use. (Doc. 174 at 4-5.) Upon being
arrested and booked into the Yavapai County jail, Ms. Wright
was assigned to the jail's infirmary because she
self-reported on her medical intake form that she had taken
drugs at 10 a.m. that morning, was currently detoxing, and
had issues with withdrawing. (Doc. 13-1 at 3; Doc. 192, Ex.
G.)
In the
infirmary cell with Ms. Wright were Johanna Hoffman,
Katharine Davenport, Teddy Brake, and Elizabeth Blevins
(collectively, “Ms. Wright's cellmates”).
(Doc. 174 at 6.) Ms. Wright allegedly told Ms. Davenport, Ms.
Hoffman, and Ms. Brake that she had ingested a large amount
of drugs immediately before she was arrested. (Doc. 174 at
6.) It is not clear whether Ms. Blevins knew this
information. (Doc. 174 at 6.) During Ms. Wright's medical
deterioration over a period of days, Ms. Wright's
cellmates notified medical professionals and other jail
personnel about Ms. Wright's medical condition by using
the jail call button. (Doc. 174 at 6.) They did not inform
anyone of Ms. Wright's alleged statements regarding her
drug use prior to being arrested. (Doc. 174 at 6.)
On
August 8, 2017, this case was removed from Yavapai County
Superior Court to this Court. (Doc. 1.) On January 12, 2018,
Defendants filed a Notice of Nonparties at Fault, pursuant to
A.R.S. § 12-2506(B) and Ariz. R. Civ. P. 26(b)(5), which
named Ms. Wright, Ms. Neff, Ms. Wright's cellmates, and
“Ms. Wright's unidentified illegal drug dealers or
suppliers” as nonparties at fault. (Docs. 51, 52.) On
February 5, 2018, Plaintiffs filed a motion to strike
Defendants' Notice. (Doc. 56.) On February 20, 2018,
Defendants responded (Docs. 57, 58), and Plaintiffs replied
on February 27, 2018 (Doc. 62). On March 9, 2018, this Court
struck Ms. Wright as a nonparty and denied the motion without
prejudice as to the others because discovery had not yet been
completed. (Doc. 63.) On April 12, 2019, Plaintiffs filed
this motion (Doc. 172), which is fully briefed (Docs. 174,
175, 176).
II.
Discussion
Plaintiffs
argue that Defendants' Notice of Nonparties at Fault
should be struck because they have not shown how Ms. Neff and
Ms. Wright's cellmates owed Ms. Wright any duty. (Doc.
172 at 1-2.) Additionally, they argue that Defendants have
not attempted to identify Ms. Wright's drug dealers or
suppliers; thus, they should also be struck from the notice.
(Doc. 172 at 3-4.) Defendants concede that they do not have
enough evidence to support naming Ms. Wright's unknown
drug dealers as nonparties at fault in this case and, thus,
withdraw their designation. (Doc. 174 at 2.) However,
Defendants argue that an express duty of care or public
policy supports their designation of nonparties at fault for
Andrea Neff and Ms. Wright's cellmates. (Doc. 174 at 4.)
As to Ms. Neff, they argue that “if Neff knew Wright
had either ingested her drug stash or hidden it on her
person, then Neff had an obligation to reveal that
information to the arresting officers so Wright could be
appropriately treated.” (Doc. 174 at 4.) As to Ms.
Wright's cellmates, they argue that the cellmates each
“voluntarily undertook to render aid to Wright, or to
help secure aid for her, triggering a duty to her.”
(Doc. 174 at 6.) Further, they argue that because the
cellmates “intentionally withheld” the
information about Ms. Wright's alleged drug ingestion,
they left Ms. Wright “worse off” than before
their involvement. (Doc. 174 at 6.)
III.
Analysis
A.
Legal Standard
Arizona
Rule of Civil Procedure 26(b)(5), Arizona's nonparty at
fault notice disclosure, states that:
“[n]o later than 150 days after filing its answer, a
party must serve on all other parties--and should file with
the court--a notice disclosing any person: (A) not currently
or formerly named as a party in the action; and (B) whom the
party alleges was wholly or partly at fault under A.R.S.
§ 12-2506(B). The notice must disclose the identity and
location of the nonparty allegedly at fault, and the facts
supporting the allegation of fault.”
Ariz. R. Civ. P. 26(b)(5). “At its heart, Rule 26(b)(5)
is in service of a defendant's substantive right to have
the jury assess fault to a nonparty - regardless of whether
the plaintiff may hail that nonparty into court.”
State v. Mahoney in & for Cty. of Maricopa, No.
1 CA-SA 19-0067, 2019 WL 2128212, at *3 (Ariz.Ct.App. May 16,
2019). Mahoney clarified that the court in
Scottsdale Ins. Co. v. Cendejas, 220 Ariz. 281, 286
(Ct. App. 2009) did not rule that “a notice of nonparty
at fault that lacks the name and location of the nonparty
necessarily fails under Rule 26(b)(5) unless the defendant
can show it tried without success to find the
nonparty.” Id. Indeed, under A.R.S. Section
12-2506(A), “the issue is whether the defendant's
notice discloses ‘facts sufficient to establish the
existence of another tortfeasor, despite the inability
to further identify the tortfeasor.'” Id.,
at *2 (quoting Rosner v. Denim & Diamonds, Inc.,
188 Ariz. 431, 433 (Ct. App. 1996)). Therefore, “a
notice of nonparty at fault is not necessarily defective if
it lacks information that would enable the plaintiff to sue
the nonparty directly.” Id., at *3.
“Because
an allegation of comparative fault relating to nonparties is
an affirmative defense, the defendant must prove the nonparty
is actually at fault. As such, the defendant must offer
evidence that the nonparty owed a duty to the plaintiff, that
the duty was breached, and that the breach caused injury to
the plaintiff.” Hinshaw v. United States, 264
F.Supp.3d 1026, 1039 (D. Ariz. 2017); see Ontiveros v.
Borak, 667 P.2d 200, 204 (Ariz. 1983). Typically,
whether a duty exists is a question for the court as a matter
of law. Markowitz v. Arizona Parks Bd., 706 P.2d
364, 366 (Ariz. 1985). A duty requires that a person
“conform to a particular standard of conduct in order
to protect others against unreasonable risks of harm.”
Id.; see Gipson v. Kasey, 214 Ariz. 141,
143 (2007). A duty need not exist through a special or direct
relationship. Gipson, 214 Ariz. at ...