Lewis v. Swenson, 1

• Decision Date: 03 June 1980
• Docket Number: CA-CIV,No. 1,1
• Citation: 126 Ariz. 561,617 P.2d 69
• Parties: Rebecca LEWIS, personal representative of the Estate of Helen Jans, deceased, Plaintiff-Appellant, v. Alvin L. SWENSON, M. D., and John H. Seidel, Defendants-Appellees. 4586.
• Court: Arizona Court of Appeals

Page 69

617 P.2d 69

126 Ariz. 561

Rebecca LEWIS, personal representative of the Estate of Helen Jans, deceased, Plaintiff-Appellant, v. Alvin L. SWENSON, M. D., and John H. Seidel, Defendants-Appellees.

No. 1 CA-CIV 4586.

Court of Appeals of Arizona, Division 1, Department B.

June 3, 1980.

Rehearing Denied July 24, 1980.

Review Denied Sept. 11, 1980.

Norman Herring, Phoenix, for plaintiff-appellant.

Snell & Wilmer by John J. Bouma, Kenneth D. Nyman, Phoenix, for defendant-appellee Swenson.

Monbleau, Vermeire & Turley by Albert R. Vermeire, Phoenix, for defendant-appellee Seidel.

OPINION

O'CONNOR, Judge.

The issues involved in this appeal are whether a cause of action may be maintained by a party to a lawsuit (1) against an attorney for the adverse party for negligently failing to instruct a witness to avoid disclosing prejudicial information to the jury in response to the attorney's questions, and (2) against a witness for intentionally or recklessly disclosing prejudicial information to the jury in a non-responsive answer to an attorney's question. We find that no such causes of action may be maintained under the circumstances of this case.

Helen Jans, now deceased, was the plaintiff in a medical malpractice action against M. L. Goldsmith, M.D. During the course of the jury trial, appellee, Alvin L. Swenson M.D., was called by appellee, John H. Seidel, the defendant's attorney, as an expert witness for the defense. In response to a question by appellee Seidel on direct examination, appellee Swenson testified, in substance, that he had stopped performing surgery several years previously because of the high cost of medical malpractice insurance premiums although he remained physically and mentally competent to practice surgery. The plaintiff's attorney promptly moved for a mistrial which was granted. Thereafter, Helen Jans died and appellant, Rebecca Lewis, was appointed as the personal representative of her estate.

This action was filed by the personal representative to recover as damages the amount spent in preparation for the medical malpractice trial, and for trial, and for the amount of damages Helen Jans had claimed against Dr. Goldsmith. Appellant's complaint alleged that appellee Seidel owed an affirmative duty to Helen Jans and to the court to prevent his expert witness from mentioning high premiums for malpractice insurance in the presence of the jury. The complaint also alleged that appellee Swenson was an experienced expert witness, who knew that mention of high premiums for malpractice insurance would prejudice the plaintiff's case, and that he had a duty to refrain from mentioning it. Appellant alleged that the breach by appellees of the duty was a willful and intentional attempt to interfere with the judicial process and was a violation of Helen Jans' civil and constitutional right to a fair trial. Appellees filed motions to dismiss the complaint for failure to state a claim upon which relief could be granted. The trial court granted the motions and entered a judgment for appellees. Appellant moved to set aside the judgment and to amend the complaint. Appellant's motions were denied and she appeals from the order and judgment dismissing the complaint and from the order denying leave to amend the complaint.

Appellant cites article 2, § 23 of the Arizona Constitution which provides that "(t)he right of trial by jury shall remain inviolate." Appellant also cites article 18, § 6 which provides that "(t)he right of action to recover damages for injuries shall never be abrogated, and the amount recovered shall not be subject to any statutory limitation." Appellant contends that appellees have violated Helen Jans' rights under the cited sections giving rise to a cause of action on behalf of her estate. Appellant admits she can cite no case as authority for her position and we have found none.

Article 18, § 6 of the Arizona Constitution has been applied to restrain legislative restrictions or limitations of recognized causes of action. It has not been applied to mandate creation of a new civil cause of action for damages where none existed previously. See, e. g., Industrial Commission v. Frohmiller, 60 Ariz. 464, 140 P.2d 219 (1943); Rail N Ranch Corp. v. State, 7 Ariz.App. 558, 441 P.2d 786 (1968); Harrington v. Flanders, 2 Ariz.App. 265, 407 P.2d 946 (1965). In our opinion neither article 18, § 6 nor article 2, § 23 of the Arizona Constitution furnishes the basis for a civil cause of action for damages by an adverse party against attorneys or witnesses whose actions during the course of a jury trial result in a judicial declaration of mistrial.

As stated in W. Prosser, Law of Torts § 1, at 4 (4th ed. 1971):

There are many interferences with the plaintiff's interests . . . for which the law will give no remedy, although the defendant has been clearly at fault.

The Arizona court observed in Fickett v. Superior Court of Pima County, 27 Ariz.App. 793, 794-95, 558 P.2d 988, 989-90 (1976), that:

The general rule for many years has been that an attorney could not be liable to one other than his client in an action arising out of his professional duties, in the absence of fraud or collusion. 7 Am.Jur.2d, Attorneys at Law, § 167. . . .

(But w)e are of the opinion that the better view is that the determination of whether, in a specific case, the attorney will be held liable to a third person not in privity is a matter of policy and involves the balancing of various factors, among which are the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injuries suffered, the moral blame attached to the defendant's conduct, and the policy of preventing future harm. (citations omitted)

Other jurisdictions applying a similar balancing test have held that:

An attorney may be liable for damage caused by his negligence to a person intended to be benefited by his performance irrespective of any lack of privity of contract between the attorney and the party to be benefited. (citations omitted) The liability sounds in tort.

Norton v. Hines, 49 Cal.App.3d 917, 921, 123 Cal.Rptr. 237, 240 (1975) (emphasis supplied). See also Weaver v. Superior Court, County of Orange, 95 Cal.App.3d 166, 156 Cal.Rptr. 745 (1979); Donald v. Garry, 19 Cal.App.3d 769, 97 Cal.Rptr. 191 (1971); Berlin v. Nathan, 64 Ill.App.3d 940, 381 N.E.2d 1367 (1978).

However, as the court also stated in Norton v. Hines, 49 Cal.App.3d at 921, 123 Cal.Rptr. at 240:

Clearly, an adverse party is not an intended beneficiary of the adverse counsel's client. If a cause of action exists against attorneys . . . , it must be pleaded as an action for malicious prosecution. We see no reason to extend applicable law now found in cases involving attorneys and third parties when there is sound and recognized public policy for limiting the cause of action to malicious prosecution.

In applying the Norton holding, the California Court of Appeals in Weaver v. Superior Court, County of Orange, 95 Cal.App.3d at 179, 156 Cal.Rptr. at 751-52 stated:

California courts, in refusing to impose a duty of care owed by an attorney to an adverse third party, have recognized that "the burden of imposing liability upon a defendant" attorney outweighs "the consequences to the community if liability . . . is withheld." (Citation omitted) In reaching this result, the decisions acknowledge that to impose such a duty would place an attorney in a position where his own interests would conflict directly with his client's interests. Accordingly, so the rationale runs, a person's right to effective assistance of counsel would be denigrated, simultaneously impairing that person's right of free access to the courts.

Similar reasons of public policy have caused courts to declare that there is an absolute privilege of attorneys and witnesses to state anything at trial which relates to the matter at issue. Thus, in Lyddon v. Shaw, 56 Ill.App.3d 815, 822, 372 N.E.2d 685, 690 (1978), the court observed:

(There is an) "obvious public interest" in affording every citizen "the utmost freedom of access to the courts" (which has) inspired the rule in the law of defamation that anything said by litigants or counsel relating to the matter at issue is privileged, even though this privilege acts to deprive parties, in most cases, of any civil remedy for defamatory statements made in the course of such judicial proceedings.

The comment to Restatement (Second) of Torts § 584, at 243, explains the reasons behind the "absolute privileges" in the law of defamation as:

based chiefly upon a recognition of the necessity that certain persons, because of their special position or status, should be as free as possible from fear that their actions in that position might have an adverse effect upon their own personal interests. To accomplish this, it is necessary for them to be protected not only from civil liability but also from the danger of even an unsuccessful civil action. To this end, it is necessary that the propriety of their conduct not be inquired into indirectly by either court or jury in civil proceedings brought against them for misconduct in their position. Therefore, the privilege, or immunity, is absolute and the protection that it affords is complete. It is not conditioned upon the honest and reasonable belief that the defamatory matter is true or upon the absence of ill will on the part of the actor.

Section 588 of the Restatement extends the same privilege to witnesses at trials. Comment a to § 588 notes that:

it is necessary . . . that a full disclosure not be hampered by fear of private suits for defamation . . . . The witness is subject to the control of the trial judge in the exercise of the privilege. For abuse of it, he may be subject to criminal prosecution for perjury and to punishment for...