Samara v. Matar, 2/15/17, 2DCA/7
Plaintiff sued two dentists in the same practice for dental malpractice concerning an implant procedure and post-op care. The employee dentist filed for summary judgment based on the statute of limitations and the absence of evidence of causation. (Plaintiff’s expert declaration didn’t use the critical words to a “reasonable degree of medical certainty,” and was therefore ineffective to raise a triable issue of fact on causation.) The trial court granted the motion on both grounds and plaintiff filed its first appeal. The first appellate court upheld the trial court’s ruling based solely on the statute of limitations, and did not reach the issue of causation. After remand, the supervising dentist filed his own summary judgment, arguing that the holding in the first appeal also established issue preclusion as to causation. The trial court agreed and granted supervising dentist’s motion. Held: Reversed.
Because dentist employer was in privity with dentist employee, claim preclusion could potentially apply to block plaintiff’s claim against supervising dentist. Claim preclusion arises if a second suit involves (1) the same cause of action (2) between the same parties [or those in privity with them] (3) after a final judgment on the merits in the first suit. As long as an appellate court affirms at least one ground on the merits, any other claim that was or could have been brought would be subsumed in the judgment, which operates as a merger or bar to any subsequent lawsuit based on the same primary right, whether or not the appellate court addressed the merits of that cause of action on appeal. However, claim preclusion could not apply in this case because the first appellate decision was based on the statute of limitations, which is a procedural matter and not a decision on the merits.
Issue preclusion depends on various factors including whether the issue was necessarily decided in a prior matter. Therefore, the same affirmance that can lead to claim preclusion will result in issue preclusion only for issues actually decided by the appellate court. The court cited a long line of authorities in support of this view, which is echoed by the Restatement Second of Judgments. A different rule would put pressure on appellate courts to discuss every issue raised in the judgment below, creating the judicial inefficiency that issue preclusion was intended to avoid in the first place.
(In case you’re wondering, the supervising dentist probably didn’t make a statute of limitations argument because he had rendered post-op care that apparently was within the statute of limitations.)
(In case you’re wondering, the supervising dentist probably didn’t make a statute of limitations argument because he had rendered post-op care that apparently was within the statute of limitations.)