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Lyphomed Inc. v. Superior Court3/19/1992
We accepted jurisdiction of this special action because it involves a question of the interpretation of a relatively new statute abolishing joint and several liability, and of how the rules of civil procedure relating to that statute are to be applied. When we accepted jurisdiction, we granted the relief the petitioner requested and stated that an opinion would follow. This is that opinion. We conclude that each defendant who claims that other persons or entities who have not been joined in the action are responsible for the plaintiff's injury must file a notice of nonparty at fault
pursuant to Rule 26(b)(5), Arizona Rules of Civil Procedure. A defendant is not relieved of the need to file such a notice simply because another defendant in the case has done so, even though the latter names all of the nonparties at fault the defendant who has not filed a notice would name. Although the petitioner did not comply with the rule as we construe it, we grant relief because we find that the trial court abused its discretion in finding that the petitioner was equitably estopped to give the notice late.
FACTS AND PROCEDURAL HISTORY
The case arises out of the death of a woman allegedly caused by an overdose of medication administered to her when she was a patient at Winslow Memorial Hospital. In May of 1990, the woman's survivors sued the hospital and the petitioner, LyphoMed, Inc., the manufacturer of the medication. The basis of the claim against LyphoMed is that it mislabeled the medication.
The statute abolishing joint and several liability, Ariz.Rev.Stat.Ann. ("A.R.S.") ยง 12-2506 (1987), and Rules 26(b)(5) and 26(e) of the Arizona Rules of Civil Procedure bear on what happened thereafter. The statute provides:
Joint and several liability abolished: exceptions; apportionment of degrees of fault; definitions
A. In an action for personal injury , property damage or wrongful death, the liability of each defendant for damages is several only and is not joint, except as otherwise provided in this section. Each defendant is liable only for the amount of damages allocated to that defendant in direct proportion to that defendant's percentage of fault, and a separate judgment shall be entered against the defendant for that amount. To determine the amount of judgment to be entered against each defendant, the trier of fact shall multiply the total amount of damages recoverable by the plaintiff by the percentage of each defendant's fault, and that amount is the maximum recoverable against the defendant.
B. In assessing percentages of fault the trier of fact shall consider the fault of all persons who contributed to the alleged injury , death or damage to property, regardless of whether the person was, or could have been, named as a party to the suit. Negligence or fault of a nonparty may be considered if the plaintiff entered into a settlement agreement with the nonparty or if the defending party gives notice before trial, in accordance with requirements established by court rule, that a nonparty was wholly or partially at fault. Assessments of percentages of fault for nonparties are used only as a vehicle for accurately determining the fault of the named parties. Assessment of fault against nonparties does not subject any nonparty to liability in this or any other action, and it may not be introduced as evidence of liability in any action.
Rule 26(b)(5) of the Arizona Rules of Civil Procedure was adopted to implement the statute. It provides:
(5) Non-Party at Fault. Any party wh
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