Idaho Supreme Court justice Daniel T. Eismann at odds with three of his colleagues

jsowell@idahostatesman.comFebruary 16, 2014 

The Idaho Supreme Court delivered a legal opinion on Valentine’s Day , with one justice spreading a bouquet of black roses among his colleagues.

Justice Daniel T. Eismann accused several other high court panelists of ignoring the law and basing their 3-2 ruling on their desire to see one of the parties in the case, a medical damages claim from Pocatello, win.

“There is a saying that hard cases make bad law. That saying is incorrect,” Eismann wrote in his stinging, 34-page dissent. “It is the courts that make bad law in the process of deciding cases based solely upon whom they want to win or lose.”

Eismann has been a member of the Supreme Court since 2001 and served as chief justice from 2007 to 2011.

Justice Warren E. Jones, who concurred in the 21-page decision written by Chief Justice Roger S. Burdick, called Eismann’s remarks “scurrilous and unfounded personal attacks upon the integrity and motivations” of the majority justices in the case. He wrote that they had no place in a written legal opinion.

Jones, who has served on the Supreme Court since 2007 and whose law career began in 1968, said he was “saddened and offended by such unfounded, unsupported allegations. He said there was “not a shred of evidence” to support the allegations.

“I am sad that Justice Eismann’s dissenting opinion lowers itself to personal attacks more suited to a schoolyard argument among teenagers than to a professional legal discourse that should be expected in a judicial opinion,” Jones wrote in the opinion.

Former Idaho Attorney General Dave Leroy described the five Supreme Court justices as typically congenial. Leroy, who was elected in 1978 and served one term before being elected lieutenant governor, called Eismann’s remarks “atypically intemperate.”

“It’s unusual that any degree of personal animosity is seen in a decision from the Idaho Supreme Court.

The court’s ruling — which took more than a year to be issued — remanded the case back to Sixth District Bannock County Court. Plaintiff Judy Nield is seeking damages for infections she claims she received while being treated at Pocatello Care and Rehabilitation Center in 2007. Nield, 65 at the time she was treated, claims the health center’s negligence brought on an infection that ultimately led doctors to amputate her lower left leg and undergo surgery to repair her right hip implant.

Sixth District Judge Robert C. Naftz erred, the majority found, by requiring Nield to show that her infection could not have come from any other source than the care center. The court also found that Naftz improperly excluded an affidavit from a plaintiff’s doctor while admitting one from a defense doctor without considering its speculative nature, Burdick wrote.

“Distilled to its essence, in my opinion this case boils down to a dispute between two respected, licensed and competent physicians over how and where Mrs. Nield contracted the infectious diseases with which she is afflicted,” Jones wrote. “In my opinion, both physicians are qualified to state their opinions.”

Justice Joel D. Horton, who has served on the court since 2007, agreed with Eismann’s legal opinion in the case, but disagreed with him concerning their colleagues’ motives.

The legal dispute, Horton said, centered around whether the high court should step in to overrule a district judge on whether evidence could be admitted or not. In the past, the Supreme Court has given trial court judges “broad discretion,” Horton wrote.

“In my view, the majority’s error is not the product of a preference for one party over the other; rather, the majority’s error is a failure to observe the limitations upon an appellate court when reviewing a trial court’s discretionary decision,” Horton wrote in his dissent.

Neither Burdick nor the fifth member of the Supreme Court, Jim Jones, responded to Eismann’s remarks in the opinion. Stephen Kenyon, clerk for the Supreme Court, could not be reached Saturday evening.

John Sowell: 377-6423, Twitter: @IDS_Sowell

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