By New Times
By Connor Radnovich
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By Ray Stern
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McGillicuddy and Tobler began preparing for the trial, which had been set for December 2000. Their plan was simple: Not only would they sue Dietrich, but they would sue McDonald and his firm for malpractice and breach of fiduciary duty.
A jury would determine the percentage of fault for Dietrich and the percentage of fault for the state. The same jury would decide if McDonald and his firm were guilty of malpractice and/or breach of fiduciary duty and any damages.
Last August, McGillicuddy and Tobler added McDonald's firm to the lawsuit. They wanted everything relating to Brandon's death to be resolved in one trial.
McDonald and his firm asked the court to dismiss the claims against them or at least have the malpractice and breach of fiduciary duty claims split out. Their request was denied in December by a Superior Court judge.
So McDonald took it to the Arizona Court of Appeals.
"We talked to a lot of other attorneys about this," Tobler says. "Everybody figured there was no chance the court would listen to it, let alone overturn it."
McGillicuddy, Tobler and Daniel Treon, Brandon's father's attorney, cited several Arizona cases similar to theirs -- in which the courts had allowed the malpractice issue to be part of the main case. In other cases they cited, the malpractice was split out, but for different reasons than they faced with Rayann O'Bier.
McDonald's attorneys used many of those same cases to argue that a jury would have to find the state at fault first, before any malpractice suit could be brought.
Not only did the court take up the matter, the three-judge panel overturned the lower court ruling, saying McDonald's firm didn't have to take part in the first trial. Dietrich would be tried alone.
"Whether the state was negligent and whether its negligence contributed to plaintiffs' injuries has not been adjudicated," Judge James Sult wrote, adding that it was entirely possible a jury might find the state was not at fault. Then, he said, there would be no malpractice because McDonald's failure to go after the state wouldn't have mattered.
McGillicuddy and Tobler bumped the case up again, this time to the Arizona Supreme Court.
Meanwhile, Tobler had an investigator pull together more information on DeConcini, McDonald, Yetwin & Lacy.
In state records, they found the firm had a contract with the state stating the firm couldn't sue the state.
In addition, throughout the time McDonald represented Rayann O'Bier, his firm was actively pursuing additional work as the state's defense attorney, should it get sued. Roadway design, roadway striping, signing or traffic-control devices and roadway maintenance -- the same issues in the O'Bier case -- were just a few of the areas McDonald's firm told the state it could handle.
Rayann O'Bier says that revelation explained all of McDonald's seemingly unexplainable actions.
"When I heard that, everything made sense," she says. "He didn't go after the state because he couldn't. And he never once told me that."
McDonald and his attorneys argue that their work for the state was irrelevant to the O'Bier case. McDonald contends that his firm hadn't done any substantial work for the state since 1995 and that it is common for the state to grant waivers to attorneys to enter litigation against the state.
McDonald points out that his firm was granted a waiver for a case in 1997 and ended up with a $1 million judgment against the state.
McDonald says he didn't ask for a waiver in Rayann's case simply because he didn't think the state was at fault.
McGillicuddy and Tobler disagree that what the firm did is common.
"They had a serious conflict of interest -- period," McGillicuddy says. "They could not sue the state. They took the case anyway. They did not disclose the conflict. Rayann O'Bier was kept in the dark."
They also don't buy McDonald's excuse that he simply made a mistake, and didn't think about the state's potential liability until after the deadline for moving against the state had passed.
McDonald and his firm's prior contracts with the state became a major part of the O'Biers' Supreme Court appeal. In submitting copies of those records to the high court, McGillicuddy and Tobler called the failure to bring a claim against the state a "cold-blooded financial calculation."
In January, the Supreme Court, without comment, refused to accept jurisdiction in the case.
"We expected the court to follow years of Arizona precedent which would allow the suit to go forward," McGillicuddy says. "This is something quite different."
McGillicuddy and Tobler say the decision has created a bad precedent in Arizona law and puts Rayann O'Bier in an absurd position.
"Basically, she was given little chance of getting fair compensation," McGillicuddy says.
The decision makes it difficult, if not impossible, for the O'Biers to settle with Dietrich out of court. If they did, there would be no forum in which to raise the issue of the state's liability, which the court said was a prerequisite for any malpractice suit against McDonald's firm. In this scenario, there would be no finding the state at fault and so there would be no subsequent case against McDonald's firm.