A California appellate court held that a party waives a claim by not raising it at arbitration, and rejected an allegation that the "repeat player effect" made the arbitrator biased.

In Moreno v. Kaiser Foundation Health Plan, Inc., No. B196789, 2008 WL 2222947 (Cal. Ct. App. May 30, 2008), Moreno sued Kaiser for medical malpractice. The parties agreed to go to arbitration, so the trial court ordered them to binding arbitration. The arbitrator dismissed all but one of Moreno's claims, and issued an award in favor of Kaiser on the final claim.

Moreno moved to vacate the award on several grounds. At oral argument, Moreno argued, for the first time, that Kaiser violated disclosure requirements of the Health and Safety Code. The Court held that Moreno waived this claim by failing to raise it at the arbitration proceedings and in the written motion to vacate. The Court noted that Moreno's attorney stipulated to arbitration, and that Moreno ratified the attorney's stipulation by participating in arbitration and failing to repudiate the attorney's action.

Moreno also argued that the arbitrator was biased due to the "repeat player effect," which Moreno defined as the arbitrator's incentive to reach a result favorable to Kaiser, which participates in numerous arbitrations, so that the arbitrator can obtain future arbitration assignments. Moreno cited Mercuro v. Superior Court, 96 Cal. App. 4th 167 (Cal Ct. App. 2002) in support of his argument.

The Court rejected Moreno's allegation that the arbitrator was biased due to the repeat player effect. The Court noted that Moreno produced no evidence that the arbitrator had previously served in arbitrations to which Kaiser was a party and failed to disclose those arbitrations. In addition, the Court observed that in Mercuro the "repeat player" was the employer, not the arbitrator. Furthermore, the Mercuro court declared itself "not prepared to say without more evidence the 'repeat player effect' is enough to render an arbitration agreement unconscionable."

Regarding the repeat player allegation, the Court held that "[g]iven the lack of evidence of [the arbitrator's] prior, pending, or future service as an arbitrator in matters in which Kaiser was or would be a party, plaintiffs have not established it as a ground . . . for vacating the arbitration award."

Moreno also alleged arbitrator bias because the arbitrator failed to remember an expert witness, ruled to exclude certain evidence toward impeachment of Kaiser's expert, and because of grand jury testimony regarding Kaiser in an unrelated case. The Court summarily rejected each of those allegations, as well.