Sandretto v. Payson Healthcare Management, Inc. , 234 Ariz. 351 ( 2014 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
LORI SANDRETTO, A SINGLE WOMAN,
Plaintiff/Appellee,
v.
PAYSON HEALTHCARE MANAGEMENT, INC. an Arizona corporation,
dba PAYSON REGIONAL BONE & JOINT,
Defendant/Appellant.
No. 2 CA-CV 2013-0044
Filed March 11, 2014
Appeal from the Superior Court in Gila County
No. CV2010-00115
The Honorable Gary V. Scales, Judge
AFFIRMED
COUNSEL
Lloyd & Robinson, PLLC, Payson
By Arthur E. Lloyd and Doris Robinson Wait
and
McGovern Law Offices, Phoenix
By Thomas P. McGovern
SANDRETTO v. PAYSON HEALTHCARE MANAGEMENT, INC.
Opinion of the Court
and
Law Office of Scott E. Boehm, P.C., Phoenix
By Scott E. Boehm
Counsel for Plaintiff/Appellee
Law Offices of Don Stevens, P.C., Phoenix
By Don Stevens
Counsel for Defendant/Appellant
OPINION
Judge Miller authored the opinion of the Court, in which Presiding
Judge Vásquez and Chief Judge Howard concurred.
M I L L E R, Judge:
¶1 Payson Healthcare Management (PHM) appeals from
the trial court’s denial of its motion for new trial after a medical
malpractice case ended in judgment for the appellee, Lori Sandretto.
PHM contends the court erred in denying the motion, which
included claims the court made erroneous evidentiary rulings,
improperly denied a continuance request, and improperly approved
a co-defendant’s settlement agreement. PHM also argues the court
erred in finding the jury verdict was supported by substantial
evidence. Finding no error, we affirm.
Factual and Procedural Background
¶2 We view the evidence in the light most favorable to
upholding the jury’s verdict. Hutcherson v. City of Phoenix, 192 Ariz.
51, ¶ 13, 961 P.2d 449, 451 (1998). In April 2008, Sandretto slipped
on a wet floor and injured her right knee, which eventually required
outpatient surgery by a non-party physician to repair a torn
meniscus. Sandretto’s pain continued, which prompted her to see
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Dr. Charles Calkins, an orthopedic surgeon with thirty-five years of
experience. Calkins was employed by PHM. He found that the
meniscus was still torn and performed a second surgery on
September 5, 2008. Calkins removed fluid from the knee during
surgery for testing, which was subsequently negative for infection.
¶3 Sandretto’s condition initially improved, but within a
week her knee became swollen, red, and painful. She was examined
by James Morphis, a physician’s assistant (PA) for Calkins. Morphis
prescribed antibiotics for a skin infection. On September 14, 2008,
Sandretto went to the emergency room. Calkins came to the
hospital, diagnosed her with a common skin infection and
prescribed a different antibiotic. Five days later, Sandretto called
Calkins’s office to say her knee still hurt and was now draining
fluid. Morphis told a staff member to tell Sandretto to keep taking
antibiotics.
¶4 Sandretto saw Morphis again on September 24, 2008,
and still believed she had a skin infection. On October 10, 2008,
Morphis aspirated Sandretto’s knee and had the fluid tested. Three
days later, the results came back positive for methicillin-resistant
Staphylococcus aureus (MRSA).1 Calkins did not recall being told
about the results, but records showed he wrote a prescription for
intravenous antibiotics. Sandretto eventually saw Calkins on
October 22, 2008, and he performed a surgery on October 24, 2008, to
wash out the MRSA. Sandretto required two more “washout”
surgeries, and eventually needed a knee replacement. Her knee
pain continued despite the knee replacement, and her treating
physician diagnosed her with Complex Regional Pain Syndrome
(CRPS), a chronic pain condition caused by a nerve injury.
¶5 In 2010, Sandretto sued Calkins and PHM for medical
malpractice, alleging Calkins did not act quickly enough to diagnose
and treat the MRSA infection, thus necessitating aggressive medical
1MRSA is an infection that destroys tissue and, when found in
a joint, requires high doses of antibiotics as well as surgery to wash
it out.
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Opinion of the Court
treatments that resulted in permanent impairment. Calkins and
Sandretto settled days before trial. After an eleven-day trial, the jury
returned a verdict in favor of Sandretto for $7,275,160. Having filed
an offer of judgment before trial, Sandretto sought and was granted
sanctions pursuant to Rule 68, Ariz. R. Civ. P.
¶6 The trial court entered judgment on October 3, 2012,
and PHM subsequently moved for a new trial. After a hearing, the
court denied the motion. This timely appeal followed.
Discussion
Scope and standard of review on appeal
¶7 We first note that PHM’s notice of appeal only seeks
review “from the Order of the Gila County Superior Court, made
and entered on the 19th day of February, 2013, denying the Motion
for New Trial filed by [PHM].” Further, PHM properly invokes this
court’s jurisdiction pursuant to A.R.S. § 12-2101(A)(5)(a). The notice
does not appeal from the final judgment as permitted by A.R.S.
§ 12-2101(A)(1). In its briefs, however, PHM raises arguments not
made in its motion for a new trial. Because PHM did not appeal
separately the underlying judgment, we must limit our review to
issues raised in the Rule 59, Ariz. R. Civ. P., motion.2 See Wendling v.
Sw. Sav. and Loan Ass’n, 143 Ariz. 599, 601, 694 P.2d 1213, 1215 (App.
1984); Matcha v. Winn, 131 Ariz. 115, 116, 638 P.2d 1361, 1362 (App.
1981) (“[I]n reviewing the denial of a motion for new trial, this court
may not go beyond the matters assigned as error in the motion.”).
¶8 Generally, we review a trial court’s decision to deny a
motion for a new trial for an abuse of discretion, and the burden is
on the party seeking to overturn the trial court’s judgment to show
such an abuse. See Pullen v. Pullen, 223 Ariz. 293, ¶ 10, 222 P.3d 909,
912 (App. 2009). Similarly, we review rulings on admissibility of
testimony, motions to continue, and petitions to approve settlement
for an abuse of discretion, as discussed further below. See Pipher v.
2The issues excluded on appeal include the sanctions imposed
pursuant to Rule 68, Ariz. R. Civ. P.
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Loo, 221 Ariz. 399, ¶ 6, 212 P.3d 91, 93 (App. 2009) (testimony);
Alberta Sec. Comm’n v. Ryckman, 200 Ariz. 540, ¶ 11, 30 P.3d 121, 124
(App. 2001) (motions to continue); Barmat v. John & Jane Doe Partners
A-D, 165 Ariz. 205, 210, 797 P.2d 1223, 1228 (App. 1990) (settlement
agreements). A trial court abuses its discretion if it commits an error
of law reaching a discretionary conclusion; therefore, we review de
novo questions of law that were included in the motion for new
trial. See Twin City Fire Ins. Co. v. Burke, 204 Ariz. 251, ¶ 10, 63 P.3d
282, 284 (2003).
Admissibility of expert medical testimony
¶9 PHM argues the testimony of Dr. Michael Ferrante, one
of Sandretto’s expert witnesses, should have been precluded
pursuant to Rule 702, Ariz. R. Evid. Ferrante opined that Sandretto
suffered from CRPS caused by one or more of the surgical
procedures required to clean out the MRSA infection and to replace
Sandretto’s knee. His opinion complemented the testimony of
Sandretto’s MRSA expert, Dr. Talan, who testified to the deleterious
effects of MRSA and its treatment, unnecessary damage caused by
the late diagnosis, and his opinion about the date of infection. Taken
together, the testimony of Ferrante and Talan permitted the jury to
construct a cause-and-effect timeline regarding MRSA, multiple
surgeries, and CRPS.
¶10 PHM contends Ferrante’s diagnosis of CRPS and his
causation opinion lacked “reliable or scientific[]” grounds. 3 This
argument requires us to examine the gate-keeping function of
Rule 702 as it pertains to the opinions of an examining physician.
3PHM also appears to argue the trial court made a procedural
error when it did not make a record of its inquiry or specific findings
of fact to support its ruling under Rule 702, Ariz. R. Evid. PHM did
not contend in its motion for a new trial that the court erred
procedurally, noting only that “the Court recognized that it was
required to be the gatekeeper,” pursuant to Rule 702. We will not
address this new argument on appeal from the denial of the motion
for a new trial. See Matcha, 131 Ariz. at 116, 638 P.2d at 1362.
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¶11 We review the trial court’s decision to admit or exclude
expert testimony for an abuse of discretion. See Pipher, 221 Ariz. 399,
¶ 6, 212 P.3d at 93. The admissibility of expert testimony is
governed by Rule 702, which was amended effective January 1, 2012
to adopt the language of Rule 702, Fed. R. Evid., and to reflect the
principles set forth in Daubert v. Merrill Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993). See State v. Salazar-Mercado, 232 Ariz. 256, ¶ 5, 304
P.3d 543, 546 (App. 2013); see also Ariz. R. Evid. 702 cmt. We
construe the amended Arizona rule in accordance with its federal
counterpart. Ariz. State Hospital/Ariz. Cmty. Protection & Treatment
Ctr. v. Klein, 231 Ariz. 467, ¶ 26, 296 P.3d 1003, 1009 (App. 2013); see
also Ariz. R. Evid. Prefatory Cmt. to 2012 Amendments (“Where the
language of an Arizona rule parallels that of a federal rule, federal
court decisions interpreting the federal rule are persuasive but not
binding . . . .”).
¶12 Rule 702 as amended sets out four requirements that
must be met before an expert witness may testify in the form of an
opinion or otherwise, and states in its entirety:
A witness who is qualified as an expert by
knowledge, skill, experience, training, or
education may testify in the form of an
opinion or otherwise if:
(a) the expert’s scientific, technical, or other
specialized knowledge will help the trier of
fact to understand the evidence or to
determine a fact in issue;
(b) the testimony is based on sufficient facts
or data;
(c) the testimony is the product of reliable
principles and methods; and
(d) the expert has reliably applied the
principles and methods to the facts of the
case.
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Ariz. R. Evid. 702. Daubert offers additional “non-exclusive factors
for determining whether scientific evidence is admissible,”
including empirical testing, peer review, error rate, the existence of
standards and controls, and the degree to which the theory and
technique is generally accepted by a relevant scientific community.
Ariz. State Hosp., 231 Ariz. 467, ¶ 27, 296 P.3d at 1009; see also Daubert,
509 U.S. at 593-94.
¶13 Application of the Daubert factors, however, particularly
to medical testimony like that of Ferrante, requires flexibility. See
Sullivan v. U.S. Dept. of Navy, 365 F.3d 827, 834 (9th Cir. 2004) (when
medical testimony in malpractice case “based on specialized as
distinguished from scientific knowledge, the Daubert factors are not
intended to be exhaustive or unduly restrictive”); see also Huss v.
Gayden, 571 F.3d 442, 455 (5th Cir. 2009) (Daubert standards flexible).
Although grounded in science, medicine is a profession that requires
physicians to rely on their previous experiences and sound
judgment. Cf. Primiano v. Cook, 598 F.3d 558, 565 (9th Cir. 2010)
(finding experience-based physician testimony admissible in
products liability action). Moreover, federal appellate courts have
cautioned against the exclusion of medical testimony based on
factors more relevant in a product liability case. The Sixth Circuit
explained:
Daubert’s role of “ensur[ing] that the
courtroom door remains closed to junk
science” . . . is not served by excluding
[physician] testimony . . . that is supported
by extensive relevant experience. Such
exclusion is rarely justified in cases
involving medical experts as opposed to
supposed experts in the area of product
liability.
Dickenson v. Cardiac & Thoracic Surgery of E. Tenn., 388 F.3d 976, 982
(6th Cir. 2004), quoting Amorgianos v. Nat’l R.R. Passenger Corp., 303
F.3d 256, 267 (2d Cir. 2002).
¶14 Arizona’s adoption of the language of the federal rule
included a caution that the amendment “is not intended to . . .
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preclude the testimony of experience-based experts.” Ariz. R. Evid.
702 cmt.; see also McMurtry v. Weatherford Hotel, Inc., 231 Ariz. 244,
¶ 17, 293 P.3d 520, 527 (App. 2013). The advisory committee note to
Federal Rule 702—from which Arizona’s 2012 comment is derived—
similarly explains, “Nothing in this amendment is intended to
suggest that experience alone—or experience in conjunction with
other knowledge, skill, training or education—may not provide a
sufficient foundation for expert testimony.”
¶15 Although the application of new Rule 702 to expert
medical opinions requires flexibility, it has long been true that the
proponent has the burden of showing the expert’s qualifications are
relevant to particular issues in the case. See, e.g., Gaston v. Hunter,
121 Ariz. 33, 51, 588 P.2d 326, 344 (App. 1978) (witness must be
“competent to give an expert opinion on the precise issue about
which he is asked to testify”). The qualification requirement
continues under amended Rule 702. See, e.g., State v. Delgado, 232
Ariz. 182, ¶ 12, 303 P.3d 76, 80-81 (App. 2013) (medical doctor with
extensive experience in emergency medicine had expertise to opine
whether victim’s injuries were consistent with strangulation).
Ferrante testified in detail about his background, as well as how and
why he had diagnosed Sandretto with CRPS. He is the chief of pain
medicine at the University of California, Los Angeles Medical School
and a professor of internal medicine and anesthesiology. Ferrante
has extensive experience with CRPS, a condition recognized by the
American Medical Association and taught at medical schools.
¶16 While implicitly acknowledging Ferrante might be a
national expert on CRPS, PHM argues the trial court abused its
discretion by failing to evaluate the scientific basis for Ferrante’s
opinions regarding CRPS, as well as by admitting his causation
opinion. PHM also contends the court should have conducted a
Daubert hearing before trial and precluded the testimony.
¶17 As a procedural matter, we first observe a trial court has
great discretion whether to set a pretrial hearing to evaluate
proposed expert testimony. Ariz. State Hosp., 231 Ariz. 467, ¶ 31, 296
P.3d at 1010. The court may properly decide to hear the evidence
and objections during the trial. Id. Here, PHM filed a pretrial brief
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that broadly questioned whether opinions about CRPS could be
stated to a reasonable degree of medical probability. It requested
the court determine which CRPS testimony would be offered and
whether it would be admissible under Rule 702. PHM did not
appear to request a separate hearing. But assuming arguendo it had,
in the context of a general challenge under Rule 702, we have no
reason to conclude the court abused its discretion to defer hearing
the objection until trial.
¶18 PHM’s substantive challenge to the scientific basis and
reliability of Ferrante’s causation opinion was based on certain facts4
to demonstrate generally, and specific to Sandretto’s condition, that
the trial court should have precluded the causation opinion
pursuant to Rule 702. Whether the trial court abused its discretion
in admitting the causation opinion requires us to examine the
grounds for it.
¶19 To diagnose Sandretto, Ferrante had her fill out the
“McGill Pain Questionnaire,” from which he concluded she had
nerve-related pain. He also performed a neurological exam which
showed increased sensitivity and a bone scan which “li[t] up” in the
affected area. Ferrante concluded she suffered from CRPS Type I,
with “Type I” indicating that he could not identify which specific
nerve had been injured.5
¶20 In his CRPS causation opinion, Ferrante explained the
“unifying factor” was MRSA because the surgeries that followed the
diagnosis would not have been required without the MRSA
4 PHM’s proffered facts, disputed by Sandretto, can be
summarized as follows: CRPS is a not-well-understood pain
syndrome caused by traumatic damage to one or more nerves;
further, it is not caused by infection and can change over time.
5PHM also appears to argue that Ferrante had no basis for his
diagnosis because he could not identify which nerve was damaged.
It concedes, however, that CRPS Type I is a valid diagnosis when a
specific nerve cannot be identified.
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infection. Ferrante further testified that CRPS is caused by trauma;
surgery is a traumatic injury; therefore, “more likely than not,” it
was one of the surgeries after the MRSA diagnosis that caused the
CRPS. He further ruled out Calkins’s surgery to repair the meniscus
because Sandretto “got better for a few days then the bad spiral
began.” Ferrante did not link the CRPS to any negligence by PHM.
That connection was made through Talan’s testimony that the more
time a MRSA infection has to progress before the first wash-out
surgery, the more damage is done to the joint, and “probably the
more surgeries you’re going to need to get it cleaned out
completely.”6
¶21 PHM argues Ferrante’s causation opinion was “medical
mumbo-jumbo” and “rank speculation” that “Rule 702 was
designed to prevent.” It relies on Black v. Food Lion, Inc., 171 F.3d
308, 314 (5th Cir. 1999), for the proposition that a pain syndrome
without a clear genesis requires “critical scientific predicates” rather
than a “general methodology.” In Black, the plaintiff’s medical
expert rendered her causation opinion based on the absence of
symptoms in plaintiff’s pre-accident medical history and a lack of
6PHM notes it is undisputed the standard of care requires a
washout procedure once MRSA is detected and contends this and
other facts are “fatal to [Sandretto’s] causation theory,” because
Ferrante could not pinpoint exactly which surgery caused the CRPS.
To the extent PHM is arguing the trial court should have granted its
motion for new trial on this basis, the argument is waived because it
is not clearly raised and argued on appeal. See Lohmeier v. Hammer,
214 Ariz. 57, n.5, 148 P.3d 101, 108 n.5 (App. 2006). Further, on
review of the denial of a motion for new trial we will not reweigh
the evidence “‘merely because the jury could have drawn different
inferences or conclusions or because [we] feel that other results are
more reasonable.’” Hutcherson v. City of Phoenix, 192 Ariz. 51, ¶ 27,
961 P.2d 449, 454 (1998), quoting Tennant v. Peoria & Pekin Union Ry.
Co., 321 U.S. 29, 35 (1944). Finally, PHM does not challenge the
sufficiency of the evidence, only its admissibility.
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intervening events to account for her fibromyalgia.7 Id. at 313. The
Fifth Circuit found the trial court failed to apply Daubert criteria,
which would have shown no support by researchers or the medical
literature that trauma causes fibromyalgia. Id. at 312-14. The
appellate court quoted at length recent medical articles and a
“Consensus Report” evaluating experimental data on trauma and
fibromyalgia. Id. The scientific literature showed no causal
connection, which allowed the court to conclude the expert’s theory
of causation had not been “verified or generally accepted” and had
“no known potential rate of error.” Id. at 313. Even the plaintiff’s
expert conceded she could not identify a cause, but instead “found
an event that contributed to the development of the symptom.” Id.
¶22 PHM’s reliance on Black is misplaced for a number of
reasons. First, one disease, such as fibromyalgia, is not the
functional equivalent of another. More important, PHM did not
present to the trial court in its Rule 702 motion scientific literature
undermining the reliability or application of Ferrante’s causation
opinion. Instead, PHM relied on two medical information sheets
from the internet.8 Both documents included disclaimers that the
information could not be used for the diagnosis or treatment of any
medical condition. The information sheets were unsigned and
without endorsement by a recognized body; moreover, there was no
suggestion that the information represented a consensus in the pain
management field.
¶23 When examined about the information sheets, Ferrante
testified that the molecular mechanism of CRPS is not clearly
understood, but the medical cause, traumatic injury, was well
documented. When a properly qualified physician with expertise in
7 Although
PHM initially argued fibromyalgia was “another
name for CRPS,” it acknowledged the error in its Reply Brief, but
contended an analogy remains because fibromyalgia “is another
syndrome about which medical science knows very little.”
8 See,
e.g., www.ninds.nih.gov/disorders/reflex_sympathetic_
dystrophy/reflex_sympathetic_dystrophy.htm (last visited March 4,
2014).
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a recognized medical condition opines on the cause of the condition
in a particular patient based on his examination and testing, such
testimony is admissible unless the opponent proffers scientific
evidence challenging the reliability of the underlying principles and
application. See Ariz. R. Evid. 702 cmt.; Huss, 571 F.3d at 455.
Reliance on internet-based general medical information with
disclaimers against using the information for medical diagnosis and
treatment does not satisfy this requirement.
¶24 Finally, PHM’s challenge of Ferrante’s testimony based
on isolated portions of his testimony and the testimony of PHM’s
expert does not present a Rule 702 argument; rather, it is a jury
argument going to the weight and credibility of the testimony. See
Ariz. R. Evid. 702 cmt. (“Where there is contradictory, but reliable,
expert testimony, it is the province of the jury to determine the
weight and credibility of the testimony.”); see also Pipher, 221 Ariz.
399, ¶ 17, 212 P.3d at 96. “No rule is better established than that the
credibility of the witnesses and the weight and value to be given to
their testimony are questions exclusively for the jury.” State v.
Clemons, 110 Ariz. 555, 556-57, 521 P.2d 987, 988-89 (1974). As the
First Circuit observed in a medical malpractice action with
competing expert opinions, the trial court’s “gatekeeping function
ought not to be confused with the jury’s responsibility to separate
wheat from chaff.” Crowe v. Marchand, 506 F.3d 13, 18 (1st Cir. 2007).
Here, the jury properly was allowed to evaluate the differing
opinions of the experts based on reasons given for them. We
conclude the trial court did not abuse its discretion by admitting
Ferrante’s diagnosis of CRPS and his causation opinion.
Preclusion of evidence of prior medical conditions
¶25 PHM next argues the trial court erred when it
precluded evidence of Sandretto’s prior medical conditions on the
basis of Rule 403, Ariz. R. Evid., and when it failed to make specific
findings supporting its Rule 403 balancing. As explained below,
neither argument is sufficiently presented for our review.
¶26 Before and during trial, PHM requested that it be
allowed to question witnesses about Sandretto’s prior medical
history, including her history of pain and emotional issues.
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Sandretto filed four motions in limine to limit testimony regarding
those issues. PHM also filed an offer of proof listing sixty-one facts
it sought to have admitted. On appeal, PHM cites to the offer of
proof and items contained in the four motions in limine as evidence
it sought to have admitted, and contends the preclusions “unfairly
limited PHM’s cross examination of Plaintiff and her experts.” It is
apparent from the trial record, however, that much of that evidence
was actually admitted. PHM does not list specific items that should
have been admitted but were not, nor does PHM analyze why the
relevance of those individual items or categories of items was not
outweighed by the danger of unfair prejudice pursuant to Rule 403.
Thus, we find the argument insufficient for our consideration on
appeal. See Adams v. Valley Nat’l Bank of Ariz., 139 Ariz. 340, 343, 678
P.2d 525, 528 (App. 1984) (appellate court cannot assume duty of
advocate and search voluminous records to support argument on
appeal).
¶27 PHM’s second argument regarding Rule 403 is
procedural. It contends the trial court should have made “findings
about the factors [it] used in striking the proper [Rule 403] balance.”
Here, again, we cannot determine which evidentiary items were
precluded without specific citations to the record. PHM does not
direct us to the rulings, cite to transcripts, or even provide the
transcripts for every instance in which the court considered whether
or not to admit the evidence. Consequently, we will not consider
this issue on appeal. See Adams, 139 Ariz. at 343, 678 P.2d at 528.
Foundation for future care testimony
¶28 PHM argues Sandretto’s expert Loretta Lukens did not
provide proper foundation to testify about the cost of Sandretto’s
future medical care. More specifically, it contends Ferrante should
have testified at trial that each specific element of the life care plan
was medically necessary. We review the admission of evidence for
an abuse of discretion. See Pipher, 221 Ariz. 399, ¶ 6, 212 P.3d at 93.
¶29 Rule 703, Ariz. R. Evid., details the proper sources of
information for expert opinions. Experts may base their opinions on
“facts or data in the case that the expert has been made aware of or
personally observed,” and facts or data on which “experts in the
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particular field would reasonably rely.” Ariz. R. Evid. 703; Standard
Chartered PLC v. Price Waterhouse, 160 Ariz. 6, 44, 945 P.2d 317, 355
(App. 1996). There is no requirement that the facts or data be part of
the trial testimony. Ariz. R. Evid. 703; see also Pipher, 221 Ariz. 399,
¶ 8, 212 P.3d at 94 (facts or data need not be admissible in evidence).
¶30 Lukens testified that she relied on her own observations
and experience, as well as input from medical doctors, and readily-
available pricing information for procedures, medications, and other
line items. She explained she had twenty years experience
preparing life care plans. To prepare the plan here, she met with
Sandretto and spoke to Ferrante on two occasions. She also spoke to
Dr. Stewart Shanfield regarding orthopedic items on the plan. She
testified she typically relied on physicians to provide medical
justification for individual line items in the life care plan, and then
she would determine the cost to build the plan. Regarding the
reasonableness of costs, Lukens testified her expertise includes the
calculation of the costs of the plan, but the doctors determined
whether a particular line item was appropriate. She also testified
her methods and life care plan are accepted by those in her field
with her level of expertise.
¶31 PHM contends the basis for Lukens’s life care plan is
insufficient because Ferrante testified he did not recall looking at the
plan line by line, and in a deposition he said he had not. Lukens,
however, testified Ferrante had reviewed it all or she would not
have marked it as “reviewed.” Any inconsistency in testimony went
to its weight, not its admissibility. See Smith v. Uniroyal, Inc., 420
F.2d 438, 442 (7th Cir. 1970) (inconsistency in expert testimony to be
considered by jury); Ariz. R. Evid. 702 cmt. (“Where there is
contradictory, but reliable, expert testimony, it is the province of the
jury to determine the weight and credibility of the testimony.”).
PHM has failed to show Lukens’s testimony was not based on facts
or data on which those in her field would reasonably rely.
¶32 PHM makes a related challenge to Lukens’s testimony
based on its conclusion she was not candid in the preparation of her
life care plan. But we do not address the accuracy of PHM’s
characterization because credibility of a witness is a question for the
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trier of fact. See Belliard v. Becker, 216 Ariz. 356, ¶ 19, 166 P.3d 911,
914 (App. 2007); Ariz. R. Evid. 702 cmt. (recent amendment did not
disturb “traditional jury determinations of credibility and the weight
to be afforded” testimony). The trial court did not err in admitting
Lukens’s testimony and life care plan and, therefore, did not err in
denying the motion for a new trial on this basis.
Scope of standard of care opinion
¶33 PHM argues the trial court abused its discretion in
allowing the admission of opinions by Dustyn Severns that had not
been properly disclosed before trial. At trial, Severns testified about
the standard of care of a PA, stating it required proper
communication between a PA and a doctor, and further opining the
PA cannot stay quiet if he believes the doctor is letting too much
time pass between a MRSA diagnosis and treatment.
¶34 A trial court’s decisions regarding alleged disclosure
violations will not be disturbed absent an abuse of discretion.
Solimeno v. Yonan, 224 Ariz. 74, ¶ 9, 227 P.3d 481, 484 (App. 2010).
Rule 26.1(a)(6), Ariz. R. Civ. P., requires parties to disclose
information about the expert witnesses they expect to call at trial,
including a writing detailing “the substance of the facts and
opinions to which the expert is expected to testify,” and “a summary
of the grounds for each opinion.” The purpose of the pretrial
disclosure rules is “to provide the parties ‘a reasonable opportunity
to prepare for trial.’” Breitbart-Napp v. Napp, 216 Ariz. 74, ¶ 21, 163
P.3d 1024, 1030 (App. 2007), quoting Bryan v. Riddel, 178 Ariz. 472,
476 n.5, 875 P.2d 131, 135 n.5 (1994). Detailed scripting is not
required, Solimeno, 224 Ariz. 74, ¶ 14, 227 P.3d at 484, and deposition
testimony may be considered an amendment to prior disclosures,
Link v. Pima Cnty., 193 Ariz. 336, ¶ 9, 972 P.2d 669, 672 (App. 1998).
¶35 Severns’s pretrial disclosure affidavit did not include a
discussion of PA-physician communication protocol and a PA’s
duty to remind a doctor about a MRSA diagnosis. Rather, it focused
more generally on the delay in Sandretto’s treatment after the MRSA
diagnosis. However, Severns testified about the communication
failures during his deposition six months before trial and opined
Morphis’s failure to communicate with Calkins constituted a
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Opinion of the Court
violation of the standard of care. The affidavit and deposition
testimony together were detailed enough for PHM to prepare its
case. Cf. Solimeno, 224 Ariz. 74, ¶ 15, 227 P.3d at 484 (finding
insufficient disclosure where doctor would testify to “his care and
treatment of [patient] and any conversations he had with [her] . . .
[and] his care and treatment . . . complied with the applicable
standard of care”); Englert v. Carondelet Health Network, 199 Ariz. 21,
¶ 7, 13 P.3d 763, 767 (App. 2000) (affirming grant of new trial on
basis of failure to disclose affirmative defense). The trial court did
not abuse its discretion in admitting Severns’s testimony, nor in
refusing to grant a new trial on this basis.
Calkins’s settlement
Time allowed for “Good Faith Settlement” hearing
¶36 PHM argues the trial court abused its discretion in
denying its motion to continue trial to prepare for a “good faith”
settlement hearing regarding Calkins’s settlement with Sandretto.
¶37 Sandretto and Calkins settled on June 19, 2012, and
moved for a good faith settlement hearing the same day. On
June 22, PHM moved to continue the trial, in part to determine the
extent of liability and the effect of the settlement agreement on the
case. On June 25, the court held a hearing, denied the motion to
continue, and determined the settlement had been made in good
faith. The trial began the next day. PHM never filed a formal
objection to the settlement, but made substantive arguments against
approval of the settlement during the hearing.
¶38 We review the grant or denial of a motion to continue
for an abuse of discretion. Alberta Sec. Comm’n, 200 Ariz. 540, ¶ 11,
30 P.3d at 124. Rule 16.2(a), Ariz. R. Civ. P., permits a party to
petition the court for a “formal determination whether [a] settlement
is made in good faith.” Pursuant to Rule 16.2(b), any party may file
an objection within ten days, although that time period “may be
shortened or enlarged by the court.” Rule 16.2(c), requires the court
to set a hearing date upon the timely request of a party, but does not
provide any guidance as to when that hearing may be held.
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Opinion of the Court
¶39 PHM argues it had ten days to object to the settlement
pursuant to Rule 16.2(b), and therefore should have had more time
to prepare for the hearing. The plain language of the rule, however,
provides that the trial court may shorten the time to object and sets
no boundaries for the hearing itself. Additionally, PHM provides no
authority, nor are we aware of any, for why it should have had more
time under Rule 16.2(b) or (c).
¶40 PHM admitted during the good faith settlement hearing
that its evidence of collusion likely would be limited to the terms of
the agreement stating, “[PHM] acknowledge[s] that it would be
difficult to interview the lawyers about what they were doing and so
[it is] left, then, with arguing on the four corners of the agreement.”
At the hearing, PHM had the opportunity to make its substantive
arguments that the agreement was collusive, and the trial court
stated it had read the pleadings and listened to the argument and
concluded the agreement was made in good faith.
¶41 PHM has not demonstrated that a continuance would
have permitted it to obtain the required evidence or present
arguments it had been unable to present. We cannot say the trial
court abused its discretion in refusing to continue trial to allow more
time to prepare objections and conduct discovery into the propriety
of the settlement. See Anderson Aviation Sales Co. v. Perez, 19 Ariz.
App. 422, 428, 508 P.2d 87, 93 (1973) (no abuse of discretion in
denying continuance where one of the defense attorneys was
disbarred on opening day of trial); see also Barmat, 165 Ariz. at 210,
797 P.2d at 1228 (no abuse of discretion in denying further discovery
into settlement agreement).
Vicarious liability claims for Calkins’s acts and omissions
¶42 PHM contends the vicarious liability claims based on
Calkins’s actions should have been dismissed after the trial court
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Opinion of the Court
approved the settlement agreement, when PHM moved for
judgment as a matter of law.9
¶43 Although we review the trial court’s denial of the
motion for a new trial for an abuse of discretion, a court abuses its
discretion when it commits an error of law. Twin City Fire Ins. Co.,
204 Ariz. 251, ¶ 10, 63 P.3d at 254. We review de novo the denial of
a motion for judgment as a matter of law. Acuna v. Kroack, 212 Ariz.
104, ¶ 23, 128 P.3d 221, 227 (App. 2006).
¶44 Under the terms of the agreement, Calkins’s own
insurance carrier,10 which had a $1 million policy limit, would pay
$950,000 to Sandretto in exchange for dismissing the claims against
Calkins without prejudice and agreeing to a covenant not to execute
in his favor. PHM argues the dismissal and covenant constituted a
release and compromise of the claims against PHM as well.
¶45 PHM relies primarily on Law v. Verde Valley Med. Ctr.,
217 Ariz. 92, 170 P.3d 701 (App. 2007), for the proposition that a
judgment in favor of an agent, such as Calkins, eliminates vicarious
liability for the principal, PHM. In Law, the claims against two
doctors sued for medical malpractice were dismissed with prejudice.
9PHM also contends “the trial court abused its discretion by
refusing to inform the jury of the fact that Calkins had settled with
[Sandretto].” PHM provides no authority for this argument, instead
making a substantive argument about whether the claims based on
vicarious liability should have been dismissed and whether the
agreement was collusive. Accordingly, we do not address this issue.
Ariz. R. Civ. App. P. 13(a)(6); Brown v. U.S. Fidelity & Guar. Co., 194
Ariz. 85, ¶ 50, 977 P.2d 807, 815 (App. 1998) (assertion without
authority not considered).
10The agreement also stated that Calkins was covered under
PHM’s liability insurance policy, which provided a policy limit of
$5 million and covered him whether the individual insurance policy
existed or not.
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Opinion of the Court
Id. ¶¶ 4-6. The trial court also granted summary judgment in favor
of the hospital on claims based on the vicarious liability of those
doctors. Id. ¶ 8. This court concluded summary judgment was
proper, relying on DeGraff v. Smith, 62 Ariz. 261, 157 P.2d 342 (1945),
for the principle that “[w]hen a judgment on the merits—including a
dismissal with prejudice—is entered in favor of the ‘other
person’ . . . there is no fault to impute and the party potentially
vicariously liable . . . is not ‘responsible for the fault’ of the other
person.” Law, 217 Ariz. 92, ¶ 13, 170 P.3d at 705, quoting A.R.S. § 12-
2506(D)(2).
¶46 Here, unlike in Law, there was no “judgment on the
merits” regarding Calkins. A dismissal without prejudice—even
when the statute of limitations has run—is not a dismissal on the
merits. Hovatter v. Shell Oil Co., 111 Ariz. 325, 326, 529 P.2d 224, 225
(1974). Additionally, “a covenant not to execute is not a release from
liability.” A Tumbling-T Ranches v. Flood Control Dist. of Maricopa
Cnty., 220 Ariz. 202, ¶ 22, 204 P.3d 1051, 1058 (App. 2008). PHM
contends that this is a “legal fiction,” but does not provide contrary
authority for its position. Neither the dismissal without prejudice
nor the covenant not to execute constituted a release from liability.
The trial court did not err in denying the motion for judgment as a
matter of law and therefore did not abuse its discretion in denying
the motion for a new trial on that basis.
Collusion between Calkins and Sandretto
¶47 PHM also argues the trial court erred in determining
the settlement agreement was not collusive because it allowed
Calkins to admit fault and “avoid the consequences of his
admission,” while leaving PHM to defend the case on the eve of
trial.
¶48 We review a trial court’s decision to approve a
settlement agreement for an abuse of discretion. See Barmat, 165
Ariz. at 210, 797 P.2d at 1228. PHM relies on In re Alcorn, 202 Ariz.
62, ¶¶ 20-21, 41 P.3d 600, 606 (2002), for the principle that an
agreement may be collusive if it deprives the non-settling party of a
fair trial by changing the motive or trial tactics in defending the case.
In that attorney disciplinary proceeding, our supreme court
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Opinion of the Court
determined a secret agreement to dismiss the single remaining
defendant at the close of the case, during which the defendant’s
attorney would not object to the scope of inquiry, was collusive. Id.
¶¶ 11, 30. It resulted in a “sham” trial in which the parties were not
adverse, and the only purpose was to educate the trial judge before
he decided a pending motion to reconsider an earlier summary
judgment in favor of the other defendant. Id. ¶¶ 12, 30. The court
concluded any newly-discovered evidence the plaintiffs wanted to
present in reconsideration of the motion for summary judgment
should have been presented in the motion proceedings, so the other
defendant could participate. Id. ¶ 32.
¶49 Here, PHM may not have expected Calkins to settle, but
its motive and tactics in defending the case did not change in the
manner considered in Alcorn. PHM’s liability was based on the acts
of Calkins and his PA, whether Calkins was a party to the case or
not. Further, Calkins did not suddenly cease defending his actions
as PHM contends. PHM and Sandretto both contend Calkins
changed his testimony between the deposition and the trial,
originally stating he was not aware of the MRSA diagnosis until
nine days after the results, although neither party indicates where or
if the deposition testimony can be found in the record. Even
assuming this to be true, Calkins did not reverse course at trial and
testify that he remembered the MRSA diagnosis; rather, he said he
had no personal recollection of the diagnosis, but the existence of an
antibiotic prescription in the chart indicated that he knew earlier
than he originally stated in his deposition.11
11 At trial, Calkins also admitted that he could not in
truthfulness say he met the standard of care given the documented
delay in treatment. This admission, however, occurred during
PHM’s cross examination and PHM did not then challenge this
statement as inconsistent with earlier deposition testimony. There is
no indication in the briefs or the record that this admission was
inconsistent with Calkins’s deposition testimony.
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Opinion of the Court
¶50 The settlement agreement was disclosed to the trial
court, did not result in a “sham” trial lacking adverse parties, and
did not require that PHM change its tactics or motives in defending
the case, as in Alcorn. The court did not err in approving the
settlement agreement, or in denying the motion for a new trial on
that ground.
Sufficiency of the Evidence
¶51 PHM argues the trial court erred in denying its motion
for a new trial because the verdict shocked the conscience and was
not supported by evidence, and because Sandretto’s counsel made
improper statements during closing argument.
¶52 In ruling on a motion for a new trial, the trial judge sits
as the ninth juror. Hutcherson, 192 Ariz. 51, ¶ 23, 961 P.2d at 453.
“The basic question he or she must ask is whether the jury verdict is
so ‘manifestly unfair, unreasonable and outrageous as to shock the
conscience.’” Id., quoting Young Candy & Tobacco Co. v. Montoya, 91
Ariz. 363, 370, 372 P.2d 703, 707 (1962). The amount of a damages
award is “‘a question peculiarly within the province of the jury, and
such award will not be overturned or tampered with unless the
verdict was the result of passion or prejudice.’” In re Estate of
Hanscome, 227 Ariz. 158, ¶ 12, 254 P.3d 397, 401 (App. 2011), quoting
Larriva v. Widmer, 101 Ariz. 1, 7, 415 P.2d 424, 430 (1966). We do not
reweigh the facts in considering whether there was sufficient proof
to support the jury’s verdict. Hutcherson, 192 Ariz. 51, ¶ 27, 961 P.2d
at 454. “[V]erdict size alone does not signal passion or prejudice.”
Id. ¶ 36. Further, if the size of the verdict is exaggerated “in an area
in which reasonable persons may differ, the trial court should not
lightly conclude that it is tainted.” Estate of Hanscome, 227 Ariz. 158,
¶ 13, 254 P.3d at 401.
¶53 PHM’s argument on appeal relies in large part on its
arguments that much of Sandretto’s expert testimony was
inadmissible, which we have addressed above. PHM admits, “The
verdict may have been supported by the evidence that the trial court
admitted, but the errors by the court deprived PHM of a fair
opportunity to challenge the testimony.”
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Opinion of the Court
¶54 We first must consider whether Sandretto proffered
sufficient evidence of her past and future medical expenses. Her
past medical expenses totaled approximately $330,000. Her
economic expert, Stan Smith, determined her future medical
expenses totaled almost $2 million, based on the life care plan
created by Lukens. Smith also calculated her lost earning capacity
until retirement somewhere between approximately $400,000 and
$740,000, depending on pay. Loss of household services was totaled
at approximately $485,000. In total, Sandretto provided evidence of
economic losses of up to $3.5 million.
¶55 The jury was instructed to compensate Sandretto not
only for her existing and future medical bills or lost earnings, but
also for damages including pain, disfigurement, anxiety, and loss of
enjoyment. Sandretto demonstrated for the jury that her knee is
locked in position, requiring her to walk on her toes. Her boyfriend
testified that riding in the car causes her pain, and she cannot travel
long distances. PHM’s own expert agreed Sandretto’s pain was real.
Because reasonable people may differ as to how much Sandretto
should be compensated for her pain, we do not find the trial court
erred denying the motion for a new trial. See Estate of Hanscome, 227
Ariz. 158, ¶ 13, 254 P.3d at 401.
¶56 PHM’s assertion of improper closing arguments is
waived on appeal because it failed to object at trial. See Copeland v.
City of Yuma, 160 Ariz. 307, 309-10, 772 P.2d 1160, 1162-63 (App.
1989). Waiver will not apply, however, if serious misconduct
actually influences the verdict. See Monaco v. HealthPartners of
S. Ariz., 196 Ariz. 299, ¶ 18, 995 P.2d 735, 741 (App. 1999). PHM
contends Sandretto made two improper arguments: (1) that
Sandretto was “in jail” because “[h]er body is her prison” and that
“she can hear [PHM] laughing,” and (2) that the jury should award
$9 million because that figure would essentially double the
economic damages and past and future medical expenses. The trial
court found no misconduct in Sandretto’s closing arguments, and
we will not reverse that discretionary finding “‘unless the record
clearly establishes that the trial court was incorrect.’” See id., quoting
Grant v. Ariz. Pub. Serv. Co., 133 Ariz. 434, 455, 652 P.2d 507, 528
(1982); see also Ritchie v. Krasner, 221 Ariz. 288, ¶ 52, 211 P.3d 1272,
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Opinion of the Court
1287 (App. 2009) (trial court in “best position” to determine whether
misconduct materially affected rights of other party).
¶57 PHM relies on the size of the verdict to support its
contention, stating that “on the basis of the evidence introduced at
trial . . . [the verdict] clearly demonstrate[s] that the damages were
not only excessive and unsupported by the evidence, but were
undoubtedly the result of passion and prejudice.” Because we have
reviewed the record and determined the verdict was based on
substantial evidence, we cannot say that the record clearly
demonstrates reversible error. See Monaco, 196 Ariz. 299, ¶ 18, 995
P.2d at 741.
Disposition
¶58 For the foregoing reasons, we affirm the trial court’s
denial of PHM’s motion for a new trial.
23