Saint-George v. Mayo ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
JO A. SAINT-GEORGE and STEVEN SAINT-GEORGE, as husband and
wife, Plaintiffs/Appellants,
v.
MAYO CLINIC ARIZONA; MAYO CLINIC SCOTTSDALE; MAYO
REGIONAL PRACTICES ARIZONA, Defendants/Appellees.
No. 1 CA-CV 13-0335
FILED 10-16-2014
Appeal from the Superior Court in Maricopa County
No. CV2010-011588
The Honorable Randall H. Warner, Judge
AFFIRMED
COUNSEL
Jo A. Saint-George, Baltimore
Plaintiffs/Appellants
Snell & Wilmer, L.L.P., Phoenix
By Barry D. Halpern, Martha E. Gibbs, Craig Logsdon
Counsel for Defendants/Appellees
SAINT-GEORGE v. MAYO
Decision of the Court
MEMORANDUM DECISION
Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Patricia A. Orozco and Judge Randall M. Howe joined.
P O R T L E Y, Judge:
¶1 Jo A. Saint-George appeals from a judgment dismissing her
claims against Mayo Clinic Arizona, Mayo Clinic Scottsdale, and Mayo
Regional Practices Arizona (collectively, “Mayo”) as a sanction for
discovery abuses. She claims that the trial court erred by: (1) allowing
discovery before ruling on her summary judgment motions; (2) ordering
her to participate in an independent medical examination (“IME”); (3)
failing to grant her sanctions under Arizona Rule of Civil Procedure
(“Rule”) 16(f); (4) granting sanctions against her under Arizona Revised
Statutes (“A.R.S.”) section 12-349(A)(3)1 without specific findings of fact
and conclusions of law; (5) granting three monetary sanctions under Rule
37; and (6) dismissing her case as a discovery sanction.2 Finding no abuse
of discretion, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 Saint-George met with Steven Ressler, M.D., at the Mayo
Clinic on June 27, 2007. Dr. Ressler ordered an MRI test, which showed a
benign cyst near her pituitary gland. Ten months later, Saint-George
returned for a follow-up appointment, but did not report any symptoms
that would suggest the cyst was affecting her endocrine system.
Subsequently, she sought additional treatment with various healthcare
providers across the nation. In September 2009, Saint-George had the
benign cyst removed.
1We cite to the current version of the statute unless otherwise noted.
2 Saint-George also accuses Mayo’s counsel of violating multiple ethical
rules. She did not make the argument before the trial court and we will not
consider it for the first time on appeal. See Englert v. Carondelet Health
Network, 199 Ariz. 21, 26, ¶ 13, 13 P.3d 763, 768 (App. 2000) (appellate court
does not consider issues raised for first time on appeal).
2
SAINT-GEORGE v. MAYO
Decision of the Court
¶3 Saint-George sued Mayo alleging that Dr. Ressler failed to
diagnose her “Secondary Addison’s disease,” a rare endocrine disorder.3
Saint-George, an Arizona lawyer4 who was representing herself, failed to
cooperate with discovery. For example, when she appeared late for a status
conference, the trial court, after setting aside the dismissal that had been
entered moments earlier,5 admonished her to “actively litigate the case
from this point forward or the case may be dismissed upon appropriate
motion from Defendants.” The court also ordered Saint-George to comply
with her discovery obligations, and ordered her to pay sanctions of $7804
to Mayo for her lack of compliance.
¶4 Saint-George, however, continued to not actively prosecute
her case or cooperate with discovery, and Mayo filed another motion to
dismiss. In response, Saint-George filed five motions for partial summary
judgment and a late response to the motion to dismiss. Mayo responded
by filing a motion for fees, costs and double damages under A.R.S.
§ 12-349(A)(3), alleging that Saint-George repeatedly and unreasonably
expanded and delayed the proceedings. Saint-George failed to respond,
and the trial court granted Mayo’s § 12-349(A)(3) motion and sanctioned
Saint-George by ordering her to pay Mayo $8567.
¶5 At a subsequent status conference, the court denied Mayo’s
motion to dismiss, discussed discovery, including Saint-George’s
deposition and potential IME, and ordered that Mayo notice the deposition
and the IME on the same day or on two consecutive days by the end of July
2012. Saint-George then filed multiple motions asking the court to rule on
her pending motions for partial summary judgment before any deposition
or IME. The court denied her motions.
¶6 Saint-George also filed a motion for protective order arguing
that the IME was unnecessary because she was not currently being treated
for her injuries. The court denied her motion and Mayo ultimately
scheduled the IME on October 11 and her deposition the following day.6
3 Saint-George also sued Dr. Ressler, but voluntarily dismissed him from
the lawsuit.
4 Saint-George is also licensed in California.
5 The court, however, did not set aside the dismissal of the claims filed by
her husband, Steven Saint-George.
6 Saint-George sought to stay the IME, but the trial court denied her request.
She filed an unsuccessful special action to this court, 1 CA-SA 12-0227 and
our supreme court, CV 12-0417-PR.
3
SAINT-GEORGE v. MAYO
Decision of the Court
¶7 Saint-George did not attend the IME, but appeared and was
deposed the following day. The court sanctioned Saint-George for “not
cooperat[ing] in discovery in good faith and [failing to] compl[y] with the
court’s orders with respect to the IME” and ordered her to pay Mayo
$3233.50. The court also warned Saint-George that if she failed to attend
the IME, “she may be subject to additional sanctions which may include
precluding her trial testimony or precluding her expert from testifying.”
¶8 After Mayo rescheduled the IME for December 12, Saint-
George filed three motions that collectively were designed to stop the IME
and reverse the court’s prior orders. The court denied the motions, ordered
Saint-George to appear for the IME and, again, sanctioned her to pay
$6422.50 for Mayo’s attorneys’ fees and the IME fee.
¶9 Saint-George appeared for the December IME, but refused to
submit to a mental examination. Mayo then moved to dismiss and, after
briefing and a hearing, the court dismissed Saint-George’s case finding that
she willfully and in bad faith violated court orders by: (1) refusing to sign
medical releases, (2) refusing to attend the October 11 IME, and (3) refusing
to participate in the December 12 IME.
DISCUSSION
A. Motions for Partial Summary Judgment
¶10 Saint-George first contends that the trial court abused its
discretion by requiring her to submit to an IME before ruling on her five
partial summary judgment motions. She argues that Mayo never filed a
Rule 56(f) affidavit outlining why Mayo needed to conduct additional
discovery before responding to the partial summary judgment motions.
¶11 We review the trial court’s ruling extending the time for Mayo
to respond to the partial summary judgment motions for an abuse of
discretion. See Findlay v. Lewis, 172 Ariz. 343, 346–47, 837 P.2d 145, 148–49
(1992) (appellate court will not substitute its judgment for the superior
court's management of its docket in determining whether to grant motion
for extension of time); see also cf. Blue v. Hartford Life & Acc. Ins. Co., 698 F.3d
587, 593-96 (7th Cir. 2012) (finding that the district court was responsible for
trial management and did not abuse its discretion under Fed. R. Civ. P. 6(b)
or 56(f) by denying a motion for a second extension of time to respond to a
summary judgment motion).
4
SAINT-GEORGE v. MAYO
Decision of the Court
¶12 Rule 56(f) provides one mechanism for getting additional
time to respond to a motion for summary judgment. A party opposing a
summary judgment motion, who is unable to secure affidavits or other
evidence to file a response may seek additional time to conduct discovery
and respond by filing an affidavit outlining the necessary discovery and the
time that it will take. Ariz. R. Civ. Pro. 56(f); see Best v. Edwards, 217 Ariz.
497, 504, ¶ 30, 176 P.3d 695, 702 (App. 2008).
¶13 Rule 56(c)(2) is another mechanism to seek additional time to
respond to a summary judgment motion. It provides that:
A party opposing the motion must file its
response and any supporting materials within
30 days after service of the motion. The moving
party shall have 15 days after service of the
response in which to serve a reply
memorandum and any supporting materials.
These time periods may be shortened or
enlarged by a filed stipulation of the parties or
by court order; provided, however, that court
approval is required for any stipulated
extensions to a briefing schedule that would
purport to make a reply or other memorandum
due less than five days before a hearing date
previously set by the court, or would require
postponement of a scheduled hearing date or
other modifications to an existing case
scheduling order.
Ariz. R. Civ. Pro. 56(c)(2) (emphasis added); see also Ariz. R. Civ. Pro. 6(b)
(allows the trial court discretion to enlarge the time for a party to respond
to a motion if made before the expiration of the time period).
¶14 Here, before the responses to the partial summary judgment
motions were due, Mayo filed a successful motion to extend the response
deadline to Saint-George’s motions given her lack of cooperation with
discovery. Mayo subsequently requested additional extensions that were
granted by the court. Because the court extended Mayo’s response time to
the partial summary judgment motions, Mayo did not have to file a
separate Rule 56(f) affidavit. Consequently, because the trial court was
managing the case given the ongoing discovery issues, the court did not
abuse its discretion by extending Mayo’s response time to the partial
summary judgment motions.
5
SAINT-GEORGE v. MAYO
Decision of the Court
B. Psychiatric Independent Medical Examination
¶15 Saint-George next argues that the trial court erred by ordering
her to participate in a psychiatric IME because Mayo did not have good
cause for the examination. A trial court may order a litigant to undergo a
mental or physical examination by a qualified professional under Rule 35
when the party's physical or mental condition is in controversy and good
cause is shown. See Avila v. Superior Court, 169 Ariz. 49, 52, 816 P.2d 946,
949 (App. 1991). Because “[a] trial court has broad discretion over
discovery matters, . . . this court will not disturb that discretion absent a
showing of abuse.” Blazek v. Superior Court In & For Cnty. of Maricopa, 177
Ariz. 535, 537, 869 P.2d 509, 511 (App. 1994) (citing Brown v. Superior Ct.,
137 Ariz. 327, 331, 670 P.2d 725, 729 (1983)).
¶16 Here, Saint-George alleged Mayo was responsible for her
injuries because Mayo failed to diagnose her endocrine disorder. Mayo
sought a psychiatric IME because a doctor at the University of Michigan,
who had examined Saint-George after her visits at Mayo, recommended she
see a psychiatrist after failing to find any medical problems with her
endocrine system. Mayo, as a result, wanted Saint-George examined by a
licensed, board-certified psychiatrist and Mayo successfully argued that
Saint-George’s mental health was an issue because she could have factitious
disorder7 that might explain her symptoms. See Schlagenhauf v. Holder, 379
U.S. 104, 119 (1964) (“A plaintiff in a negligence action who asserts mental
or physical injury . . . places that mental or physical injury clearly in
controversy and provides the defendant with good cause for an
examination . . . of such asserted injury.”). Because Saint-George put her
physical and possibly mental health condition at issue by filing a medical
malpractice lawsuit, the court did not abuse its discretion in ordering the
IME.
¶17 Saint-George also claims that the trial court erred because
Mayo failed to file a Rule 35(a) motion and notice of the IME with the court,
and the court never ordered her to attend a “psychiatric” IME. We disagree.
Although a notice of IME is generally not filed with the court, see Ariz. R.
7 Factitious disorder is mental health disorder defined as the psychiatric
condition in which a patient deliberately produces or falsifies symptoms
and/or signs of illness for the principal purpose of assuming the sick role.
American Psychiatric Association, Diagnostic and Statistical Manual of Mental
Disorders, 513 (4th ed. 2000).
6
SAINT-GEORGE v. MAYO
Decision of the Court
Civ. P. 5(g)(2)(B), Mayo filed the notice of the December IME along with the
certificate of service after being directed to do so by the court.
¶18 Saint-George’s argument that the court never ordered her to
attend a “psychiatric” IME is frivolous. The December 12 IME notice stated
that: the examination would be by a board-certified psychiatric physician;
the psychiatrist would be assisted by a licensed psychologist; and “[t]he
examination and interview will include all aspects of physical and mental
health issues as they may relate to the liability issues and damages alleged
by Plaintiff in her Complaint.” Saint-George responded by filing a
protective order, a special action, and several other motions trying to
prevent the psychiatric IME. The court denied all her motions and ordered
her to attend the December 12 IME. Consequently, based on the record, the
court clearly ordered her to participate in a complete IME, including a
psychiatric component, and did not abuse its discretion in doing so.8
C. Rule 16(f) Sanctions
¶19 Saint-George contends that the trial court erred by failing to
award sanctions to her under Rule 16(f) after Mayo violated Rule
37(b)(2)(C) by allegedly serving the IME after the court-ordered deadline.
We review the ruling on discovery violations and sanctions for an abuse of
discretion. Solimeno v. Yonan, 224 Ariz. 74, 77, ¶ 9, 227 P.3d 481, 484 (App.
2010).
¶20 The trial court ordered Mayo to notice Saint-George’s
deposition and IME by the end of July 2012. Mayo timely served Saint-
George with a notice of deposition and notice of IME.9 She ignored the
September notice of deposition. She sought to prevent the IME by filing a
motion for protective order, and asked the court to stay any further
discovery until after a ruling on her summary judgment motions. Although
Mayo rescheduled the IME for October, Saint-George refused to attend. She
8 Saint-George also argues that the court abused its discretion by failing to
reconsider and vacate the discovery orders after the case was transferred to
a new judge. She, however, has not provided any authority for her
proposition that a judge being assigned to an existing case must reconsider
and set aside all prior discovery rulings. Such a ruling, however, could
constitute an improper horizontal appeal. See Donlann v. Macgurn, 203 Ariz.
380, 385-86, ¶ 29, 55 P.3d 74, 79-80 (App. 2002).
9 Although Saint-George contends on appeal that Mayo did not timely
notice her IME, she conceded in her motion for protective order that Mayo
had noticed the deposition and the IME on July 17, 2012.
7
SAINT-GEORGE v. MAYO
Decision of the Court
did attend the IME when it was rescheduled in December, but refused to
cooperate with the mental examination portion of the IME.
¶21 During discovery, Mayo sought to exclude Saint-George from
testifying. In responding to Mayo’s motion, she denied violating any order.
In addition to addressing Mayo’s motion, Saint-George’s response included
the following heading in the caption, “Request for Sanctions for Defendant
Failure to Comply with Court Orders.” In later pleadings, she argued for
sanctions. The court did not formally act on her request for sanctions,
which we treat as a denial of her request. See Pearson v. Pearson, 190 Ariz.
231, 237, 946 P.2d 1291, 1297 (App. 1997) (holding that a court’s failure to
rule on motions for attorneys’ fees implies that the motions were denied).
¶22 The trial court was in the best position to determine when to
award sanctions as part of its authority to manage discovery and the
discovery deadlines. See Marquez v. Ortega, 231 Ariz. 437, 441, ¶ 14, 296 P.3d
100, 104 (App. 2013). Because the court had to evaluate Saint-George’s
response and request in the context of the ongoing discovery dispute, the
court was in the best position to determine whether to sanction Mayo. As
a result, the court did not abuse its discretion by denying Saint-George’s
request for sanctions.
D. Section 12-349(A)(3) Sanctions
¶23 Saint-George challenges the sanctions imposed on her under
§ 12-349 and contends that the trial court did not make sufficient findings
of fact and conclusions of law to justify them. Section 12-349(A)(3) provides
that the court “shall assess reasonable attorney fees, expenses and, at the
court’s discretion, double damages of not to exceed five thousand dollars
against an attorney or party . . . if the attorney or party . . . [u]nreasonably
expands or delays the proceeding.” And, § 12-350 requires the court to state
its reasons for the award. Saint-George, however, did not file a response to
Mayo’s motion for statutory sanctions, did not object to the ruling or seek
relief under Rules 59 or 60. Her failure to object to the alleged sufficiency
of the findings and conclusions “precludes [her] from raising the absence
of findings as error on appeal.” Trantor v. Fredrikson, 179 Ariz. 299, 301, 878
P.2d 657, 659 (1994). As a result, we will not consider her argument
challenging the statutory sanctions for the first time on appeal.
E. Rule 37 Sanctions
¶24 Saint-George next argues the trial court abused its discretion
by awarding three separate Rule 37 sanctions against her because Mayo
failed to comply with Rule 37(a)(2)(C). We review a ruling on discovery
8
SAINT-GEORGE v. MAYO
Decision of the Court
violations and sanctions for an abuse of discretion. Solimeno, 224 Ariz. at
77, ¶ 9, 227 P.3d at 484.
¶25 Rule 37(a)(2)(C) requires a party in a discovery dispute to first
make good-faith efforts to resolve the dispute before seeking a motion to
compel. If Saint-George thought Mayo had not made good-faith efforts to
resolve any discovery dispute, she should have raised the issue first with
the trial court. But once Saint-George failed to comply with her discovery
obligations, Mayo was free to seek Rule 37 sanctions. Moreover, every time
the court sanctioned Saint-George, the court had first ordered her to
provide or cooperate with the required discovery, gave her time to comply
with the order, and described the basis for the ruling. Consequently, the
court did not abuse its discretion by awarding sanctions for three different
discovery violations.
F. Dismissal
¶26 Saint-George finally argues that the trial court erred by
dismissing her complaint for discovery violations. We will affirm the ruling
unless the record reflects a clear abuse of discretion. Rivers v. Solley, 217
Ariz. 528, 530, ¶ 11, 177 P.3d 270, 272 (App. 2008) (citing Wayne Cook Enter.,
Inc. v. Fain Prop. Ltd. P'ship, 196 Ariz. 146, 147, ¶ 5, 993 P.2d 1110, 1111 (App.
1999)). The court’s discretion in dismissing a case for discovery violations
“is more limited than when it employs lesser sanctions,” id. (citations
omitted); see Gulf Homes, Inc. v. Beron, 141 Ariz. 624, 628, 688 P.2d 632, 636
(1984), but we defer to the court’s explicit or implicit factual findings and
will affirm them so long as they are supported by reasonable evidence.
Twin City Fire Ins. Co. v. Burke, 204 Ariz. 251, 254, ¶ 10, 63 P.3d 282, 285
(2003).
¶27 Mayo asked the court multiple times to dismiss the case for
discovery violations. The court repeatedly denied Mayo’s motions to
dismiss the case. It was only after Saint-George’s failure to participate in
the December IME, briefing on Mayo’s subsequent motion to dismiss, and
an evidentiary hearing, that the ultimate civil sanction was imposed. In its
comprehensive ruling, the court recounted the long history of the case and
determined that dismissal, an extreme sanction, was warranted since lesser
sanctions did not “succeed[] in compelling [Saint-George] to comply with
court orders, and are unlikely to do so in the future.” Moreover, the court
found that Saint-George’s violations were not “one-time or accidental, but
rather [were] repeated and pervasive” and “[t]he only conclusion one can
draw is that [Saint-George] is unable or unwilling to comply with the Rules
of Civil Procedure and the court’s orders.” As a result, and after
9
SAINT-GEORGE v. MAYO
Decision of the Court
considering her refusal to participate in the December IME, the court found
that Saint-George’s “actions have . . . [made] it impossible for [Mayo] to get
a fair trial” and the “only appropriate sanction is dismissal.”
¶28 We have reviewed the record to determine if there is
reasonable evidence to support the court’s ruling. Saint-George brought
the medical malpractice lawsuit but would not participate in discovery, and
refused to do so for three years. As a result, we do not find that the court
abused its discretion by concluding that the only appropriate sanction was
to dismiss the lawsuit with prejudice.
¶29 Saint-George has requested that we sanction Mayo under
§ 12-349(A) and issue a disgorgement sanction against Mayo’s counsel for
$26,026. Because Saint-George was not the prevailing party on appeal, we
deny her requests.
CONCLUSION
¶30 Based on the foregoing, we affirm the judgment of dismissal
with prejudice.
:gsh
10