Faulkner v. Laboratory Corp. ( 2018 )


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  •                       NOTICE: NOT FOR OFFICIAL PUBLICATION.
    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
    AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
    IN THE
    ARIZONA COURT OF APPEALS
    DIVISION ONE
    LISA FAULKNER, Plaintiff/Appellant,
    v.
    LABORATORY CORPORATION OF AMERICA, et al.,
    Defendants/Appellees.
    No. 1 CA-CV 17-0787
    FILED 10-11-2018
    Appeal from the Superior Court in Maricopa County
    No. CV2015-004144
    The Honorable Dawn M. Bergin, Judge
    AFFIRMED
    COUNSEL
    SL Chapman LLC, Scottsdale
    By Bradley Matthew Lakin, Robert W. Schmieder, II
    Counsel for Plaintiff/Appellant
    Jones Skelton & Hochuli PLC, Phoenix
    By Phillip H. Stanfield, Jonathan Paul Barnes, Jr.
    Counsel for Defendants/Appellees
    FAULKNER v. LABORATORY CORP, et al.
    Decision of the Court
    MEMORANDUM DECISION
    Judge Peter B. Swann delivered the decision of the court, in which Presiding
    Judge Kenton D. Jones and Judge David D. Weinzweig joined.
    S W A N N, Judge:
    ¶1             This is a personal injury case arising from an automobile
    accident. Plaintiff Lisa Faulkner appeals the superior court’s rulings
    precluding expert testimony and evidence, denying her motion for a new
    trial on damages, and awarding sanctions against her under Ariz. R. Civ. P.
    (“Rule”) 68. We conclude that Faulkner’s disclosure violations justified the
    preclusion rulings, the jury’s verdict was consistent with credible evidence,
    and the court properly applied Rule 68 as that rule is currently written. We
    therefore affirm.
    FACTS AND PROCEDURAL HISTORY
    ¶2           In 2013, Lance Estervig, while driving a vehicle owned by his
    employer Laboratory Corporation of America (“LCA”), collided with a
    vehicle driven by Faulkner, in which her minor daughter was a passenger.
    Faulkner and her daughter, who is not a party to this appeal, brought a
    personal-injury negligence action against Estervig and LCA.
    ¶3              The defendants stipulated that Estervig had negligently
    caused the collision, and that LCA was vicariously liable for Estervig’s
    negligence. The defendants denied, however, that the collision caused the
    plaintiffs’ alleged injuries.
    ¶4             The defendants made a pretrial offer of judgment under Rule
    68(g) to resolve Faulkner’s claims for $35,000 and her daughter’s claims for
    $15,000, conditioned on both offerees accepting the respective offers. The
    plaintiffs did not accept the offer.
    ¶5           Faulkner timely disclosed Dr. Amit Patel as both a fact and
    expert witness and, after the expert disclosure deadline, sought treatment
    from and disclosed Dr. Igor Yusupov as an additional fact and expert
    witness. Faulkner later clarified that she wished to introduce Dr. Yusupov’s
    medical records but did not plan to call him as a witness. The defendants
    moved to preclude Dr. Patel from offering expert opinions based on
    Faulkner’s failure to disclose the substance of his anticipated testimony,
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    FAULKNER v. LABORATORY CORP, et al.
    Decision of the Court
    and they moved to exclude Dr. Yusupov’s expert opinion on timeliness
    grounds.
    ¶6             The court excluded Dr. Patel’s calculation of costs for future
    medical care, and precluded Faulkner from eliciting the doctor’s opinions
    on causation “without first providing related medical records to the Court
    sufficiently in advance of the witness testifying for the Court to make a
    ruling.” The court ultimately excluded Dr. Patel’s causation testimony after
    considering records that Faulkner provided on the third day of trial. The
    court held that the records did not articulate causation “because all [Dr.
    Patel] indicates is that she has a history of a motor vehicle accident, and that
    she has pain post motor vehicle collision. It doesn’t indicate that he did
    anything to determine that all of that was actually caused by the motor
    vehicle collision.” With respect to Dr. Yusupov, the court ordered redaction
    of his report’s sentence describing a “professional opinion” that Faulkner’s
    injuries were “casually related to the motor vehicle collision.”
    ¶7            After a six-day trial, the jury returned verdicts in favor of
    Faulkner in the amount of $15,000 and in favor of her daughter in the
    amount of $200,000. The defendants then moved for an award of sanctions
    against Faulkner under Rule 68. The court imposed an $18,962.05 sanction
    against Faulkner, which reduced her judgment to $0 and created a $3,962.05
    award in favor of the defendants. The court denied Faulkner’s motion for
    a new trial on damages. She appeals.
    DISCUSSION
    I.     THE SUPERIOR COURT DID NOT ABUSE ITS DISCRETION BY
    LIMITING DR. PATEL’S TESTIMONY AND REDACTING DR.
    YUSUPOV’S REPORT.
    ¶8            Faulkner first contends that the superior court improperly
    limited Dr. Patel’s testimony and redacted Dr. Yusupov’s report.
    ¶9            The superior court has broad discretion in determining
    whether a party properly disclosed evidence and whether that evidence
    should be admitted at trial. Solimeno v. Yonan, 
    224 Ariz. 74
    , 77, ¶ 9 (App.
    2010). “Trial judges are better able than appellate courts to decide if a
    disclosure violation has occurred in the context of a given case and the
    practical effect of any non-disclosure.” 
    Id.
     We will not disturb such
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    FAULKNER v. LABORATORY CORP, et al.
    Decision of the Court
    decisions on appeal absent an abuse of discretion. 
    Id.
     We discern no abuse
    of discretion in the rulings at issue here.1
    A.     The Superior Court Did Not Abuse Its Discretion by Limiting
    Dr. Patel’s Testimony.
    1.       Dr. Patel was disclosed as an expert witness.
    ¶10           Faulkner contends that she sought to elicit opinion testimony
    from Dr. Patel as a treating-physician fact witness rather than as an expert.
    But she disclosed him as both a fact and expert witness. Specifically, she
    disclosed that she expected Dr. Patel, as a fact witness, to testify “regarding
    his treatment of [her], the pain and suffering endured by [her], disability,
    and disfigurement, and any other matters relevant to the claims asserted in
    this lawsuit, including, but not limited to, opinions regarding causation,
    treatment and prognosis of [her].” And in her expert disclosure, she added
    that she expected Dr. Patel to provide opinions regarding causation,
    permanency, and future medical costs:
    Dr. Patel is expected to opine that [Faulkner’s] injuries
    and/or conditions referenced above were caused and/or
    made symptomatic by the motor vehicle accident of
    November 6, 2013. He will further testify that [Faulkner] will
    require one office visit, at $200-$300 per visit, for the next two
    to three years; three to four injections per month, at $400-$500
    per injection, for the next two to three years; imaging for the
    next two to three years at $1000 per imaging study four times
    a year; and neuromuscular therapy at $200-$300 per session
    two times a week for the next two to three years. He may
    opine that future care beyond these time frames are [sic]
    necessary.
    Dr. Patel is expected to testify that [Faulkner’s] injuries
    were caused and or made symptomatic by the motor vehicle
    crash of November 6, 2013. He is further expected to testify
    as to whether the injuries are permanent in nature. He may
    rely [on] and/or reference medical literature.
    ¶11           In view of the foregoing, we analyze the preclusion of Dr.
    Patel’s testimony under the then-applicable version of Rule 26.1, which in
    subsection (a)(6) required disclosure of “the substance of the facts and
    1     We note, however, that we would have found no abuse of discretion
    had the superior court reached opposite conclusions.
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    FAULKNER v. LABORATORY CORP, et al.
    Decision of the Court
    opinions to which the expert is expected to testify [and] a summary of the
    grounds for each opinion.”
    2.       The superior court acted within its discretion by
    determining that Faulkner failed to disclose sufficient
    grounds for Dr. Patel’s proposed expert opinions.
    ¶12            When a party fails to timely disclose the substance of the facts
    and opinions of an expert’s expected testimony, the superior court may
    preclude the party from eliciting that testimony at trial. Englert v. Carondelet
    Health Network, 
    199 Ariz. 21
    , 25, ¶ 6 (App. 2000); Rule 37(c)(1). In Solimeno,
    for example, we affirmed the court’s grant of a mistrial when the defendants
    violated their Rule 26.1(a)(6) disclosure obligation by failing to disclose the
    “substance of the facts and opinions” and a “summary of the grounds” for
    their standard-of-care expert’s opinions. 224 Ariz. at 78, ¶ 15. Similarly
    here, in view of Faulkner’s failure to disclose the required grounds for Dr.
    Patel’s opinions on both causation and future care and costs (and her failure
    at trial to direct the court to medical records describing causation rather
    than merely reciting patient history), we hold that the court did not abuse
    its discretion by precluding Dr. Patel from providing those opinions.2 For
    the same reasons, neither did the court abuse its discretion by precluding
    Dr. Patel from testifying about causation.
    ¶13            Citing Allstate v. O’Toole, 
    182 Ariz. 284
     (1995), Faulkner
    contends that the defendants were “lying in wait” and used the disclosure
    violations as a “weapon” for exclusion. Allstate rejected the proposition that
    the court must automatically exclude witnesses and exhibits for late
    disclosures where no good cause is shown, and held that “an opposing
    party’s action or inaction in attempting to resolve a discovery dispute short
    of calling for the exclusion of evidence can be an important factor.” 
    Id.
     at
    285–88. But an opposing party’s inaction is just one factor. See 
    id. at 288
    .
    And here, unlike the Allstate plaintiffs, who untimely filed their disclosure
    2      Faulkner’s reliance on Greco v. Manolakos, 
    24 Ariz. App. 490
     (1975), is
    misplaced. In Greco, the superior court barred the plaintiff’s claim for future
    medical expenses based on her failure to update her answers to
    interrogatories. 
    Id.
     at 490–91. We held that on the facts of that case,
    complete foreclosure of the plaintiff’s claim was unwarranted. 
    Id.
     at
    491–92. Here, no such drastic sanction was imposed. Faulkner was
    permitted to testify about her plans for follow-up care with Dr. Patel, and
    the final jury instructions did not prohibit the jury from addressing future
    care and costs.
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    FAULKNER v. LABORATORY CORP, et al.
    Decision of the Court
    statement after their original attorneys withdrew, id. at 286, Faulkner never
    served an adequate disclosure statement regarding the precluded expert
    testimony. Faulkner had an affirmative duty under Rule 26.1(a)(6) to
    disclose the substance of, and grounds for, Dr. Patel’s expert opinions.
    Solimeno, 224 Ariz. at 80, ¶ 23 (citing Norwest Bank (Minn.), N.A. v.
    Symington, 
    197 Ariz. 181
    , 185–86, ¶ 17 (App. 2000) (“[A]t the outset of a case
    the parties must make a full . . . disclosure of all relevant information . . . .
    No longer will it be advantageous to play games of semantics (‘If he’d have
    just asked the right question, I would gladly have disclosed the
    material’).”)). Faulkner did not do so, and the superior court acted within
    its discretion to exclude the inadequately disclosed testimony.
    B.     The Superior Court Did Not Abuse Its Discretion by
    Redacting Dr. Yusupov’s Report.
    ¶14          The superior court redacted the following sentence from Dr.
    Yusupov’s report: “It is my professional opinion to a reasonable degree of
    medical probability that this patient’s lumbar pathologies causally related
    to the motor vehicle collision that she sustained during the MVA that
    occurred on 11/6/13.”
    ¶15            Faulkner contends that the superior court erred by
    considering Dr. Yusupov, a treating physician, as an expert witness. But,
    as with Dr. Patel, Faulkner disclosed Dr. Yusupov as both a fact and an
    expert witness. And we find no abuse of discretion in the superior court’s
    conclusion that the redacted sentence was the opinion of an expert witness
    rather than a treating physician. Doctors who offer causation opinions
    based on their review of another health care provider’s records are
    generally expert witnesses. Sanchez v. Gama, 
    233 Ariz. 125
    , 128, ¶ 9 (App.
    2013); see also Solimeno, 224 Ariz. at 79, ¶ 21 (“[T]here is a significant
    difference between a doctor testifying about raw test results that are
    included in a disclosed medical record . . . and explaining to the jury the
    significance of those results . . . .”). And “while causation questions bearing
    on culpability for an injury . . . may be fact-based in a particular case if the
    professional formed such opinions in treating a patient,” State v. Whitten,
    
    228 Ariz. 17
    , 22, ¶ 20 (App. 2011), the superior court reasonably concluded
    that this was not the case here, where Dr. Yusupov’s causation opinion
    invoked standard expert language and relied on his review of other medical
    records. Accordingly, Faulkner was required to disclose the grounds for
    the opinion under Rule 26.1(a)(6). She did not do so, and the superior court
    did not abuse its discretion by excluding the opinion.
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    FAULKNER v. LABORATORY CORP, et al.
    Decision of the Court
    II.    THE SUPERIOR COURT DID NOT ABUSE ITS DISCRETION BY
    DENYING FAULKNER’S MOTION FOR A NEW TRIAL ON
    DAMAGES.
    ¶16           Faulkner next contends that she was entitled to a new trial on
    damages under Rule 59(a)(1)(E) because her medical expenses far exceeded
    the jury’s award.
    ¶17           We review the superior court’s denial of a new trial motion
    for an abuse of discretion. Spring v. Bradford, 
    243 Ariz. 167
    , 170, ¶ 11 (2017).
    The court must grant a motion for new trial based on insufficient damages
    if “the damage award is tainted by ‘passion or prejudice,’ or is ‘shocking[ly]
    or flagrantly outrageous.’” Soto v. Sacco, 
    242 Ariz. 474
    , 478, ¶ 9 (2017)
    (citation omitted). “The test for whether the jury award is the result of
    passion or prejudice is whether the amount of the verdict is so unreasonable
    and outrageous as to shock the conscience.” Mammo v. State, 
    138 Ariz. 528
    ,
    532 (App. 1983). A “verdict will not be deemed the result of passion and
    prejudice if within the range of credible evidence.” Flieger v. Reeb, 
    120 Ariz. 31
    , 33 (App. 1978).
    ¶18            Faulkner presented evidence to the jury that she incurred
    $103,217.38 in medical expenses resulting from the collision. The
    defendants stipulated that the expenses were reasonable, usual, and
    customary for the listed services, but they disputed that the expenses
    related to the collision.
    ¶19            The jury received credible evidence supporting the
    defendants’ position. For example, the defendants presented medical
    records documenting, less than a month before the collision, Faulkner’s
    “[l]ow back pain” and “persistent discomfort” in her lumbar spine and
    right shoulder. The jury also heard testimony and evaluated medical
    records demonstrating that Faulkner’s chiropractor observed a 98%
    improvement in her overall function and pain less than five months after
    the collision. Further, a defense expert testified that Estervig’s vehicle was
    going no greater than 7.2 miles per hour at the time of the collision, and that
    the impact would not have caused the long-term injuries alleged by
    Faulkner, but rather would likely have resulted in “minor transient
    soreness.” An independent medical examiner testified that Faulkner had
    not incurred any new injuries, and that her pre-existing conditions had not
    changed because of the collision.
    ¶20          In view of the foregoing evidence, we cannot say that the
    jury’s award of $15,000 to Faulkner shocks the conscience.
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    FAULKNER v. LABORATORY CORP, et al.
    Decision of the Court
    III.   THE SUPERIOR COURT PROPERLY AWARDED RULE 68
    SANCTIONS.
    ¶21           Faulkner finally contends that the superior court erred by
    imposing Rule 68 sanctions. We review the interpretation and application
    of the rule de novo. Stafford v. Burns, 
    241 Ariz. 474
    , 484, ¶ 38 (App. 2017).
    ¶22             Rule 68(g) provides that “[a] party who rejects an offer, but
    does not obtain a more favorable judgment, must pay as a sanction . . . the
    offeror’s reasonable expert witness fees and double the taxable
    costs . . . incurred after the offer date; and . . . prejudgment interest on
    unliquidated claims accruing from the offer date.”
    ¶23            Faulkner contends that because the defendants’ rejected
    pretrial offer of judgment made a “hybrid offer” to her and her daughter,
    the court was required to measure the combined offers ($35,000 to Faulkner
    and $15,000 to her daughter) against the combined judgments ($15,000 to
    Faulkner and $200,000 to her daughter) when assessing the propriety of
    sanctions under Rule 68(g). We reject Faulkner’s argument. The offer was
    structured in accordance with Rule 68(f), which prohibits unapportioned
    offers to multiple offerees, authorizes “apportioned offer[s] to multiple
    offerees conditioned by acceptance by all of the offerees,” and provides that
    “[t]he sanctions provided in this rule apply to each offeree who did not
    accept the apportioned offer.”3 Adoption of Faulkner’s theory would
    transform the defendants’ apportioned offer into an invalid unapportioned
    offer. The superior court properly measured the $35,000 offer to Faulkner
    against her $15,000 judgment, and properly awarded sanctions.4
    3      Because neither plaintiff accepted the offer, Rule 68(f)(1), which
    describes the circumstances under which the maker of an apportioned offer
    may enforce acceptance by fewer than all offerees, does not apply.
    4      We note, as a general matter, that the correct application of Rule 68
    may have counterintuitive and even unjust consequences in some cases.
    For example, “[i]f the defendant/offeror underestimates his exposure and
    the plaintiff/offeree obtains a more favorable judgment—even by a single
    dollar—the offeror stands liable for costs and expert witness fees.” Stafford,
    241 Ariz. at 484, ¶ 42 (emphasis added).
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    FAULKNER v. LABORATORY CORP, et al.
    Decision of the Court
    CONCLUSION
    ¶24   We affirm for the reasons set forth above.
    AMY M. WOOD • Clerk of the Court
    FILED: AA
    9