                      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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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




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