                                                                    FILED BY CLERK
                            IN THE COURT OF APPEALS                     AUG 25 2008
                                STATE OF ARIZONA                        COURT OF APPEALS
                                  DIVISION TWO                            DIVISION TWO




LORENZO SANCHEZ, SR., and                    )
BERTHA SANCHEZ, husband and wife,            )
                                             )        2 CA-CV 2007-0170
                    Plaintiffs/Appellants,   )        DEPARTMENT B
                                             )
                   v.                        )        OPINION
                                             )
TUCSON ORTHOPAEDIC INSTITUTE,                )
P.C., an Arizona corporation, and            )
JAMES H. LEVI, M.D., and JANE DOE            )
LEVI, husband and wife,                      )
                                             )
                  Defendants/Appellees.      )
                                             )


           APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                                Cause No. C20062115

                            Honorable John F. Kelly, Judge

                                      AFFIRMED


Aboud & Aboud, P.C.
 By Michael J. Aboud                                                           Tucson
                                                    Attorneys for Plaintiffs/Appellants

Cavett & Fulton, P.C.
 By Dan Cavett                                                                 Tucson

   and

Jones, Skelton & Hochuli, P.L.C.
 By Eileen Dennis GilBride                                                   Phoenix
                                                   Attorneys for Defendants/Appellees
E C K E R S T R O M, Presiding Judge.


¶1            Appellants Lorenzo and Bertha Sanchez appeal from the trial court’s grant of

summary judgment in favor of appellees James Levi, M.D., and Tucson Orthopaedic

Institute. The trial court based its ruling on the Sanchezes’ failure to comply with the statute

governing preliminary expert opinion affidavits in medical malpractice cases, A.R.S. § 12-

2603. Contending the statute’s requirements cannot be harmonized with the res ipsa

loquitur doctrine, the Sanchezes argue, inter alia, that the trial court erred when it applied

those requirements to their claim and further erred when it concluded that, in any event,

they had not sufficiently established the elements of res ipsa loquitur. Because we agree the

Sanchezes have not established the elements of res ipsa loquitur as to their claim against

Levi and Tucson Orthopaedic, we do not address any conflict between the requirements of

§ 12-2603 and the res ipsa doctrine, and we affirm the judgment.

¶2            When reviewing a trial court’s grant of summary judgment, we view the facts

and all reasonable inferences therefrom in the light most favorable to the opposing party.

Gorney v. Meaney, 214 Ariz. 226, ¶ 2, 150 P.3d 799, 801 (App. 2007). According to the

complaint, Dr. James Levi, an orthopedic surgeon, performed knee surgery on Lorenzo

Sanchez on April 28, 2004.         Dr. Daniel Hughes, a board-certified anesthesiologist,

administered anesthesia. Lorenzo now has severe and permanent nerve damage to his leg.

The Sanchezes filed a complaint for medical malpractice against Old Pueblo Anesthesia,


                                               2
P.C., Hughes, Levi, and Tucson Orthopaedic. The Sanchezes alleged that, although they

were “not in a position to prove the particular circumstances or conduct which caused [the]

damage,” it would not have occurred unless Hughes or Levi or both had been negligent.

¶3            Old Pueblo moved to dismiss the complaint because the Sanchezes had failed

to certify whether expert opinion testimony was necessary pursuant to § 12-2603(A), and

Tucson Orthopaedic joined the motion. The Sanchezes responded by certifying that “the

applicability of [res ipsa loquitur] must and will be established by expert testimony.” The

Sanchezes also avowed they would timely provide a preliminary expert opinion affidavit

supporting their claims in compliance with § 12-2603(B). The court denied the motion.

¶4            When the court’s pretrial discovery deadline for the disclosure of expert

witnesses expired, the Sanchezes had provided the affidavit of an orthopedic surgeon but not

an anesthesiologist. After the disclosure deadline had passed, Old Pueblo again moved to

dismiss the Sanchezes’ complaint, this time for failure to comply with A.R.S. § 12-2604(A),

which sets forth the necessary qualifications for expert testimony establishing the standard

of care in a medical malpractice case. Old Pueblo argued the affidavit of the orthopedic

surgeon the Sanchezes had provided to satisfy § 12-2603(B) was not “qualified and

admissible expert testimony against Dr. Hughes,” an anesthesiologist. The court granted the

motion, thereby dismissing the complaint against Old Pueblo.

¶5            Tucson Orthopaedic subsequently moved for summary judgment on the

grounds that the Sanchezes had failed to establish a prima facie case of medical malpractice,


                                             3
that their expert’s affidavit failed to meet the requirements of § 12-2603(B), and that res ipsa

loquitur was inapplicable. The court granted the motion, agreeing with Tucson Orthopaedic

that the affidavit failed to state how Levi had fallen below the standard of care and how that,

in turn, would have caused Lorenzo’s injury. The court stated that, because it had

concluded the Sanchezes had not complied with the statute, it need not decide whether they

had proven the elements of res ipsa loquitur, but that “Levi [and Tucson Orthopaedic] would

be entitled to summary judgment on this basis as well” because the Sanchezes could not

prove the injury was caused by an instrumentality subject to Levi’s control.

¶6            After the court dismissed their case against Old Pueblo but before it granted

summary judgment in favor of Tucson Orthopaedic, the Sanchezes appealed from the

judgment in favor of Old Pueblo.         After summary judgment was granted in Tucson

Orthopaedic’s favor, the Sanchezes separately appealed from that judgment as well. This

court declined to consolidate the appeals and subsequently issued an opinion in Sanchez

v. Old Pueblo Anesthesia, P.C., 218 Ariz. 317, 183 P.3d 1285 (App. 2008), in which we

addressed the dismissal of the complaint against Old Pueblo and Hughes for the Sanchezes’

failure to comply with § 12-2604.1

¶7            In this appeal, the Sanchezes argue the trial court erred when it granted

summary judgment in favor of Tucson Orthopaedic because, in doing so, it “essentially ruled


       In that appeal, we decided the statutes applied retroactively to the Sanchezes’
       1

claims—an issue they have also raised in this appeal. Sanchez, 218 Ariz. 317, n.4, 183 P.3d
at 1288 n.4.

                                               4
that A.R.S. § 12-2603 trumps the age-old doctrine of res ipsa.” We review de novo the trial

court’s decision to grant summary judgment. Lowe v. Pima County, 217 Ariz. 642, ¶ 14,

177 P.3d 1214, 1218 (App. 2008). The trial court must grant summary judgment if it finds

“that there is no genuine issue as to any material fact and that the moving party is entitled

to a judgment as a matter of law.” Ariz. R. Civ. P. 56(c); accord Lowrey v. Montgomery

Kone, Inc., 202 Ariz. 190, ¶ 4, 42 P.3d 621, 623 (App. 2002). And we may affirm a trial

court’s grant of summary judgment if it is correct for any reason. See Evenstad v. State, 178

Ariz. 578, 586, 875 P.2d 811, 819 (App. 1993).

¶8            Here, we need not reach the question whether § 12-2603 effectively abolishes

the doctrine of res ipsa loquitur in medical malpractice cases requiring expert testimony

because we conclude the Sanchezes have not sufficiently established all the elements of res

ipsa loquitur.2 A plaintiff must establish the following elements to be entitled to invoke that

doctrine and reach the jury without direct proof of negligence: (1) the injury must be of a

kind that usually does not occur without negligence, (2) the injury must be caused by an

instrumentality within the defendant’s exclusive control, and (3) the plaintiff must be unable

to show the specific circumstances that caused the instrumentality to effect the injury. Cox

v. May Dep’t Store Co., 183 Ariz. 361, 364, 365-66, 903 P.2d 1119, 1122, 1123-24 (App.


       2
        For the same reason, we do not address the Sanchezes’ argument that the
legislature’s enactment of § 12-2603 impermissibly infringes on the judiciary’s constitutional
power to make procedural rules. See Seisinger v. Siebel, 532 Ariz. Adv. Rep. 8, ¶ 19 (Ct.
App. June 17, 2008) (holding § 12-2604(A), companion legislation to § 12-2603,
unconstitutional).

                                              5
1995). We conclude the Sanchezes have not sufficiently shown that Levi had exclusive

control of the instrumentality that injured Lorenzo.

¶9            The exclusive-control element is not to be applied rigidly but “is merely an aid

in determining whether it is more probable than not that the [injury] was the result of

defendants’ negligence.” Byars v. Ariz. Pub. Serv. Co., 24 Ariz. App. 420, 426, 539 P.2d

534, 540 (1975); accord McDonald v. Smitty’s Super Valu, Inc., 157 Ariz. 316, 321, 757

P.2d 120, 125 (App. 1988). Although plaintiffs are not required to exclude all other

possible causes of the injury, they must present facts showing there was a greater probability

the injury resulted from the defendant’s negligence than from any other cause. Byars, 24

Ariz. App. at 426, 539 P.2d at 540; see Phen v. All Am. Bus Lines, 56 Ariz. 567, 570, 110

P.2d 227, 228 (1941) (“If, however, there are two concurring causes of the accident, one of

which is under the control of a stranger, and there is no evidence it was any more likely that

the injury was caused by the negligence of defendant than by that of the stranger, the rule

does not apply.”); see also Siebrand v. Gossnell, 234 F.2d 81, 87 (9th Cir. 1956)

(discussing Arizona cases “rest[ing] on the principle” that res ipsa does not apply “when the

accident could have happened from various causes, some of which were unrelated to

defendant’s conduct”); William L. Prosser, Handbook of the Law of Torts § 39, at 218 (4th

ed. 1971) (“The injury must either be traced to a specific instrumentality or cause for which

the defendant was responsible, or it must be shown that he was responsible for all

reasonably probable causes to which the accident could be attributed.”).


                                              6
¶10           Here, the Sanchezes repeatedly argue that Lorenzo’s injury “would not have

occurred in the absence of negligence of either the anesthesiologist or the orthopedic

surgeon.” (Emphasis added.) And they provided the affidavit of an orthopedic surgeon,

who states, inter alia, that he believes the injury to Lorenzo’s nerves was caused during the

surgery and that “such damage would not occur during this kind of operative procedure

unless there was negligence either by the Surgeon or by the Anesthesiologist.” He further

avows that, if the injury was caused by Levi during the procedure, “that would be below the

standard of care.” As to Hughes’s potential negligence, he opines that Lorenzo’s nerves

should not have been damaged by a properly administered femoral nerve block, and he notes

Lorenzo’s medical records suggest that Hughes had administered a popliteal block, which

would fall below the standard of care for knee surgery.

¶11           By alleging Hughes was potentially negligent in his administration of

anesthesia to Lorenzo and that alone could have caused the injury, the Sanchezes have

presented facts suggesting another defendant might have had control of the mechanism of

injury. They have failed to present any evidence suggesting that, despite Hughes’s potential

responsibility, it was more probable than not that Levi, the orthopedic surgeon, nonetheless

had simultaneous control of the injury-causing instrumentality. See McKeever v. Phoenix

Jewish Cmty. Ctr., 92 Ariz. 121, 124, 374 P.2d 875, 877 (1962) (plaintiff failed to establish

defendant had exclusive control of swimming pool where decedent plaintiff drowned);

Stewart v. Crystal Coca-Cola Bottling Co., 50 Ariz. 60, 70, 68 P.2d 952, 956 (1937) (res


                                             7
ipsa did not apply where unexplained cause of accident might not have been defendant’s

responsibility); Byars, 24 Ariz. App. at 426, 539 P.2d at 540 (“On the evidence placed

before the trial court, it would have been sheer speculation to conclude that the cause of the

accident was one within defendants’ exclusive control.”).

¶12           Citing Jackson v. H.H. Robertson Co., 118 Ariz. 29, 574 P.2d 822 (1978),

the Sanchezes contend our supreme court has authorized application of the res ipsa doctrine

even when a claimant is unable to identify which of two parties controlled the

instrumentality causing injury. In Jackson, the court held that res ipsa could be applied

against multiple defendants even though it was “unclear which defendant was in control of

the injurious instrumentality at the time of the alleged negligence.” Id. at 33, 574 P.2d at

826.

¶13           However, we decline to view Jackson as a departure from the rule that a

claimant must identify, to a degree of probability, which of multiple defendants controlled

the instrumentality that injured him. Notably, the court in Jackson did not reject, but rather

reiterated, the general rule that a claimant must bring “circumstantial evidence supporting

the inference that the defendant(s) probably is responsible for the harm to the plaintiff.” Id.

at 32, 574 P.2d at 825. And, since Jackson, our appellate courts have repeatedly applied

the exclusive-control rule without correction from the supreme court. See, e.g., Ruiz v. Otis

Elevator, 146 Ariz. 98, 101, 703 P.2d 1247, 1250 (App. 1985) (holding res ipsa applies to

two defendants in joint control of instrumentality); Gaston v. Hunter, 121 Ariz. 33, 50, 588


                                              8
P.2d 326, 343 (App. 1978) (citing Jackson for proposition “it is possible to employ the

doctrine against multiple defendants in a proper case,” but refusing to apply it to defendant

drug companies when insufficient showing of control over injury-causing instrumentality).

¶14           Moreover, the facts in Jackson are readily distinguishable from those in this

case. There, Jackson could identify the instrumentality that caused his injury, two heavy

bundles of construction material falling from a high-rise structure. 118 Ariz. at 31, 574 P.2d

at 824.   But the Sanchezes did not specify the mechanism of Lorenzo’s injury—an

evidentiary void that, they concede, prevents them from determining whether it was Levi or

Hughes who acted negligently. And, in Jackson, the court permitted a res ipsa claim against

more than one defendant only because it was “clear that each defendant was in control of

the instrumentality at times which reasonably permit the inference that negligence of one or

both defendants resulted in harm to the plaintiff.” Id. at 33, 574 P.2d at 826 (emphasis

added).

¶15           In short, our supreme court has allowed application of a res ipsa theory against

more than one defendant when the claimant presents sufficient evidence from which a jury

could find that both defendants controlled the instrumentality that probably caused the

injury. Id. The Sanchezes make no such contention here. Rather, they maintain that either

Levi or Hughes controlled the instrumentality causing injury, and they provided no evidence

that either defendant probably controlled it.




                                                9
¶16           We acknowledge the challenge a plaintiff may face in attempting to identify

the correct defendant in a res ipsa case when more than one party could have been the

negligent actor. But, as seen, Arizona’s res ipsa doctrine was not designed to relieve litigants

of that particular responsibility, and our rules and statutes provide ample opportunity for

plaintiffs to conduct discovery to factually develop their cases. See, e.g., Ariz R. Civ. P.

26(a), (b) (entitling claimant to conduct discovery on “any matter, not privileged, which is

relevant to the subject matter involved in the pending action,” including through depositions,

interrogatories, and requests for production of documents); § 12-2603(C) (allowing plaintiff

to delay providing expert affidavit in medical malpractice case for “good cause shown”);

Ariz. R. Civ. P. 56(f) (trial court may defer ruling on motion for summary judgment “to

permit affidavits to be obtained or depositions to be taken or discovery to be had” if “it

appear[s] from the affidavits of a party opposing the motion that the party cannot for reasons

stated present by affidavit facts essential to justify the party’s opposition”).3

¶17           In sum, it was the Sanchezes’ burden to produce enough evidence either to

invoke the doctrine of res ipsa loquitur or otherwise make a prima facie case of medical

malpractice, and they failed to do so. See Nieman v. Jacobs, 87 Ariz. 44, 50, 347 P.2d 702,

706 (1959) (affirming judgment against plaintiffs who had neither established right to invoke

res ipsa nor made out prima facie negligence case); cf. Chiara v. Fry’s Food Stores of Ariz.,


       3
        During oral argument, the Sanchezes conceded that they had yet to conduct
depositions of either Dr. Levi or Dr. Hughes, discovery that could well have assisted them
in identifying the instrumentality causing injury and the defendant controlling it.

                                              10
Inc., 152 Ariz. 398, 401, 733 P.2d 283, 286 (1987) (acknowledging plaintiff has burden of

proof in slip-and-fall cases governed by “mode-of-operation” rule, just as in any other

negligence case; rule simply alters elements required to prove case). In attempting to rely

on the doctrine of res ipsa, the Sanchezes have neither shown Levi had exclusive control of

the injury-causing instrumentality nor, by showing vicarious liability or shared control,

invoked either of the recognized exceptions to “the logical rule . . . that the plaintiff does not

make out a preponderant case against either of two defendants by showing merely that the

plaintiff has been injured by the negligence of one or the other.” W. Page Keeton et al.,

Prosser and Keeton on the Law of Torts § 39, at 251 (5th ed. 1984). Indeed, the Sanchezes

have not argued that Levi is vicariously liable for Hughes’s potential negligence nor that Levi

and Hughes acted in concert or shared control of the instrumentalities that may have caused

Lorenzo’s injury. And we can find no legal authority or support in the record for either

proposition. See A.R.S. § 12-2506(D)(1); see also Spannaus v. Otolaryngology Clinic,

242 N.W.2d 594, 597 (Minn. 1976) (finding no joint enterprise between surgeon and

anesthesiologist during surgery and recognizing anesthesiologist’s autonomy).4


       4
        Nor has either party directed us to the controversial, landmark case of Ybarra v.
Spangard, 154 P.2d 687 (Cal. 1944). There, the California Supreme Court held that, even
without shared control or vicarious liability, when a plaintiff has received “unusual injuries”
while unconscious, the doctrine of res ipsa may be invoked against all potentially culpable
defendants. Id. at 691. That case has been criticized by some courts, e.g., Hoven v. Rice
Mem’l Hosp., 396 N.W.2d 569, 572-73 (Minn. 1986), and adopted by others. See Joan
Teshima, Annotation, Applicability of Res Ipsa Loquitur in Case of Multiple Medical
Defendants—Modern Status, 67 A.L.R. 4th 544, § 9 (1989 & Supp. 2007) (listing
jurisdictions following Ybarra). Arizona courts have yet to address the case, and neither

                                               11
¶18           Because the trial court did not err in finding the Sanchezes had failed to

establish the elements of res ipsa as to Levi and Tucson Orthopaedic, we affirm the grant of

summary judgment in their favor.



                                              ____________________________________
                                              PETER J. ECKERSTROM, Presiding Judge

CONCURRING:



____________________________________
PHILIP G. ESPINOSA, Judge



____________________________________
GARYE L. VÁSQUEZ, Judge




party has asked us to adopt its reasoning.

                                             12
