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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


              TAMMY MUNGUIA, et al., Plaintiffs/Appellants,

                                        v.

            COURTNEY RENE CRAMER, Defendant/Appellee.

                             No. 1 CA-CV 18-0272
                              FILED 4-16-2019


           Appeal from the Superior Court in Maricopa County
                  Nos. CV2012-016960; CV2016-092337
                The Honorable Daniel G. Martin, Judge

                                  AFFIRMED


                                   COUNSEL

Ahwatukee Legal Office, P.C., Phoenix
By David L. Abney
Counsel for Plaintiff/Appellant

Hill, Hall & Deciancio, PLC, Phoenix
By Thomas C. Hall, Diane M. Lucas, Christopher Robbins
Counsel for Defendant/Appellee
                      MUNGUIA, et al. v. CRAMER
                        Decision of the Court



                      MEMORANDUM DECISION

Judge James P. Beene delivered the decision of the Court, in which
Presiding Judge David D. Weinzweig and Judge Kent E. Cattani joined.


B E E N E, Judge:

¶1           Tammy Munguia (“Munguia”) appeals the superior court’s
judgment in favor of Courtney R. Logan, formerly known as Cramer
(“Logan”), as well as the court’s adverse rulings on her motion for
judgment as a matter of law, motion for a new trial, and related evidentiary
and procedural issues. For the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2             On November 4, 2010, a 2010 Nissan Versa driven by Logan
rear-ended a 2005 Jeep Liberty, in which Munguia was a front seat
passenger (“2010 accident”).1 Describing the accident, Logan testified that,
as the traffic was merging right into one lane due to construction, she
looked left to check her blind spot, watching for approaching cars, while
the Jeep Liberty in front of her started breaking. She hit the brake, turning
left to avoid a collision, yet bumped into the Jeep Liberty’s back-mounted
spare tire. She was driving between 5.8 and 7.3 miles per hour at contact
(“Delta-V”), a range agreed to by both accident reconstruction expert
witnesses. After the accident, Munguia exited the Jeep, walked to Logan,
said she was “fine” and that “accidents happen,” told a police officer she
and the Jeep’s driver were “okay,” and refused an ambulance. She did not
visit an emergency room or urgent care upon leaving the accident scene,
but instead drove the Jeep to pick up her children and go home.

¶3           At trial, Munguia testified she struck her shin during the 2010
accident, causing a bruise, and was “real sore [and] achy” later that day
with increasing lower back pain the next day. Expert witnesses agreed
Munguia suffered a bruise, possibly a short-term muscle strain. Munguia
began chiropractic treatment a few days later.




1      The Jeep’s driver, Francine Bejarano, was dismissed from the lawsuit
in June 2016 pursuant to a joint stipulation.


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                       MUNGUIA, et al. v. CRAMER
                         Decision of the Court

¶4            On December 20, 2010, Munguia visited Dr. Fields, who
examined her, recorded her weight, and took a magnetic resonance imaging
(“MRI”) of her lower back. The MRI revealed several intervertebral disc
protrusions in her lumbar spine, which led Dr. Fields to conclude the 2010
accident caused Munguia’s herniated nucleus pulposus (“herniated discs”).
On January 6, 2011, Dr. Fields operated on Munguia, giving her two
epidural injections.

¶5           Munguia was involved in another, more serious car accident
in May 2011. She was driving when a vehicle hit her car’s passenger side.
Her vehicle was towed and the other vehicle’s entire front was damaged.
Munguia testified at trial that she recovered from the 2011 accident to her
pre-accident condition. In addition to the 2010 and 2011 accidents,
Munguia had previously been involved in another car accident (in 2005),
but had suffered only minor injuries, from which she had fully recovered.

¶6            In September 2011, Dr. Ehteshami, a board-certified
orthopedic spine surgeon, performed a posterior spinal fusion operation of
Munguia’s lower back. Prior to the operation, Munguia did not inform Dr.
Ehteshami about the 2011 accident. Munguia filed a medical malpractice
lawsuit against Dr. Ehteshami in June 2016, which was dismissed in
September 2017. Dr. Ehteshami was, however, included in this lawsuit as
a nonparty at fault for the jury to consider his alleged medical negligence
“[i]n assessing percentages of fault.” See Cramer v. Starr, 240 Ariz. 4, 9, ¶ 18
(2016) (quoting Ariz. Rev. Stat. (“A.R.S.”) § 12-2506(B)).

¶7            The court held an 11-day jury trial. Munguia requested $32.5
million in damages. Her damages expert testified the 2010 accident caused
her $7.30 to $7.40 million in total life-time economic damages. The jury
rendered a defense verdict in favor of Logan. Munguia filed a motion for
judgment as a matter of law, or alternatively for a new trial, which was
denied and followed by an entry of judgment against Munguia in the
amount of $97,470.39. Munguia timely appealed. We have jurisdiction
pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S. §§
12-120.21(A)(1) and -2101(A)(1).

                               DISCUSSION

¶8           Munguia argues the superior court erred by: 1) denying her
motions for judgment as a matter of law and for a new trial because she
presented uncontradicted evidence proving all four elements of negligence;
2) allowing Logan’s biomechanical expert Dr. Peles to testify to specific
causation of Munguia’s injuries, instead of merely to general causation,



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                        MUNGUIA, et al. v. CRAMER
                          Decision of the Court

prejudicing Munguia; 3) failing to exclude evidence regarding the 2005 and
2011 car accidents, which was “highly prejudicial” to Munguia because no
expert witness testified to any causative relation of these accidents to
Munguia’s injuries and because Logan failed to notify any related nonparty
at fault; and 4) permitting the jury to consider the alleged fault of a nonparty
spinal surgeon Dr. Ehteshami without Logan’s full compliance with the
notice process.

     I. Substantial Evidence Supported the Jury’s Defense Verdict.

¶9            Munguia argues that she presented uncontradicted evidence
of negligence and negligence per se pursuant to A.R.S. §§ 28-701(A)
and -730(A), and demonstrated injury, causation, and damages. Munguia
contends the jury’s defense verdict was not supported by the evidence, was
contrary to law, and the superior court, thus, erred by not granting her
motions for judgment as a matter of law or for a new trial.

¶10            We will affirm a jury verdict if it is supported by substantial
evidence, which we view in the light most favorable to sustaining the
verdict. Warrington v. Tempe Elementary Sch. Dist. No. 3, 197 Ariz. 68, 69, ¶ 4
(App. 1999). Substantial evidence is proof that permits reasonable persons
to reach the jury’s result. In re Estate of Pouser, 193 Ariz. 574, 579, ¶ 13 (1999).
We review the denial of a motion for new trial based on the verdict being
against the weight of the evidence for an abuse of discretion, Dawson v.
Withycombe, 216 Ariz. 84, 95, ¶ 25 (App. 2007), which occurs when “the
record fails to provide substantial evidence to support the trial court’s
finding,” Flying Diamond Airpark, LLC v. Meienberg, 215 Ariz. 44, 50, ¶ 27
(App. 2007) (citation omitted). “The credibility of [any] witness’ testimony
and the weight it should be given are issues particularly within the province
of the jury.” Estate of Reinen v. N. Ariz. Orthopedics, Ltd., 198 Ariz. 283, 287,
¶ 12 (2000) (citation omitted); see also Logerquist v. McVey, 196 Ariz. 470, 488,
¶ 52 (2000) (“Questions about the accuracy and reliability of a witness’
factual basis, data, and methods go to the weight and credibility of the
witness’ testimony and are questions of fact.”).

¶11            Here, the record included substantial evidence supporting the
jury verdict. Logan offered two expert witnesses, including a board-
certified orthopedic spine surgeon with over 25 years of practical
experience and an accident reconstructionist. The spine surgeon, Dr. Maric,
testified that “the only injury that I can confirm that occurred as a result of
[the 2010] accident was a shin contusion, which is what was diagnosed,
lower leg contusion . . . a bruise.” He further declared that, although the
bruise was documented, there was “no treatment for it.” Dr. Maric found


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                       MUNGUIA, et al. v. CRAMER
                         Decision of the Court

“no objective evidence that [Munguia] injured any part of her spine as a
result of this accident.” Dr. Maric opined that a trauma caused by two
herniated discs would have produced an immediate physiological response
and that Munguia’s lack of complaints of immediate pain suggested no disc
herniation occurred during the 2010 accident. He further opined the
protrusions on Munguia’s MRI scan were not symptomatic as she “did not
have specific radicular complaints . . . . Instead, she had these vague
diffused complaints that really didn’t fit any specific nerve root
distribution.” Dr. Maric determined that Munguia had no physical
disorder from the accident and that no physiological treatment would help
her.

¶12            The accident reconstructionist, Dr. Joseph Peles, had a Ph.D.
in bioengineering with a specialty in injury biomechanics, and he
specialized in spine injuries and rear-end collisions. Lohmeier v. Hammer,
214 Ariz. 57, 64-65, ¶ 29 (App. 2006). Dr. Peles opined the 2010 accident did
not produce a force level sufficient to produce disc herniations because the
potential for compression remained within a tolerance range incapable of
producing disc herniation. Dr. Peles agreed that Munguia suffered a bruise
as a result of the accident, although “it was just more of a reflex reaction”
because the forward rebound of the lower body was very minor.2

¶13           Dr. Fields, Munguia’s treating orthopedic spine surgeon,
testified that the 2010 accident caused Munguia’s herniated discs. Dr.
Fields also testified, however, that in determining causation he must rely
on the patient’s subjective history, which can sway causation determination
“in a different direction.” Dr. Fields also confirmed that disc herniations
can be caused by “a number of different things” and that he could not prove
Munguia’s herniations did not exist before the accident because an MRI
scan does not indicate when the herniations started. Dr. Fields noted that
Munguia was overweight and agreed that her weight could have led to a

2       Munguia’s expert witness for traffic accident reconstruction Michael
Broughton did not testify regarding any of the alleged injuries, nor would
he opine on any injury mechanisms, rebound motion, or any other
biomechanical analysis, as it was outside the scope of his qualifications. Dr.
Hinrichs, Munguia’s expert witness on biomechanics of injuries, testified
that the 2010 accident could have caused Munguia’s herniated discs
because the seat bar in Munguia’s car seat would function like a weapon
during a rear-end collision. However, Dr. Hinrichs provided no support
for his opinion other than a study performed in the 1990s on an older type
of car seat, which had contributed to a different kind of injury.



                                      5
                       MUNGUIA, et al. v. CRAMER
                         Decision of the Court

herniated disc without an acute injury. Dr. Peles criticized Dr. Fields’s
opinion because he never considered the severity of the accident and relied
only on Munguia’s statements.

¶14            Dr. Dennis Crandall, Munguia’s expert witness and a board-
certified academic orthopedic spine surgeon, testified that it was “hard to
say” whether the minor disc bulge shown on the December 20, 2010 MRI
could have been caused by the 2010 accident or was merely a natural
finding, describing the disc bulge as “so small.” Dr. Crandall opined in his
only report (dated May 20, 2015), that the 2010 accident resulted in back
and leg pain, and that the herniated discs “were brought about by this
motor vehicle accident because the MRI scan shows the discs and the
symptoms that correlate precisely with those discs [beginning] right away
after the accident.” In his testimony, Dr. Crandall noted that he relied on
Dr. Fields’s assessment of causation of Munguia’s herniated discs.

¶15            Because the record includes substantial evidence supporting
the jury verdict, see Logerquist, 196 Ariz. at 488, ¶ 52,3 Munguia’s argument
that the court erred by denying her request for judgment as a matter of law
also fails. See Ariz. R. Civ. P. 50(a) (stating judgment as a matter of law
should be granted “[i]f . . . a reasonable jury would not have a legally
sufficient evidentiary basis to find for the party on that issue”).

    II.   The Biomechanical Expert’s Testimony Was Not a Specific
          Medical Opinion.

¶16          Munguia also argues the superior court erred by allowing
Logan’s biomechanical expert Dr. Peles to testify to specific causation of
Munguia’s injuries, instead of opining on general causation, and that his
testimony prejudiced Munguia.

¶17           In Arizona, “it is not necessary that an expert witness be a
medical doctor in order to offer testimony regarding the causation of
physical injuries so long as the trial court has properly determined that the
expert has specialized knowledge that will assist the jury in its resolution


3      We need not reach whether the alleged conduct represented
negligence per se under the traffic laws. The jury was instructed to
“determine whether that negligence [per se] was a cause of injury to Plaintiff
Tammy Munguia.” Without deciding whether substantial evidence
supported a finding of negligence per se, the record provided substantial
evidence for the jury to conclude the 2010 accident did not cause Munguia
a compensable injury. See Warrington, 197 Ariz. at 69, ¶ 4.


                                      6
                       MUNGUIA, et al. v. CRAMER
                         Decision of the Court

of that issue.” Lohmeier, 214 Ariz. at 64, ¶ 28. An expert’s “degree of
qualification goes to the weight given the testimony, not its admissibility.”
State v. Davolt, 207 Ariz. 191, 210, ¶ 70 (2004).

¶18            Dr. Peles provided opinions on general causation within the
scope of his qualifications as a biomechanical expert, and the weighing of
those opinions was within the jury’s province. See Logerquist, 196 Ariz. at
488, ¶ 52. Dr. Peles considered the seat design in Munguia’s vehicle and
other factors and expressly stated “[t]here would not be a mechanism [of
injury] or a force level that would produce disc herniations in this accident.”
He explained his conclusion in detail, including why it applied also to
Munguia’s weakened (desiccated) discs and her position in the vehicle at
the time of the accident. Dr. Peles testified that standing up from a chair
and ordinary activities of daily life, such as jogging, exert forces of greater
magnitude than caused by this rear-end collision.4 When asked what
caused Munguia’s disc herniations, Dr. Peles stated that was beyond the
scope of his study.

¶19            Although Munguia argues Dr. Peles was “unqualified to
diagnose what caused a specific person’s medical injuries” and that he is
not a licensed medical doctor and never examined Munguia or even
reviewed her MRI scans, Dr. Peles’s opinions remained within the scope of
his qualification and provided relevant information. See Lohmeier, 214 Ariz.
at 64, ¶ 28; Logerquist, 196 Ariz. at 488, ¶ 52.

    III. The Evidence Regarding the 2005 and 2011 Car Accidents Was
         Relevant and Non-Prejudicial.

¶20           Munguia further argues that the superior court improperly
permitted Logan to present evidence regarding the 2005 and 2011 accidents.
She asserts that it was “highly prejudicial” for Logan to assert that those
accidents caused Munguia’s injuries without designating nonparties at
fault or providing expert testimony on causation. Logan argues she
introduced the evidence “as an alternative explanation for Munguia’s
secondary gain behavior and to question her credibility.”

¶21          In her opening brief, Munguia conceded no prejudicial error
occurred regarding evidence pertaining to the 2005 accident. The issue is,

4      In crash tests studies at low severity impacts—within the Delta-Vs of
this accident’s range—researchers utilize volunteers because they are
confident no injury mechanism exists regarding biomechanics of the human
spine to cause disc herniations to a volunteer.



                                      7
                       MUNGUIA, et al. v. CRAMER
                         Decision of the Court

thus, waived on appeal. See Polanco v. Indus. Comm’n, 214 Ariz. 489, 491,
¶ 6, n.2 (App. 2007) (holding that unsupported, undeveloped arguments
are waived on appeal); State v. Carver, 160 Ariz. 167, 175 (1989) (“Failure to
argue a claim usually constitutes abandonment and waiver of that claim.”).

¶22            Regarding the 2011 accident, the superior court ordered,
before trial, that “neither party shall convey to the Jury either directly or
indirectly, any evidence or argument as to lawsuits arising from [the 2005
and 2011] accidents but may present evidence subject to trial objection as to
the existence of those accidents and any injuries that may have occurred
therefrom that impact Plaintiff’s medical condition.” The evidence, as
limited by the superior court, was properly admitted as it was relevant to
Munguia’s medical condition, credibility, and secondary-gain behavior,
including her failure to inform Dr. Ehteshami about the 2011 accident and
because she testified she recovered from the 2011 accident to her pre-2011-
collision condition, while also claiming that her headaches returned after
the 2011 collision. See State v. Holden, 88 Ariz. 43, 54 (1960) (“[A] party
against whom a witness is produced has a right to show everything which
may in the slightest degree affect [the witness’s] credibility.”); see also
Gemstar Ltd. v. Ernst & Young, 185 Ariz. 493, 506 (1996) (“We will not disturb
a trial court’s rulings on the exclusion or admission of evidence unless a
clear abuse of discretion appears and prejudice results.”).

¶23            Moreover, Logan was not arguing the 2011 accident caused
any part of Munguia’s injuries, as an affirmative defense or otherwise.
Therefore, she was not obligated to designate any nonparty at fault related
to the 2011 accident. See A.R.S. § 12-2506(B) (“Negligence or fault of a
nonparty may be considered . . . if the defending party gives notice before
trial, in accordance with requirements established by court rule, that a
nonparty was wholly or partially at fault.”). Contrary to Munguia’s
argument, Logan was also not required to introduce any expert witnesses’
opinions on causation regarding the 2011 accident. See Rasor v. Nw. Hosp.
LLC, 244 Ariz. 423, 425, ¶ 7 (App. 2018) (“[U]nless a causal relationship is
readily apparent to the trier of fact, expert medical testimony normally is
required to establish proximate cause in a medical negligence case.”)
(quotation omitted).




                                      8
                       MUNGUIA, et al. v. CRAMER
                         Decision of the Court

    IV.   The Issue of Logan’s Compliance with the Requirements of
          A.R.S. § 12-2603 Is Moot.

¶24           Munguia next argues the superior court erred by enabling the
jury to consider an alleged fault of a nonparty spinal surgeon without full
compliance with the expert-witness designation process.5

¶25           Whether Logan fully complied with procedural rules in
providing a preliminary expert witness opinion regarding Dr. Ehteshami’s
standard of care for the jury to apportion fault for Munguia’s injuries
between Dr. Ehteshami and Logan has no practical effect or relevance to the
court’s finding that substantial evidence supported the jury’s defense
verdict and ruling on Munguia’s motion for a new trial. This issue is moot.
See Arpaio v. Maricopa Cty. Bd. of Supervisors, 225 Ariz. 358, 361, ¶ 7 (App.
2010) (“A case becomes moot when an event occurs which would cause the
outcome of the appeal to have no practical effect on the parties.”) (quotation
omitted); see also Kondaur Capital Corp. v. Pinal County, 235 Ariz. 189, 193,
¶¶ 8-9 (App. 2014) (holding that plaintiff’s claim against the sheriff’s
office’s handling of a writ of restitution was resolved by the property
occupants’ eviction).

     V.   Attorneys’ Fees and Costs on Appeal.

¶26          Because neither party requests that we award attorneys’ fees
incurred on appeal, we award none. Logan, however, is entitled to recover
her costs on appeal pursuant to A.R.S. § 12-342 upon compliance with
Arizona Rules of Civil Appellate Procedure 21.




5       Munguia also waived the issue because she failed to develop this
argument as part of her petition for special action to our supreme court filed
in this case in 2016. See Cramer v. Starr, 240 Ariz. 4, 8, ¶ 14, n.1 (2016); see
also DeElena v. S. Pac. Co., 121 Ariz. 563, 572 (1979) (issues not argued on
appeal were treated as abandoned).



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                    MUNGUIA, et al. v. CRAMER
                      Decision of the Court

                            CONCLUSION

¶27         For the reasons stated above, we affirm the judgment in favor
of Logan.




                       AMY M. WOOD • Clerk of the Court
                       FILED: AA




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