                                   IN THE
             ARIZONA COURT OF APPEALS
                               DIVISION ONE


   DALTON SCOTT STAFFORD and KRISTINE MAJOR STAFFORD,
   Parents of JESSE TREY STAFFORD, Deceased, Plaintiffs/Appellants,

                                       v.

  ANNE M. BURNS, M.D. and JOHN DOE BURNS, husband and wife;
  EMPOWER EMERGENCY PHYSICIANS, P.C., Defendants/Appellees.

                            No. 1 CA-CV 15-0476
                              FILED 11-29-2016


           Appeal from the Superior Court in Maricopa County
                          No. CV2013-000019
               The Honorable John Christian Rea, Judge

             JURISDICTION ACCEPTED; RELIEF DENIED


                                 COUNSEL

Grysen & Associates, Spring Lake, MI
By B. Elliott Grysen
Co-Counsel for Plaintiffs/Appellants

Knapp & Roberts, P.C., Scottsdale
By David L. Abney
Co-Counsel for Plaintiffs/Appellants

Jones Skelton & Hochuli, P.L.C., Phoenix
By Eileen Dennis GilBride, Cristina M. Chait
Counsel for Defendants/Appellees
                        STAFFORD v. BURNS et al.
                           Opinion of the Court



                                OPINION

Presiding Judge Kenton D. Jones delivered the Opinion of the Court, in
which Judge Randall M. Howe and Judge Donn Kessler joined.


J O N E S, Judge:

¶1             Dalton and Kristine Stafford (the Staffords) appeal the trial
court’s orders denying their motions for new trial and for relief from
judgment following a jury verdict in favor of Appellees (collectively, Dr.
Burns) on the Staffords’ claims for medical malpractice and wrongful death
after their son, Jesse, died of a methadone overdose.

¶2            The Staffords argue the trial court erred in instructing the
jury, pursuant to Arizona Revised Statutes (A.R.S.) section 12-572(A),1 that
the Staffords bore the burden of proof by clear and convincing evidence
because, they contend, Dr. Burns did not provide medical care “in
compliance with” the Emergency Medical Treatment and Active Labor Act
(EMTALA). See 42 U.S.C.A. § 1395dd (West). As set forth below, we hold,
as relevant here, the heightened standard of proof for claims against a
health professional set forth in A.R.S. § 12-572(A) applies whenever the acts
or omissions plaintiff contends were deficient were provided in the course
of evaluating and treating a patient in a hospital emergency department.

¶3           The Staffords also argue the court abused its discretion in
denying their motion for new trial based upon various administrative and
evidentiary rulings, for which we find no error.

¶4            Finally, the Staffords argue the trial court erred in imposing
sanctions pursuant to Arizona Rule of Civil Procedure 68(g) because Dr.
Burns’ pretrial offer of judgment was invalid in that it was not made in good
faith. We do not reach the merits of the Staffords’ contention because Rule
68(g) contains no such good faith requirement, and we decline to impose
one in contravention of the rule’s plain language and purpose.




1     Absent material changes from the relevant date, we cite a statute’s
current version.


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                         STAFFORD v. BURNS et al.
                            Opinion of the Court

¶5           For the reasons stated below, we treat the Staffords’ appeal as
a petition for special action, accept jurisdiction, and deny relief.
Accordingly, the judgment and orders are affirmed.

                 FACTS2 AND PROCEDURAL HISTORY

¶6            In the early morning hours of February 5, 2012, Jesse
presented at the emergency room of St. Joseph’s Hospital after having
ingested an unknown quantity of methadone. After several hours of
testing, evaluation, and monitoring for a possible methadone overdose, Dr.
Burns took over Jesse’s care until he was discharged around 1:00 p.m. Jesse
was found dead the following day.

¶7            In January 2013, the Staffords filed a complaint against Dr.
Burns, asserting she negligently caused Jesse’s death by wrongfully
determining his condition was stable and discharging him prematurely. In
response, Dr. Burns asserted she complied with the standard of care and
presented evidence suggesting Jesse ingested additional methadone after
his discharge that ultimately caused his death.

¶8          After a twelve-day trial, the jury returned a defense verdict.
The Staffords timely filed motions for new trial and for relief from
judgment, which were denied. This appeal followed.

                               JURISDICTION

¶9             This Court has an independent duty to examine whether it
has jurisdiction to consider an appeal. Stafford v. Farmers Ins. of Ariz., 191
Ariz. 464, 465 (App. 1997) (citing Davis v. Cessna Aircraft Corp., 168 Ariz. 301,
304 (App. 1991)). Our appellate jurisdiction is generally limited to issues
arising from final judgments disposing of all claims and all parties. Musa
v. Adrian, 130 Ariz. 311, 312 (1981). A notice of appeal filed before entry of
a signed final judgment or resolution of a time-extending motion is a nullity
unless and until the final order enters. See ARCAP 9(c); Craig v. Craig, 227
Ariz. 105, 107, ¶ 13 (2011) (citing Smith v. Ariz. Citizens Clean Elections
Comm’n, 212 Ariz. 407, 415, ¶ 39 (2006), and Engel v. Landman, 221 Ariz. 504,
509, ¶ 13 (App. 2009)); Tripati v. Forwith, 223 Ariz. 81, 84, ¶ 15 (App. 2009).


2      We view the facts and all inferences to be drawn therefrom in the
light most favorable to sustaining the jury’s verdict and resulting judgment
for costs. Hyatt Regency Phx. Hotel Co. v. Winston & Strawn, 184 Ariz. 120,
123 (App. 1995) (citing Bradshaw v. State Farm Mut. Auto. Ins., 157 Ariz. 411,
414 (1988), and Rhue v. Dawson, 173 Ariz. 220, 223 (App. 1992)).


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                         STAFFORD v. BURNS et al.
                            Opinion of the Court

¶10            Here, the Staffords filed two time-extending motions. See
ARCAP 9(e)(1)(D) (motion for new trial), (E) (motion for relief from
judgment). The trial court entered a signed order denying the motion for
relief from judgment and denied the motion for new trial in an unsigned
minute entry order. Although this Court re-vested jurisdiction in the trial
court for the purpose of obtaining a signed, final order corresponding to the
minute entry denying the motion for new trial, see Eaton Fruit Co. v. Cal.
Spray-Chem. Corp., 102 Ariz. 129, 130 (1967), no such order has been issued.
Accordingly, we lack appellate jurisdiction over this appeal.

¶11           Although we do not have appellate jurisdiction, we may, in
our discretion, consider the appeal as a petition for special action. See Grand
v. Nacchio, 214 Ariz. 9, 17, ¶ 20 (App. 2006) (citing Danielson v. Evans, 201
Ariz. 401, 411, ¶ 35 (App. 2001), and Lloyd v. State Farm Mut. Auto. Ins., 189
Ariz. 369, 375 (App. 1996)); see also A.R.S. § 12-120.21(A)(4) (granting court
of appeals jurisdiction to hear special actions “without regard to its
appellate jurisdiction”). We elect to do so here. The Staffords present at
least two issues of first impression and statewide importance likely to recur.
See Lind v. Superior Court, 191 Ariz. 233, 236, ¶ 10 (App. 1998) (citing Moss v.
Superior Court, 175 Ariz. 348, 350 (App. 1993)). Additionally, were we to
dismiss the appeal, nothing that may occur in the trial court would likely
alter the disposition of the issues raised. Grand, 214 Ariz. at 18, ¶ 24. Not
wanting to elevate form over substance, we exercise our discretion to treat
this appeal as a petition for special action and accept jurisdiction but, as set
forth below, deny relief.

                                 DISCUSSION

I.     Application of A.R.S. § 12-572(A)

¶12            A plaintiff must generally prove the elements of his medical
malpractice claim by a preponderance of the evidence. See Harvest v. Craig,
195 Ariz. 521, 523, ¶ 10 (App. 1999) (citing Thompson v. Sun City Cmty. Hosp.,
Inc., 141 Ariz. 597, 608 (1984)). In 2009, however, our legislature adopted
A.R.S. § 12-572(A), which heightened the burden of proving a malpractice
claim against “a health professional . . . who provides or who is consulted
to provide services to a patient of a licensed hospital in compliance with
[EMTALA]” to clear and convincing evidence. EMTALA is a federal statute
enacted to address the growing concern that hospitals were routinely
refusing emergency medical treatment to individuals unable to pay for
services. See Eberhardt v. City of L.A., 62 F.3d 1253, 1255 (9th Cir. 1995) (citing
H.R. Rep. No. 241, 99th Cong., 1st Sess. (1986), reprinted in 1986
U.S.C.C.A.N. 726-27); Scottsdale Healthcare, Inc. v. Ariz. Health Care Cost


                                        4
                          STAFFORD v. BURNS et al.
                             Opinion of the Court

Containment Sys. Admin., 206 Ariz. 1, 6 n.6, ¶ 20 (2003) (citing Bryant v.
Adventist Health Sys./W., 289 F.3d 1162, 1165 (9th Cir. 2002)). The Staffords
argue the trial court erred in instructing the jury on the clear and convincing
burden of proof set forth in A.R.S. § 12-572(A) because, they contend, Dr.
Burns was not providing services “in compliance with EMTALA” as
another physician had already performed the medical screening and
determined Jesse did not have an emergency medical condition. In
response, Dr. Burns argues A.R.S. § 12-572(A) applies to “all emergency
room services.”

¶13            Although we review a trial court’s denial of a motion for new
trial and its decision to give a jury instruction for an abuse of discretion, we
review de novo whether jury instructions accurately state the law. Delbridge
v. Salt River Project Agric. Improvement & Power Dist., 182 Ariz. 46, 53 (App.
1994) (citing Suciu v. AMFAC Distrib. Corp., 138 Ariz. 514, 520 (App. 1983));
State v. Garcia, 224 Ariz. 1, 18, ¶ 75 (2010) (citing State v. Martinez, 218 Ariz.
421, 432, ¶ 49 (2008)); see also State v. Rios, 217 Ariz. 249, 250, ¶ 5 (App. 2007).
The interpretation and application of statutes also present questions of law
which we review de novo. City of Phx. v. Glenayre Elecs., Inc., 240 Ariz. 80,
84, ¶ 8 (App. 2016) (citing First Fin. Bank, N.A. v. Claassen, 238 Ariz. 160, 162,
¶ 8 (App. 2015)).

¶14           The heightened burden of proof of A.R.S. § 12-572(A) applies
where services are provided “in compliance with EMTALA.” EMTALA
applies to any individual who comes to a hospital’s emergency department
for treatment.3 42 U.S.C.A. § 1395dd(a). Under EMTALA, the hospital is
required to provide appropriate medical screening to determine if an
emergency medical condition exists.4 Id. If the patient has an emergency

3      A person “comes to the emergency department” when he “present[s]
at a hospital’s dedicated emergency department . . . and requests
examination or treatment for a medical condition,” “present[s] on hospital
property . . . other than the dedicated emergency department, and requests
examination or treatment for what may be an emergency medical
condition,” or “[i]s in a ground or air ambulance owned and operated by
the hospital for purposes of examination and treatment for a medical
condition at a hospital’s dedicated emergency department.” 42 C.F.R.
§ 489.24(b).
4      An “emergency medical condition” is a condition “manifesting itself
by acute symptoms of sufficient severity (including severe pain, psychiatric
disturbances and/or symptoms of substance abuse) such that the absence



                                         5
                          STAFFORD v. BURNS et al.
                             Opinion of the Court

medical condition, the hospital must either provide “such further medical
examination and such treatment as may be required to stabilize the medical
condition,” or, if safe and appropriate, transfer the patient to another
facility for stabilizing care.5 42 U.S.C.A. § 1395dd(b)(1). For purposes of
EMTALA, a patient is “stabilized” when “no material deterioration of the
condition is likely, within reasonable medical probability, to result from or
occur during the transfer of the individual from a facility.” 42 U.S.C.A.
§ 1395dd(e)(3)(B).

¶15            The gamut of services that may be necessary to comply with
EMTALA cannot readily be distilled into a universally applicable and finite
list, and therefore, the phrase cannot be read narrowly. To adopt the
Staffords’ view, the burden of proof against the health care provider would
shift from clear and convincing to a preponderance of the evidence the
instant: (1) the screening process is completed and reveals the patient does
not have an “emergency medical condition” within the meaning of
EMTALA, or (2) a patient is stabilized to the point that his condition would
not deteriorate during a transfer. This sort of interpretation is not practical
in the context of a person seeking emergency medical care. The evaluation
and treatment of a medical condition is necessarily a fluid process, whereby
a patient’s status as serious or stable may change from moment to moment.
This is particularly true where the condition qualifies as an emergency
under EMTALA — manifesting through acute symptoms, severe pain, and
the risk of serious dysfunction or bodily impairment.

¶16           We do not read EMTALA to relieve the hospital emergency
department from re-screening, re-evaluating, and even possibly re-treating
a patient if his condition changes after an initial status determination.
Indeed, federal courts have held a hospital’s duty under EMTALA can
continue up to and even after a patient is admitted for inpatient care. See,

of immediate medical attention could reasonably be expected to result in —
(i) [p]lacing the health of the individual . . . in serious jeopardy; (ii) [s]erious
impairment to bodily functions; or (iii) [s]erious dysfunction of any bodily
organ or part.” 42 C.F.R. § 489.24(b); see also 42 U.S.C.A. § 1395dd(e)(1)(A).

5      Alternatively, if it is clear from the nature of the person’s request for
services that the medical condition is not of an emergency nature, “the
hospital is required only to perform such screening as would be appropriate
for any individual presenting in that manner, to determine that the
individual does not have an emergency medical condition.” 42 C.F.R.
§ 489.24(c). The Staffords do not argue Jesse’s request for care falls under
this exception.


                                         6
                         STAFFORD v. BURNS et al.
                            Opinion of the Court

e.g., Bryant, 289 F.3d at 1168 (concluding EMTALA duty ends when a
patient is admitted in good faith for inpatient care); Thornton v. Sw. Detroit
Hosp., 895 F.2d 1131, 1134 (6th Cir. 1990) (“[O]nce a patient is found to suffer
from an emergency medical condition in the emergency room, she cannot
be discharged until the condition is stabilized, regardless of whether the
patient stays in the emergency room.”); see also 42 C.F.R. § 489.24(a)(1)(ii),
(d)(2)(i).

¶17           We reject the Staffords’ argument that EMTALA was never
implicated during Jesse’s stay in the emergency department because he was
not diagnosed with an emergency medical condition. First, the Staffords
do not identify any record evidence establishing that fact. Furthermore,
“emergency medical condition” is defined, specifically, to include
“symptoms of substance abuse.” 42 C.F.R. § 489.24(b). Viewing the
evidence in the light most favorable to sustaining the verdict, as we are
required to do, we can reasonably infer otherwise from the evidence that
the original emergency room physician chose to keep Jesse for observation
and testing over the course of several hours, rather than immediately
authorizing his discharge.

¶18            Second, EMTALA applies whenever a person comes to the
hospital “for what may be an emergency medical condition.” 42 C.F.R.
§ 489.24(b) (emphasis added). Jesse came to the hospital for this precise
purpose — seeking evaluation and treatment of what may have been an
emergency medical condition — after ingesting an unknown quantity of
methadone, a dangerous narcotic drug. See A.R.S. § 13-3401(20)(k). He was
kept in the emergency department for almost twelve hours for observation,
testing, and evaluation of physical and psychological concerns — all
services required by EMTALA to screen for and stabilize a potentially life-
threatening medical condition. See supra ¶ 14. If Jesse was misdiagnosed
or discharged prematurely, as the Staffords contend, those actions occurred
in the course of providing EMTALA-mandated services, A.R.S. § 12-572(A)
is directly applicable, and the Staffords were required to prove their claims
by clear and convincing evidence. The Staffords cannot both have and eat
their proverbial cake by arguing the very acts that define the scope of the
protections afforded by A.R.S. § 12-572(A) — screening and treatment —
remove Dr. Burns from its protections.

¶19          A broader interpretation is also consistent with the statute’s
purpose to provide a more inviting legal environment for emergency
medical providers, see Ariz. S. Fact Sheet, S.B. 1018 (1st Reg. Sess. Jun. 15,
2009) (noting the heightened burden of proof was recommended “to
address the state’s shortage of emergency and trauma physicians and the


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                         STAFFORD v. BURNS et al.
                            Opinion of the Court

problem of access to emergency care”); Ariz. Emergency Med. Servs. Access
Task Force Rep., at 2-3, 15-16 (2006), https://www.acep.org/
content.aspx?id=5258, as well as the section heading adopted by the
legislature: “Burden of proof for treatment in emergency departments or
rendered by on-call providers,” see Bruce v. Charles Roberts Air Conditioning,
166 Ariz. 221, 225 (App. 1990) (noting that although section headings are
not part of the law, they may aid in interpreting otherwise ambiguous
language). Although the legislature certainly could have described the
extent of the liability protection contained within A.R.S. § 12-572(A)
without reference to EMTALA, as the Staffords suggest it should have, the
intent of the statute is clear, and the statutory language does not preclude a
reasonable interpretation consistent with that intent.

¶20            Finally, the Staffords argue A.R.S. § 12-572(A) does not apply
because they do not specifically reference EMTALA in their pleadings, they
have never asked for a determination whether Dr. Burns complied with —
or violated — EMTALA, and they have no direct right of action against Dr.
Burns for an EMTALA violation.6 These facts are irrelevant. The reference
to EMTALA within A.R.S. § 12-572(A) defines the scope of the liability
protection. Under the statute, the relevant inquiry is whether the acts or
omissions the plaintiff contends were deficient were provided in the course
of evaluating and treating a patient in a hospital emergency department.
That is clearly the case here, and the clear and convincing standard
articulated in A.R.S. § 12-572(A) applies. Accordingly, we find no error in
the trial court’s instructions to the jury regarding the burden of proof.




6       The Staffords cite Moses v. Providence Hospital & Medical Centers, Inc.,
561 F.3d 573 (6th Cir. 2009), and Roberts ex rel. Johnson v. Galen of Virginia,
Inc., 325 F.3d 776 (6th Cir. 2003), to support their argument that EMTALA
does not apply to their claims. In both cases, the Sixth Circuit Court of
Appeals held that stabilizing treatment is required only if the medical
providers “actually recognize that the patient has an emergency medical
condition.” Moses, 561 F.3d at 582-85; Roberts, 325 F.3d at 786-87. Those
holdings are relevant to whether a plaintiff can maintain a federal cause of
action for violation of EMTALA, but inapplicable to the question presented
here — whether the actions forming the basis of the Staffords’ civil
negligence claim were performed by Dr. Burns “in compliance with
EMTALA.”


                                       8
                        STAFFORD v. BURNS et al.
                           Opinion of the Court

II.    Jury Misconduct

¶21           The Staffords next argue they were entitled to a new trial
because Juror 10 violated the admonition not to discuss the case outside of
the jury room. We review a decision to deny a new trial based upon alleged
jury misconduct for an abuse of discretion. State v. Fitzgerald, 232 Ariz. 208,
210, ¶ 10 (2013) (quoting State v. Hall, 204 Ariz. 442, 447, ¶ 16 (2003)).

¶22           Throughout the twelve-day trial, the jurors were admonished
not to discuss the case outside of the jury room. At the end of the eleventh
day, the court reporter advised the trial court she had been in the elevator
with several jurors when she heard Juror 10 say “something like — if the
parameters were set at 11 to 24, why didn’t the alarm go off.” The court
reporter told the jurors not to talk about the case, and the conversation
ended. When questioned by the court, Juror 10 remembered making the
statement in the elevator and confirmed no other discussion occurred. He
denied having any other conversations about the case outside the jury
room. The Staffords were given an opportunity to question Juror 10 further
but declined to do so.

¶23           The Staffords did, however, move to excuse Juror 10 from
further service. After concluding the comment “d[id]n’t show that he’s
made up his mind, . . . [and was] the exact kind of thing [a juror] would say
in deliberations,” the trial court denied the motion. In denying the
Staffords’ motion for new trial on the basis of jury misconduct, the court
reiterated that:

       while the court was upset with the jury upon receiving the
       . . . information [regarding Juror 10’s elevator comment], after
       interviewing the juror and learning the details and observing
       the juror’s demeanor, the court concluded that the remark
       was minor, did not influence the other jurors, and did not
       indicate any predetermination of the issues by [J]uror 10.

¶24           The Staffords now argue Juror 10 “did not belong on the jury
panel” because his comment was “probably just the tip of the iceberg of his
misconduct — shamelessly committed in a public elevator in the presence
of three other jurors and the court reporter,” and because his conduct
reflects “he was either incapable of following instructions or was
deliberately obtuse and contrary.” The Staffords also suggest Juror 10 could
have assumed it was they who had discovered his misconduct, adding a
“‘get even’ motive to his proven penchant for ignoring the rules.”




                                      9
                         STAFFORD v. BURNS et al.
                            Opinion of the Court

¶25            Not every violation of the court’s admonitions requires
dismissal of the juror involved, see State v. Trostle, 191 Ariz. 4, 13 (1997), and
the trial court is in the best position to determine the effect, if any, of a
juror’s misconduct, see Cota v. Harley Davidson, 141 Ariz. 7, 10 (App. 1984)
(citing State v. Reynolds, 11 Ariz. App. 532, 535 (1970)). The record reflects
only that Juror 10 made a single non-committal comment outside the jury
room and immediately discontinued the conversation when reminded to
do so. The court determined Juror 10’s comment was isolated and
innocuous and did not affect his ability to render a fair and impartial
verdict. We defer to that conclusion, particularly where, as here, there is no
evidence to the contrary. The Staffords have not demonstrated, beyond
mere speculation, that the comment or the proceedings that followed
affected Juror 10’s ability to be impartial.7 See Cota, 141 Ariz. at 10-11
(noting “sheer speculation” regarding the effect of purported jury
misconduct cannot serve as grounds for a mistrial).

¶26           That the trial court could have chosen to designate Juror 10 as
an alternate without disrupting the proceedings is of no consequence. The
record does not show Juror 10 individually, or the jury generally, was
biased because of Juror 10’s misconduct. The court did not abuse its
discretion in denying the Staffords’ requests.

III.   Dr. Burns’ Testimony

¶27            At trial, evidence was introduced that Jesse died of
respiratory distress approximately thirty hours after he reportedly ingested
the methadone that caused him to present to the emergency room on
February 5, 2012. Dr. Burns testified she observed Jesse experience a mild
respiratory depression characteristic of methadone ingestion while he was
being treated in the emergency department and approved his discharge
only after his respirations returned to the normal range. Dr. Burns testified

7      The Staffords cite In re Hitchings, 860 P.2d 466, 477 (Cal. 1993), for the
proposition that violation of the juror admonition is “commonly regarded”
as serious misconduct that raises a presumption of prejudice. However
common it may be, this is not a correct statement of Arizona law. See Perez
v. Cmty. Hosp. of Chandler, Inc., 187 Ariz. 355, 360 (1997) (declining to adopt
strict rule of presumed prejudice in cases involving ex parte
communications with the jury); see also Trostle, 191 Ariz. at 12-13 (noting the
party challenging a juror’s inclusion on the panel bears the burden of
proving “there is reasonable ground to believe that [the juror] cannot
render a fair and impartial verdict”) (quoting Ariz. R. Crim. P. 18.4(b), and
citing State v. Lavers, 168 Ariz. 376, 390 (1991)).


                                       10
                         STAFFORD v. BURNS et al.
                            Opinion of the Court

she had never seen, either in her education or clinical experience, any data
suggesting the respiratory effects occur as long as thirty hours after
ingestion, and, if they did, “pretty much anyone who’s taking methadone
at all would have to stay in the hospital.” Finally, Dr. Burns added:

       [T]he biggest concern with methadone is people who take an
       additional dose. . . . [Y]ou’re at higher risk of having
       respiratory depressant [e]ffects when you take your second
       dose because you still have some in the body. So then you’re
       basically adding, almost like you’re stair-stepping on top of
       that. So that’s the second dose is what is the most concerning.

¶28            The Staffords argue this testimony transformed Dr. Burns into
“a second, undisclosed causation expert willing to opine that a purely
hypothetical second dose of methadone at Jesse’s home contributed to his
death,” and the trial court erred in denying their motion for new trial on
this basis. See Ariz. R. Civ. P. 26(b)(4)(D) (“In all cases including medical
malpractice cases each side shall presumptively be entitled to only one
independent expert on an issue, except upon a showing of good cause.”);
Ariz. R. Civ. P. 26.1(a)(6) (requiring detailed disclosure regarding the
qualifications and anticipated testimony of an expert witness). Whether Dr.
Burns provided expert testimony in violation of Rules 26(b)(4)(D) or
26.1(a)(6) are questions of law, which we review de novo. See State v. Salazar-
Mercado, 234 Ariz. 590, 592, ¶ 4 (2014) (citing State v. Gutierrez, 229 Ariz. 573,
576, ¶ 19 (2012)); Solimeno v. Yonan, 224 Ariz. 74, 77, ¶¶ 9-10 (App. 2010).

¶29           The Staffords acknowledge they were timely advised that Dr.
Burns would provide expert testimony on the standard of care. The
testimony identified above was appropriate for that purpose. It provided
both an illustration of the extent of Dr. Burns’ knowledge of the relevant
area of medical practice and the basis for Dr. Burns’ opinion that she did
not violate the standard of care by discharging Jesse after he experienced
the anticipated effects of methadone ingestion within the anticipated
timeframe and his respirations returned to the normal range. Although Dr.
Burns did express concern of “re-ingestion” after observing Jesse’s
condition and mannerisms in a video taken twelve hours after his
discharge, she did not provide any opinion about what caused or
contributed to his death, despite repeated questioning on the issue from the
Staffords’ counsel.




                                       11
                         STAFFORD v. BURNS et al.
                            Opinion of the Court

¶30           Dr. Burns did not testify as a causation expert and was not
required to make any additional disclosures; nor did she violate the one-
expert-per-issue presumption articulated in Rule 26(b)(4)(D). We find no
error.

IV.    Expert Testimony Regarding Post Mortem Gastric Methadone
       Levels

¶31            Before trial, the Staffords moved to preclude any expert
testimony extrapolating the timing of Jesse’s last methadone ingestion from
his post mortem gastric methadone levels, arguing the method was not
scientifically valid because of the way the drug redistributes in the body
after death. Counsel for Dr. Burns explained that the conclusion that Jesse
re-ingested methadone was based upon the significant amount of
methadone in his stomach, the rate the stomach empties, and the time that
passed between his discharge and death. The trial court denied the motion
and related request for evidentiary hearing after concluding the dispute
was simply a “difference of opinion” between the experts.

¶32            On appeal, the Staffords argue that admitting any testimony
based upon this “junk science” was error without holding a hearing
pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993),
to determine its reliability. We review the necessity of a hearing to resolve
a dispute in the admissibility of expert testimony for an abuse of discretion.
See Ariz. State Hosp./Ariz. Cmty. Prot. & Treatment Ctr. v. Klein, 231 Ariz. 467,
474, ¶¶ 31-32 (App. 2013) (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137,
152 (1999)).

¶33            Although the trial court may hold an evidentiary hearing to
evaluate proposed expert testimony, it is not required to do so. See id. Here,
both parties presented lengthy and detailed pleadings, cited supporting
medical literature, and attached affidavits containing the specific opinions
of their other disclosed medical and pharmacological experts. There is no
indication the court required additional information to make a decision on
the reliability of the methodology, and the Staffords do not articulate
otherwise in their briefs. We find no abuse of discretion.

V.     Cocaine Metabolite

¶34           The Staffords also argue the trial court erred by allowing the
jury to hear evidence that a postmortem urine sample contained cocaine
metabolites because the evidence was unfairly prejudicial. Because the trial
court is in the best position to balance the probative value of challenged
evidence against the danger of unfair prejudice, we review for an abuse of


                                       12
                         STAFFORD v. BURNS et al.
                            Opinion of the Court

discretion and will affirm absent a clear abuse of discretion or legal error
and prejudice. See State v. Salamanca, 233 Ariz. 292, 296, ¶ 17 (App. 2013)
(quoting State v. Connor, 215 Ariz. 553, 564, ¶ 39 (App. 2007)); Gasiorowski v.
Hose, 182 Ariz. 376, 382 (App. 1994) (citing Selby v. Savard, 134 Ariz. 222, 227
(1982)); see also Ariz. R. Evid. 403.

¶35           The trial court originally granted the Staffords’ motion in
limine precluding reference to the cocaine metabolite, agreeing the presence
of cocaine was irrelevant in the absence of some evidence that the cocaine
contributed to Jesse’s death. But after the court considered the Staffords’
evidence attempting to portray Jesse as a person who would not or could
not have re-ingested methadone after being discharged from the emergency
department, “giving the jury a pretty sanitized view of Jesse,” the court
reconsidered its ruling, explaining:

       There’s been testimony that Ms. Stafford searched the house
       for drugs before, that, you know, so far the alcohol bottles that
       we saw [in Jesse’s room] were decorative items. What this
       evidence would tend to show is that Jesse had been — had
       been using drugs for some period of time and his parents
       didn’t know, that he knew where to get drugs, that he knew
       how to hide his use from his parents. All of those are
       legitimate items for the jury to consider in determining
       whether his death was caused by the methadone taken before
       the hospital or whether he may have had access and used
       methadone afterwards. . . . [T]he 403 balancing is a lot
       different now that we’ve had two days of testimony than it
       was before trial. And after listening to the testimony that’s
       been presented so far, I think the permissible uses under 404
       B of this evidence, that is to show . . . that Jesse knew where
       to get drugs, that he knew how to hide drugs and hide drug
       use from his parents. And those issues, I think, are directly
       relevant to what the jury has to decide and they are
       permissible under Rule 404 B.

The court limited the admissibility of the cocaine metabolite evidence to
those purposes and permitted the Staffords to recall their toxicologist to
address the issue on rebuttal.            After the Staffords moved for
reconsideration, stressing the prejudicial nature of evidence of illegal drug
use, the court affirmed its ruling, reiterating that “after listening to the two
and a half days of testimony, the balancing has shifted considerably.”




                                      13
                         STAFFORD v. BURNS et al.
                            Opinion of the Court

¶36            We find no abuse of discretion. The evidence was relevant to
rebut the testimony of the Staffords’ witnesses that Jesse did not, could not,
or would not have sought out additional methadone after his discharge
from the emergency department. And although evidence of drug use may
be prejudicial, the danger of prejudice was not so obviously unfair here,
where it is undisputed that Jesse had previously ingested methadone
illegally.

VI.    Use of Dr. Burns’ Video Deposition

¶37           The Staffords argue the trial court erred by refusing to let
them play excerpts from Dr. Burns’ video deposition “when and how the
[Staffords] wanted to play them.” They do not elaborate on when or how
excerpts from Dr. Burns’ video deposition were used, when or how the
Staffords wished to use the video, how the court interfered with the
Staffords’ presentation, or how the court’s restrictions affected the verdict.
See ARCAP 13(a)(7)(A) (requiring an opening brief to contain “contentions
concerning each issue presented for review, with supporting reasons for
each contention . . . and appropriate references to the portions of the record
on which the appellant relies”). Because the Staffords failed to develop this
argument in a meaningful way, it is waived, and we do not address it. See
Polanco v. Indus. Comm’n, 214 Ariz. 489, 491 n.2, ¶ 6 (App. 2007) (noting a
party waives an issue on appeal when he fails to develop and support his
argument) (citations omitted).

VII.   Judgment as a Matter of Law

¶38             The Staffords argue the trial court erred in denying their
motions for judgment as a matter of law that: (1) the immediate cause of
Jesse’s death was methadone intoxication, (2) the mechanism of death was
respiratory failure, and (3) the manner of death was accidental. Whether a
trial court should have granted judgment as a matter of law presents a
question of law, which we review de novo. A Tumbling-T Ranches v. Flood
Control Dist. of Maricopa Cty., 222 Ariz. 515, 524, ¶ 14 (App. 2009) (citing
Aegis of Ariz., L.L.C. v. Town of Marana, 206 Ariz. 557, 566, ¶ 34 (App. 2003)).
We also review de novo the interpretation and application of the Arizona
Rules of Civil Procedure. See Duckstein v. Wolf, 230 Ariz. 227, 231, ¶ 8 (App.
2012) (citing Vega v. Sullivan, 199 Ariz. 504, 507, ¶ 8 (App. 2001)).

¶39           Arizona Rule of Civil Procedure 50(a)(1) states:

       If during a trial by jury a party has been fully heard on an
       issue and there is no legally sufficient evidentiary basis for a
       reasonable jury to find for that party on that issue, the court


                                      14
                         STAFFORD v. BURNS et al.
                            Opinion of the Court

       may determine the issue against the party and may grant a
       motion for judgment as a matter of law against that party with
       respect to a claim or defense that cannot under the controlling
       law be maintained or defeated without a favorable finding on
       that issue.

By its plain language, Rule 50 allows the trial court to enter judgment “with
respect to a claim or defense.” See also Salica v. Tucson Heart Hosp.-
Carondelet, L.L.C., 224 Ariz. 414, 417, ¶ 11 (App. 2010) (holding judgment as
a matter of law appropriate where “the facts produced in support of the
claim or defense have so little probative value, given the quantum of evidence
required, that reasonable people could not agree with the conclusion
advanced by the proponent of the claim or defense”) (emphasis added)
(quoting A Tumbling-T Ranches, 222 Ariz. at 524, ¶ 14).

¶40            Here, the Staffords did not request judgment on their claims
for medical malpractice or wrongful death; they simply asked the trial court
to remove from the jury, and instead resolve as a matter of law, particular
factual issues regarding the cause, mechanism, and manner of Jesse’s death.
Although seemingly undisputed, a substantive decision on these issues
would not resolve the Staffords’ claims that Dr. Burns was negligent, nor
quash Dr. Burns’ defense that Jesse’s death resulted from the re-ingestion
of methadone after discharge. Judgment as a matter of law is not available
to dispose of issues of fact that do not defeat a claim or defense, and the
court did not err in denying the Staffords’ motions.

VIII. Rule 68 Sanctions

¶41            Finally, the Staffords argue the trial court erred in imposing
sanctions pursuant to Arizona Rule of Civil Procedure 68(g) because the
$10,000 offer of judgment was invalid, as it was not made in good faith. We
review the interpretation and application of the offer of judgment rule de
novo. Berry v. 352 E. Va., L.L.C., 228 Ariz. 9, 15, ¶ 31 (App. 2011) (citing Levy
v. Alfaro, 215 Ariz. 443, 444, ¶ 6 (App. 2007)). We review the trial court’s
decision to impose Rule 68 sanctions for an abuse of discretion. Id. (citing
Hmielewski v. Maricopa Cty., 192 Ariz. 1, 4, ¶ 13 (App. 1997)).

¶42             A party may make an offer “to allow judgment to be entered”
in a civil case “any time more than 30 days before the trial begins.” Ariz. R.
Civ. P. 68(a). Rule 68(g) states:

       If the offeree rejects an offer and does not later obtain a more
       favorable judgment other than pursuant to this Rule, the
       offeree must pay, as a sanction, reasonable expert witness fees


                                       15
                          STAFFORD v. BURNS et al.
                             Opinion of the Court

       and double the taxable costs, as defined in A.R.S. § 12-332,
       incurred by the offeror after making the offer and
       prejudgment interest on unliquidated claims to accrue from
       the date of the offer.

The Staffords argue an offer of judgment must be “at least arguably
reasonable . . . compared with a lawsuit’s probable damages” to warrant
imposition of sanctions under Rule 68, and to hold otherwise impermissibly
allows the offeror to benefit from a “no-risk offer.” We disagree.

¶43             The Staffords rely on a Seventh Circuit Court of Appeals
decision, August v. Delta Airlines, Inc., 600 F.2d 699 (7th Cir. 1979), to support
their position. This case is not persuasive for several reasons. First, the
holding in August, allowing the trial court to exercise discretion whether to
allow a defendant to recover costs under Federal Rule 68, was specifically
limited to cases brought under Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e to e-17. See August, 600 F.2d at 700, 702 (“[W]e believe that
a liberal, not a technical, reading of Rule 68 is justified, at least in a Title VII
case. We need not decide whether this same approach should be taken in
other kinds of cases.”). In reaching its conclusion, the Seventh Circuit Court
of Appeals contraposed the plain language of the rule and the federal policy
of encouraging aggrieved individuals to seek redress for violations of their
civil rights, ultimately deciding “not . . . to permit a technical interpretation
of a procedural rule to chill the pursuit of that high objective.” Id. at 701.
No similar overarching goal is at issue in this tort action. Additionally,
Federal Rule of Civil Procedure 68 is materially different than the Arizona
correlate because it does not authorize an award of costs where judgment
is entered in favor of the defendant, as occurred in the immediate case. See
Fed. R. Civ. P. 68(a) (authorizing only “a party defending against a claim”
to make an offer of judgment), (d) (requiring the offeree to pay costs only if
he obtains a less favorable judgment than the defending party’s unaccepted
offer); Goldberg v. Pac. Indem. Co., 627 F.3d 752, 756-57 (9th Cir. 2010) (noting
Federal Rule 68 does not allow recovery where judgment is entered in favor
of the defendant).

¶44           Moreover, Arizona courts have uniformly held, consistent
with the rule’s plain language, that sanctions imposed by Rule 68(g) are
both mandatory and punitive. See Ariz. R. Civ. P. 68(g) (stating “the offeree
must pay, as a sanction, reasonable expert witness fees and double the
taxable costs”) (emphasis added); Arellano v. Primerica Life Ins., 235 Ariz.
371, 381, ¶ 48 (App. 2014); Levy, 215 Ariz. at 445, ¶ 8; Davis v. Disc. Tire Co.,
182 Ariz. 571, 573-74 (App. 1995). We are reluctant to stray from this plain
language. See Robertson v. Alling, 237 Ariz. 345, 347, ¶ 10 (2015) (“When a


                                        16
                        STAFFORD v. BURNS et al.
                           Opinion of the Court

rule’s language is unambiguous, we apply it as written.”) (citing Salazar-
Mercado, 234 Ariz. at 592, ¶ 4). The Staffords urge us to do so as a matter of
public policy. However, we find the policy behind Rule 68(g) — to promote
settlement and avoid protracted, unnecessary litigation, see, e.g., Warner v.
Sw. Desert Images, L.L.C., 218 Ariz. 121, 138, ¶ 57 (App. 2008) (citing Wersch
v. Radnor/Landgrant-A Phx. P’ship, 192 Ariz. 99, 102 (App. 1997)) — will not
be served by judicially grafting additional requirements onto the offer. A
reasonableness requirement would only increase the cost of litigation by
inviting the expenditure of time to resolve an offer’s validity, driving the
parties’ settlement positions further apart. See Brown v. Valley Nat’l Bank of
Ariz., 26 Ariz. App. 538, 540-41 (1976) (“Public policy is better served by
encouraging settlements in proper cases rather than to encourage
continuing litigation in the courts.”) (quoting Broadway Plan v. Ravenstein,
364 S.W.2d 741, 744 (Tex. Civ. App. 1963)).

¶45            Ultimately, it is solely within the purview of the parties to
prudently evaluate their causes of action and defenses and the potential
risks and benefits of proceeding to trial. If 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. Likewise, if the plaintiff/offeror
exaggerates his likelihood of success by presenting an offer the other party
perceives as too high, the defendant/offeree need only work to obtain an
award of damages against him that is less than the offer — again, by a single
dollar. The offeror should not be punished for investing in the necessary
calculation to determine, correctly, the existence and extent of his financial
exposure at trial. Nor should the offeree benefit from his failure to properly
value a case or be permitted, after the verdict is returned, to argue either
what was “reasonable” so as to justify his refusal to accept the offer or,
alternatively, to make some belated and collateral assertion of what the jury
should have awarded.

¶46           Accordingly, we decline to impose a requirement that offers
of judgment be deemed reasonable before sanctions are imposed under
Rule 68(g). That other jurisdictions have held otherwise does not vitiate
Arizona’s interest in encouraging settlement, nor change our analysis.




                                     17
                   STAFFORD v. BURNS et al.
                      Opinion of the Court

                         CONCLUSION

¶47       For the foregoing reasons, we accept jurisdiction and deny
relief.




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




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