                                                                      FILED BY CLERK
                                                                         FEB 22 2012
                             IN THE COURT OF APPEALS                      COURT OF APPEALS
                                 STATE OF ARIZONA                           DIVISION TWO

                                   DIVISION TWO

ROBERT BAKER, on behalf of                )          2 CA-CV 2011-0080
himself and all those entitled to recover )          DEPARTMENT A
for the death of TARA BAKER,              )
                                          )          OPINION
                     Plaintiff/Appellant, )
                                          )
                   v.                     )
                                          )
UNIVERSITY PHYSICIANS                     )
HEALTHCARE, an Arizona corporation; )
BRENDA J. WITTMAN, M.D. and JOHN )
DOE WITTMAN, wife and husband;            )
ARIZONA BOARD OF REGENTS                  )
doing business as UNIVERSITY OF           )
ARIZONA COLLEGE OF MEDICINE, )
                                          )
                  Defendants/Appellees. )
                                          )


            APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                                   Cause No. C20097222

                            Honorable Richard Gordon, Judge

                             VACATED AND REMANDED

Law Office of JoJene Mills, P.C.
 By JoJene E. Mills                                                               Tucson
                                                         Attorney for Plaintiff/Appellant

Campbell, Yost, Clare & Norell, P.C.
 By Stephen C. Yost                                                          Phoenix
                                                   Attorneys for Defendants/Appellees


H O W A R D, Chief Judge.
¶1            In this wrongful death action, appellant Robert Baker appeals from the trial

court‟s grant of summary judgment in favor of appellees Dr. Brenda Wittman, University

Physicians Healthcare (UPH), and the Arizona Board of Regents (ABOR), based on

Baker‟s failure to present expert testimony in compliance with the requirements of A.R.S.

§ 12-2604(A)(1).        Because Baker‟s expert failed to comply with the statute‟s

requirements and we do not find the statute invalid, we conclude the trial court decided

the matter correctly based on the state of the law at the time. However, because we

clarify the statutory requirements, we vacate the judgment and remand for further

proceedings consistent with this decision.

                          Factual and Procedural Background

¶2            In reviewing a grant of summary judgment, “[w]e view the facts in the light

most favorable to the party against whom summary judgment was entered.” Hamill v.

Mid-Century Ins. Co., 225 Ariz. 386, ¶ 2, 238 P.3d 654, 655 (App. 2010). However, the

facts here are largely uncontested. Baker‟s daughter, Tara, consulted Wittman after being

hospitalized for blood clots. She later died due to other blood clots as a result of alleged

malpractice. Wittman, an employee of UPH, is certified by the American Board of

Pediatrics   in   the   specialty   of   pediatrics   with   a   subspecialty   in   pediatric

hematology/oncology.      Baker sued appellees and others for Tara‟s wrongful death,

claiming Wittman breached the standard of care, resulting in Tara‟s death.

¶3            Baker disclosed Dr. Robert Brouillard as his expert to testify that Wittman

had breached the standard of care. Brouillard is certified by the American Board of

Internal Medicine as a specialist in internal medicine with subspecialties in oncology and

                                              2
hematology. Wittman, UPH, and ABOR moved for summary judgment, arguing that

Brouillard was not board certified in the same specialty as Wittman and thus failed to

qualify as an expert under A.R.S. § 12-2604. Baker responded that Brouillard was

qualified under the statute and that if he was not, the statute was unconstitutional. The

trial court concluded that Brouillard was not qualified to testify as an expert against

Wittman, rejected Baker‟s claims concerning the validity of the statute, and granted

Wittman, UPH, and ABOR‟s motion for summary judgment. After the court entered

final judgment pursuant to Rule 54(b), Ariz. R. Civ. P., Baker appealed.

                                Statutory Interpretation

¶4           Baker first claims the trial court erred in granting summary judgment

because Brouillard is qualified to testify about the standard of care under § 12-2604. He

argues that both Brouillard and Wittman were trained in hematology, urges we conclude

that hematology was the specialty at issue, and cites the website from the American

Society of Hematology in support of his position. In reviewing a grant of summary

judgment where the material facts are not in dispute, we review “de novo whether the

trial court correctly applied the substantive law to those facts.” Ariz. Joint Venture v.

Ariz. Dep’t of Revenue, 205 Ariz. 50, ¶ 14, 66 P.3d 771, 774 (App. 2002).

¶5           When interpreting a statute, our goal is “„to fulfill the intent of the

legislature that wrote it.‟” Awsienko v. Cohen, 227 Ariz. 256, ¶ 11, 257 P.3d 175, 177

(App. 2011), quoting Bilke v. State, 206 Ariz. 462, ¶ 11, 80 P.3d 269, 271 (2003). We

first look to the statute‟s language and if its meaning is clear, we rely on the plain

language rather than utilizing other ways of interpreting the statute. Id. We only modify

                                            3
the language in order to “„obviate any repugnancy to or inconsistence with‟” legislative

intent. Id., quoting Bd. of Supervisors v. Pratt, 47 Ariz. 536, 542, 57 P.2d 1220, 1223

(1936). If a statute is ambiguous, such as when terms are undefined, “we determine

legislative intent by looking first to the text and context of the statute.” Kent K. v. Bobby

M., 210 Ariz. 279, ¶¶ 14-15, 110 P.3d 1013, 1017 (2005). And we consider related

statutes together, “striv[ing] to achieve consistency among them.” Swift Transp. Co. v.

Maricopa County, 225 Ariz. 262, ¶ 11, 235 P.3d 1209, 1212 (App. 2010).

¶6            Section 12-2604(A)(1) provides:

                      A. In an action alleging medical malpractice, a person
              shall not give expert testimony on the appropriate standard of
              practice or care unless the person is licensed as a health
              professional in this state or another state and the person meets
              the following criteria:

                      1. If the party against whom or on whose behalf the
              testimony is offered is or claims to be a specialist, specializes
              at the time of the occurrence that is the basis for the action in
              the same specialty or claimed specialty as the party against
              whom or on whose behalf the testimony is offered. If the
              party against whom or on whose behalf the testimony is
              offered is or claims to be a specialist who is board certified,
              the expert witness shall be a specialist who is board certified
              in that specialty or claimed specialty.

¶7            Because the legislature did not define “specialty” in § 12-2604, the statute

is ambiguous and we look to its context. See Kent K., 210 Ariz. 279, ¶¶ 14-15, 110 P.3d

at 1017. Several statutes regarding medical specialties refer to an “American medical

specialty board.” See, e.g., A.R.S. §§ 20-841.04(F), 20-1057.01(E), 20-2532(A)(2), 20-

2538(B); see also Swift Transp. Co., 225 Ariz. 262, ¶ 11, 236 P.3d at 1212 (related

statutes construed together). The American Board of Medical Specialties (ABMS) is an

                                             4
organization consisting of twenty-four member boards and works in conjunction with the

American Medical Association to recognize specialty boards. ABMS, About ABMS

Member Boards, http://www.abms.org/About_ABMS/member_boards.aspx (last visited

Feb. 14, 2012). ABMS lists pediatrics as one specialty and internal medicine as another,

but does not include hematology as a specialty.                 Id.      It lists pediatric

hematology/oncology as a subspecialty of pediatrics and hematology as a subspecialty of

internal         medicine.       ABMS,      ABMS       Member         Boards,       Pediatrics,

http://www.certificationmatters.org/abms-member-boards/pediatrics.aspx           (last   visited

Feb.       14,     2012);    ABMS,   ABMS     Member     Boards,       Internal      Medicine,

http://www.certificationmatters.org/abms-member-boards/internal-medicine.aspx              (last

visited Feb. 14, 2012).

¶8                Additionally, the American Society of Hematology‟s website, cited by

Baker, provides as follows: “An American hematologist has trained in a subspecialty

program approved by the American Board of Internal Medicine or the American Board of

Pediatrics, or has acquired a comparable education in the field by alternate means, and is

Board Certified (or eligible) in the subspecialty of hematology.”1              Am. Soc‟y of

Hematology, Defining the American Hematologist, http://www.hematology.org/About-

ASH/1778.aspx (last visited Feb. 14, 2012). Thus, taking related statutes into account, as


       1
         We may take judicial notice of facts “not subject to reasonable dispute” if they
are “capable of accurate and ready determination by resort to sources whose accuracy
cannot reasonably be questioned.” Ariz. R. Evid. 201(b); see In re Roy L., 197 Ariz. 441,
¶ 20, 4 P.3d 984, 990 (App. 2000) (appellate court may take judicial notice of matters
trial court could have, even if trial court did not).

                                             5
well as the arguments of the parties, we conclude the legislature intended “specialty” to

be one of the twenty-four boards established by ABMS.

¶9             In their briefs, both parties suggest the statute requires the testifying expert

to be of the same subspecialty as the subject doctor. Baker notes that one of the sponsors

of § 12-2604 testified before the House of Representatives Committee on Health that the

statute would mean “a physician cannot testify against another physician unless they have

comparable training and certification.” H.R. Health Comm. Minutes, 47th Leg., 1st Reg.

Sess. (Ariz. Mar. 23, 2005). Although the statement of a bill‟s sponsor may be entitled to

some weight, Hernandez-Gomez v. Leonardo, 185 Ariz. 509, 513, 917 P.2d 238, 242

(1996), this statement gives the court little guidance in determining the legislature‟s

choice between requiring the same specialty or subspecialty. As this case demonstrates,

that choice involves important policy trade-offs between the depth and breadth of the

expert pool and the similarity of the training. It is the legislature‟s role to make policy

decisions and “[w]e will not question the wisdom, necessity, or soundness of policy of

legislative enactments.” In re Estate of Winn, 225 Ariz. 275, ¶ 12, 237 P.3d 628, 630

(App. 2010).     We will not make the policy decisions associated with limiting the

testifying experts to the same subspecialty when the legislature has chosen to say

specialty.

¶10            Additionally, the legislature could have chosen to base a testifying expert‟s

qualifications on the relevant injury or procedure, but instead decided to base it on the




                                               6
training and certification of the specialist.2 The legislature chose the term specialty,

which has an objective and verifiable meaning through reference to the other statutes.

Had the legislature chosen a word or phrase without such a meaning, this court would

have more leeway in interpreting the statute. But we presume the legislature has spoken

as clearly as possible. Samaritan Health Sys. v. Superior Court, 194 Ariz. 284, ¶ 18, 981

P.2d 584, 589 (App. 1998). Because it chose the word specialty rather than a less

specific phrase, we must conclude it meant specialty.

¶11          Section 12-2604(A)(1) requires that the testifying expert here be “a

specialist who is board certified in [Wittman‟s] specialty.” Based on the record, Wittman

is certified by the American Board of Pediatrics in the specialty of pediatrics with a

subspecialty in pediatric hematology/oncology. Brouillard is certified by the American

Board of Internal Medicine as a specialist in internal medicine with subspecialties in

oncology and hematology. Pediatrics is a different specialty than internal medicine.

Therefore, under § 12-2604(A)(1), Brouillard was not board certified in the same

specialty as Wittman. See Awsienko, 227 Ariz. 256, ¶ 11, 257 P.3d at 177.

¶12          Baker asserts that Brouillard‟s training included pediatric treatment and that

Brouillard would be comfortable treating pediatric patients. He goes on to claim that

§ 12-2604 does not require the specialist to be certified by the same board as the

defendant and that this shows the legislature intended to allow specialists from different

boards to testify against each other. But none of these arguments, even if correct,


      2
       We are not presented with and do not decide if or in what way § 12-2604 applies
when a defendant specialist is acting outside of his or her specialty.
                                            7
undermines our reading of the statute or causes our interpretation to be repugnant to or

inconsistent with legislative intent, and therefore we do not adopt them. See Awsienko,

227 Ariz. 256, ¶ 11, 257 P.3d at 178. If the legislature had intended to allow experts

whose training included the treatment at issue to testify, we presume it would have said

so. See id. ¶ 14 (improper for court to alter legislature‟s requirements).

¶13           Baker, citing Woodard v. Custer, 719 N.W.2d 842, 851 n.6 (Mich. 2006),

further claims that the ABMS has decided “a subspecialty constitutes a specialty.” But

we must determine the legislature‟s intent at the time of enacting the statute, not ABMS‟s

intent the year after the statute was enacted. See Awsienko, 227 Ariz. 256, ¶ 11, 257 P.3d

at 177. Compare 2005 Ariz. Sess. Laws, ch. 183, § 1, with Woodard, 719 N.W.2d 842.

“[T]his court must presume that the legislature expressed itself in as clear a manner as

possible and that it gave words their natural and obvious meanings.” Samaritan Health

Sys., 194 Ariz. 284, ¶ 18, 981 P.2d at 589; see also State v. Korzep, 165 Ariz. 490, 493,

799 P.2d 831, 834 (1990) (When interpreting statute, “[w]e give words their usual and

commonly understood meaning unless the legislature clearly intended a different

meaning.”). If the legislature had intended to require matching subspecialties, it could

have said so. See Awsienko, 227 Ariz. 256, ¶ 14, 257 P.3d at 178. Legislatures in other

states have included the term subspecialty or similar criteria in their requirements for a

testifying physician. Colo. Rev. Stat. § 13-64-401; Mont. Code Ann. § 26-2-601; N.J.

Stat. Ann. § 2A:53A-41; 40 Pa. Cons. Stat. § 1303.512(c)(2). Thus, we will not presume

our legislature intended subspecialty when it used the word specialty. See Canon Sch.



                                              8
Dist. No. 50 v. W.E.S. Constr. Co., 177 Ariz. 526, 529-30, 869 P.2d 500, 503-04 (1994)

(court would not limit legislature‟s use of “this section” to apply to subsection).

¶14            Baker argues extensively that seventeen-year-old Tara was not truly a

pediatric patient and that Brouillard could treat patients her age. He further argues the

standard of care should be the same for both Brouillard and Wittman.3 Baker also

contends the purposes of the statute are met here. Again, the legislature has chosen to

require an expert to be certified in the same specialty. See § 12-2604. As this court

stated in Governale v. Lieberman, 226 Ariz. 443, ¶ 18, 250 P.3d 220, 226 (App. 2011),

the legislature may have imposed the same specialty requirement to reduce

misunderstandings arising from “differences in training or education.”            Arguments

concerning the overlap of the practices are more appropriately addressed to the

legislature.

¶15            We acknowledge that, in Awsienko, Division One of this court defined

“specialist” according to the dictionary rather than relying on the ABMS. 227 Ariz. 256,

¶ 9, 257 P.3d at 177. Because that court was considering only whether a testifying

specialist was required to be board-certified at the time of the incident, Awsienko‟s use of

that definition is dictum. See id. ¶¶ 10, 18; Alejandro v. Harrison, 223 Ariz. 21, ¶ 12,

219 P.3d 231, 235 (App. 2009) (dictum not precedential when general statement of law

unnecessary to decision). Moreover, Awsienko relied on the ABMS for its explanation of


       3
        Wittman counters with evidence that the training of the two specialties were very
different and caused different approaches in treating the patient. However, we need not
reach that issue here.

                                              9
board certification.   227 Ariz. 256, n.1, 257 P.3d at 177 n.1.          Finally, Awsienko‟s

definition of specialist is a subjective one dependent on whether an expert‟s practice is

limited to one area and could vary from case to case. Here the definition of specialty is at

issue and our analysis refines Awsienko‟s.

¶16           Our specially concurring colleague proposes a logical and attractive test for

determining the testifying expert‟s required qualifications. We do not adopt it only

because we conclude that, when a specialist is acting within his or her specialty, the

structure of the statute indicates the legislature intended to require the testifying expert to

share that same specialty.

¶17           Wittman contends Brouillard also fails to satisfy § 12-2604(A)(2), because

he did not devote the majority of his professional time to pediatric hematology or general

hematology in the year prior to Tara‟s death. However, because we conclude that

Brouillard‟s certification did not satisfy § 12-2604(A)(1), we need not reach this issue.

                                      Anti-Abrogation

¶18           Baker next argues the trial court erred by concluding § 12-2604 did not

violate the Anti-Abrogation Clause of the Arizona Constitution. See Ariz. Const. art.

XVIII, § 6. We review the constitutionality of a statute de novo. Martin v. Reinstein,

195 Ariz. 293, ¶ 16, 987 P.2d 779, 787 (App. 1999).               We presume a statute is

constitutional and its challenger bears a heavy burden in showing the statute‟s

unconstitutionality. Id.

¶19           Article XVIII, § 6 states, “The right of action to recover damages for

injuries shall never be abrogated, and the amount recovered shall not be subject to any

                                              10
statutory limitation.” A statute violates the Anti-Abrogation Clause if “it „completely

abolishe[s]‟ the cause of action.” Lindsay v. Cave Creek Outfitters, L.L.C., 207 Ariz.

487, ¶ 21, 88 P.3d 557, 563 (App. 2003), quoting Barrio v. San Manuel Div. Hosp. for

Magma Copper Co., 143 Ariz. 101, 106, 692 P.2d 280, 285 (1984) (alteration in

Lindsay). So long as reasonable alternatives remain, the legislature may regulate a right

of action protected by article XVIII, § 6. Duncan v. Scottsdale Med. Imaging, Ltd., 205

Ariz. 306, ¶ 30, 70 P.3d 435, 442 (2003).

¶20           In Governale, this court considered whether § 12-2604 violated the Anti-

Abrogation Clause. 226 Ariz. 443, ¶¶ 8-9, 250 P.3d at 224. It concluded the statute

merely regulated the right of action by imposing a particular burden of proof on the

parties. Id. ¶ 10.

¶21           Baker attempts to distinguish Governale by claiming that, in his case, he

has no reasonable alternatives to bringing the action because only 1800 physicians are

pediatric hematologists. He asserts he contacted twenty and none would agree to testify.

But the legislature has not required that a physician be board certified in the same

subspecialty as the defendant. See § 12-2604. We will not read a greater restriction into

the statute than the legislature put there. See Awsienko, 227 Ariz. 256, ¶ 14, 257 P.3d at

178. The undisputed facts in the present case show that Wittman claimed to be a

specialist in pediatrics with a subspecialty in pediatric hematology/oncology and

Brouillard is not a specialist in pediatrics. Because Baker has not demonstrated that he

was unable to procure a testifying expert from the pool of specialists in pediatrics, we



                                            11
reject his attempt to distinguish Governale and his claim that § 12-2604 violates the Anti-

Abrogation Clause.4

                             Other Constitutional Arguments

¶22              Baker further contends § 12-2604 violates his equal protection and due

process rights under the Arizona Constitution.5 In Governale, this court expressly held to

the contrary. 226 Ariz. 443, ¶ 19, 250 P.3d at 226. Baker attempts to distinguish

Governale, again arguing his pool of experts was unduly restricted and, therefore, the

statute impinges a fundamental right. But, as we have determined above, Baker has not

shown the statute severely restricted his choice of experts when the correct criterion is

used. Accordingly, he has failed to distinguish Governale and we need not repeat its

analysis here.

¶23              Baker next argues § 12-2604 violates the Arizona Constitution‟s

prohibition against special laws. Governale holds that the statute “is not a forbidden

special law.” 226 Ariz. 443, ¶ 21, 250 P.3d at 227. Baker alleges that Governale

“fail[ed] to consider how patients of pediatric hematologists or other sub-sub-specialties

will be affected.” However, as we have discussed, the statute does not require an expert

be of the same subspecialty. See § 12-2604.
       4
         Baker also relies on various out-of-state cases and statutes. But we see no reason
to rely on these when the Arizona legislature and courts have addressed the matter.
       5
        Baker additionally contends the statute violates the corresponding clauses of the
United States Constitution, but provides no evidence those provisions would require a
different outcome than the Arizona Constitution requires. He has thus waived any such
argument. See Ariz. R. Civ. App. P. 13(a)(6); Polanco v. Indus. Comm’n, 214 Ariz. 489,
n.2, 154 P.3d 391, 393-94 n.2 (App. 2007) (appellant‟s failure to develop and support
argument waives issue on appeal).

                                            12
¶24           Finally, Baker argues § 12-2604 violates the Arizona Constitution‟s

guarantee of access to the courts, citing the Due Process, Equal Protection and Anti-

Abrogation clauses.6     But, as explained above, § 12-2604 violates none of these

provisions. Governale, 226 Ariz. 443, ¶ 24, 250 P.3d at 227.

¶25           Section 12-2603, A.R.S., requires a person bringing a claim against a health

care professional to file a preliminary expert opinion affidavit, but permits the party “a

reasonable time to cure any affidavit” if the affidavit is insufficient.    Similarly, we

generally favor a resolution on the merits. Cf. Addison v. Cienega, Ltd., 146 Ariz. 322,

323, 705 P.2d 1373, 1374 (App. 1985). Because we have defined specialty in a manner

different from Awsienko, we reverse the trial court‟s grant of summary judgment. On

remand Baker shall be given the opportunity to present an expert witness in compliance

with this decision.

                                       Conclusion

¶26           For the foregoing reasons, we vacate the trial court‟s grant of summary

judgment in favor of Wittman, UPH, and ABOR and remand for further proceedings

consistent with this opinion.




                                             /s/ Joseph W. Howard
                                             JOSEPH W. HOWARD, Chief Judge

CONCURRING:
       6
        Baker also contends Seisinger v. Siebel, 220 Ariz. 85, ¶ 44, 203 P.3d 483, 494
(2009), holding § 12-2604 did not violate separation of powers, “was wrongly decided.”
However, he acknowledges that issue “is a question for the Arizona Supreme Court.”

                                           13
/s/ J. William Brammer, Jr.
J. WILLIAM BRAMMER, JR., Judge


E C K E R S T R O M, Presiding Judge, specially concurring.


¶27           In this case, we must determine what the legislature intended when it

required that any expert testifying “on the appropriate standard of practice or care” in a

medical malpractice action must specialize “in the same specialty” as the defendant

physician. A.R.S. § 12-2604(A)(1). The language of the statute itself provides little

guidance on the central issues raised here: whether the term “specialty” was intended to

include sub-specialties and, if not, what definition of specialty do we apply? I concur

with the majority opinion to the extent it aptly resolves these difficult questions.

¶28           In my view, however, the majority analysis fails to address an important

additional feature of § 12-2604(A)(1): that the specialty requirement is imposed only in

the context of testimony regarding the defendant physician‟s “appropriate standard of

practice or care.” Because an expert witness is not allowed under our rules of evidence to

testify regarding an irrelevant standard of care, see Governale, 226 Ariz. 443, ¶ 6, 250

P.3d at 223; Pipher v. Loo, 221 Ariz. 399, ¶ 16, 212 P.3d 91, 95-96 (App. 2009), and the

specialty requirement is imposed only as to expert testimony regarding the “appropriate”

standard, it follows that expert witnesses need not mirror those specialties of the

defendant physician that are not pertinent to the relevant injury or procedure.        See



                                             14
Woodard v. Custer, 719 N.W.2d 842, 849-50 (Mich. 2006) (reaching same conclusion as

to identical Michigan statute).7

¶29           In this case, for example, the defendant physician possessed some level of

specialization in pediatrics, hematology, and oncology. On the record before us, where

there is no suggestion that the deceased‟s condition was related to any cancer, it would

make little sense to require an expert witness on the standard of care to have any

expertise in oncology. And, there is a legitimate factual dispute on the record before us

as to whether specialization in pediatrics would be at all pertinent to the standard of care

for the treatment of a seventeen-year-old patient suffering from a blood disorder. In fact,

if we concluded that an expert‟s specialization must be a mirror image of all medical

specialties held by a defendant physician, regardless of their pertinence to the patient‟s

injury or condition, our statute would require a testifying expert to have pediatric

specialization here even if the patient had been an adult.

¶30           I cannot agree that the legislature intended such absurd potential results.

See State v. Barragan-Sierra, 219 Ariz. 276, ¶ 17, 196 P.3d 879, 885 (App. 2008) (“We

employ a common sense approach [when construing statutory language], reading the

statute in terms of its stated purpose and the system of related statutes of which it forms a

part, while taking care to avoid absurd results.”); see also Patches v. Indus. Comm’n, 220

Ariz. 179, ¶ 10, 204 P.3d 437, 440 (App. 2009) (“[C]ourts must, where possible, avoid


       7
         Because many physicians have specialization in more than one field, one of
which is usually pertinent to the medical condition at issue, this is a different problem
than determining whether § 12-2604 applies to those physicians operating outside any of
their fields of specialization.
                                             15
construing statutes in such a manner as to produce absurd or unconstitutional results.”).

Instead, I believe the statute‟s focus on the “appropriate standard of care or practice”

demonstrates that the legislature intended logically to limit the specialization requirement

only to those specializations held by defendant physicians that are “appropriate” to the

injury or condition at issue. § 12-2604(A). I therefore would instruct the trial court on

remand to determine whether the defendant‟s specialization in pediatrics was pertinent to

the standard of care or practice in treating the patient‟s blood condition. In all other

respects, I join my colleagues‟ well-reasoned opinion.




                                              /s/ Peter J. Eckerstrom
                                              PETER J. ECKERSTROM, Presiding Judge




                                            16
