                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                   DIVISION ONE


                 BILLY BRUMETT, et al., Plaintiffs/Appellees,

                                        v.

    MGA HOME HEALTHCARE, L.L.C., et al., Defendants/Appellants.

                             No. 1 CA-CV 15-0047
                               FILED 12-6-2016


            Appeal from the Superior Court in Maricopa County
                           No. CV 2010-092697
               The Honorable David M. Talamante, Judge

                       VACATED AND REMANDED


                                    COUNSEL

Gregory Law Group, Gilbert
By Robert M. Gregory
Counsel for Plaintiffs/Appellees

Law Offices of Broening Oberg Woods & Wilson, PC, Phoenix
By James R. Broening, T. Scott King, Michelle L. Donovan, Kevin R. Myer
Counsel for Defendants/Appellants
                        BRUMETT v. MGA HOME
                          Decision of the Court



                      MEMORANDUM DECISION

Judge Margaret H. Downie delivered the decision of the Court, in which
Acting Presiding Judge Samuel A. Thumma and Judge Mark R. Moran1
joined.


D O W N I E, Judge:

¶1             MGA Home Healthcare, L.L.C. (“MGA”) and Susan Bosman
(collectively, “Defendants”) appeal the superior court’s order granting a
new trial to Billy and Angela Brumett (collectively, “Plaintiffs”).2 For the
following reasons, we vacate the new trial order and remand to the
superior court with instructions to enter judgment in favor of Defendants.

                FACTS AND PROCEDURAL HISTORY

¶2           MGA provided in-home nursing services for Connie
Brumett. Connie required 24-hour care and had a jejunostomy tube (“J-
tube” or “feeding tube”) through which medications and nutrients were
administered. Billy Brumett cared for Connie from 7:00 a.m. to 3:00 p.m.;
Lois Hickenbottom was Connie’s caregiver between 3:00 p.m. and 11:00
p.m.; and Susan Bosman, a licensed practical nurse employed by MGA,
cared for Connie from 11:00 p.m. to 7:00 a.m.

¶3            On November 23, 2009, Billy left a note asking Bosman to
adjust Connie’s J-tube because it “kept migrating outwards.” With
Hickenbottom’s assistance, Bosman adjusted the J-tube. Connie was
admitted to the hospital the following day. She underwent surgery,
where it was determined she had a perforated jejunum. The surgeon
removed a “fairly stiff” tube with a sharp tip. Connie remained
hospitalized until her death on December 17, 2009.



1      Pursuant to Article VI, Section 3 of the Arizona Constitution, the
Arizona Supreme Court designated the Honorable Mark R. Moran, Judge
of the Arizona Superior Court, to sit in this matter.
2      Billy Brumett is Connie Brumett’s husband, and Angela Brumett is
Connie’s daughter. We refer to the Brumetts by their first names when
necessary to distinguish between them.



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                        BRUMETT v. MGA HOME
                          Decision of the Court

¶4            Plaintiffs sued MGA and Bosman, alleging violations of the
Adult Protective Services Act, Arizona Revised Statutes (“A.R.S.”) sections
46-451, et seq. (“APSA”), wrongful death, fraudulent misrepresentation,
and negligent misrepresentation. The superior court entered summary
judgment for Defendants on the APSA and misrepresentation claims. The
wrongful death claim proceeded to trial.

¶5           The jury returned a defense verdict, and Plaintiffs moved for
a new trial. The superior court granted a new trial based on two of the
grounds urged by Plaintiffs: (1) Defendants’ purported violation of a
ruling on a motion in limine regarding Connie’s J-tube; and (2) the court
erroneously prevented Plaintiffs from presenting testimony “regarding
the hardening of the feeding tube.”

¶6            Defendants timely appealed. We have jurisdiction pursuant
to A.R.S. §§ 12-120.21(A)(1) and -2101(A)(5)(a).

                              DISCUSSION

¶7           This Court reviews rulings on motions for new trial for an
abuse of discretion. Cal X-Tra v. W.V.S.V. Holdings, L.L.C., 229 Ariz. 377,
403, ¶ 88 (App. 2012). “In our review, we ‘scrutinize with care an order
granting a new trial’ because ‘meaningful review in such cases is required
to maintain the integrity of the jury trial system and the practical value of
court adjudication.’” Id. (quoting Zugsmith v. Mullins, 86 Ariz. 236, 237–38
(1959)). However, “we generally afford the trial court wide deference
because the judge sees the witnesses, hears the testimony, and has a
special perspective of the relationship between the evidence and the
verdict which cannot be recreated by a reviewing court from the printed
record.” Id.

I.    Plaintiffs’ Motion in Limine No. 18

¶8            The first basis for granting a new trial was the superior
court’s conclusion that Defendants violated a pretrial ruling on Plaintiffs’
“Motion In Limine No. 18 Re: Exclusion of All Testimony or Evidence that
Plaintiffs Removed and/or Replaced the J-Tube from Decedent Connie
Brumett” (“motion in limine no. 18”).

¶9            Throughout the litigation, Defendants took the position that
someone had substituted the J-tube Dr. Robert Schuster surgically inserted
in July 2009 with a different tube. Defense expert James Macho, M.D.,
testified at deposition it was “very unlikely” Connie’s jejunum was
perforated by “a standard jejunostomy tube,” but opined that “[i]f


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                        BRUMETT v. MGA HOME
                          Decision of the Court

someone puts in a sharp, stiff tube, there’s going to be a very high risk of a
perforation.” According to Dr. Macho, an “improper tube” — i.e., a tube
different from the one Dr. Schuster inserted — caused the perforation.

¶10           In motion in limine no. 18, Plaintiffs asked the court to

       exclude all testimony or evidence that [Billy or Angela]
       accidentally, or on their own volition, removed the j-tube
       from Connie Brumett and/or replaced the j-tube inside of
       Connie Brumett at any time prior to the puncture in her
       jejunum, which also includes the exclusion of any testimony
       or evidence that [Billy or Angela] punctured Connie
       Brumett’s jejunum as a result of the removal and/or
       replacement of her j-tube.

In a supplemental filing, Plaintiffs made clear they were not asking the
court to preclude evidence or argument that Billy had adjusted or reinserted
Connie’s J-tube. They objected only to any evidence or argument that
“somehow Billy Brumett had replaced his wife’s j-tube with a different
feeding tube during his care of her on or about November 23, 2009.”

¶11           Defendants opposed motion in limine no. 18, arguing: (1) Dr.
Schuster believed the tube removed in November 2009 was not the same
tube he had inserted four months previously; (2) Billy told an emergency
room physician (Dr. Geoffrey McKinzie) that Connie’s J-tube had fallen
out the day before her hospitalization and that he had “replaced” it;3 (3)
there was no evidence Bosman had substituted the J-tube Dr. Schuster
inserted with “the sharp, stiff tube” later removed; and (4) a defense
nursing expert opined that Billy inadvertently perforated Connie’s
jejunum when he reinserted the J-tube on November 23, 2009. Based on
this evidence, Defendants argued, “a jury could well find that Mr. Brumett
removed the soft and pliable J-tube and inserted the hard, sharp tipped
tube.”



3    Dr. McKinzie’s emergency room note reads: “Per her husband, she
had a J-tube that had fallen out yesterday that he had replaced by hand
himself.” The superior court ruled that “a fair reading in context” of this
note was that Billy “re-inserted the feeding tube because it had fallen out.”
At trial, Plaintiffs introduced Dr. McKinzie’s medical records into
evidence — including this note — and published them to the jury.




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                        BRUMETT v. MGA HOME
                          Decision of the Court

¶12           The superior court granted motion in limine no. 18,
precluding evidence that Billy or Angela replaced the J-tube Dr. Schuster
surgically inserted with a different tube. The court ruled, in pertinent
part:

      Defendants may not present evidence or argue that Plaintiffs
      removed or replaced the feeding tube but may argue and
      present evidence in support of their theory that Plaintiff Billy
      Brumett adjusted or re-inserted the feeding tube.

¶13           As particularly relevant here, the court’s ruling did not
preclude Defendants from arguing that someone else (other than Plaintiffs)
had replaced Connie’s J-tube. Indeed, the court adopted the following
statement of the case to be read to prospective jurors:

      Plaintiffs claim that Defendant, Susan Bosman, perforated
      Connie Brumett’s small intestine while advancing a feeding
      tube on November 23, 2009 resulting in her death.

      Defendants deny they were negligent or that their
      negligence caused Connie Brumett’s death and the damages
      claimed by Plaintiffs. Defendants assert that someone removed
      the soft, pliable tube surgically inserted on July 27, 2009 and
      replaced it with a hard, sharp-tipped tube that was removed during
      surgery on November 25, 2009.

(Emphasis added). Thus, before trial, the superior court had ruled that
although Defendants could not present evidence or argument that Billy or
Angela removed or replaced Connie’s J-tube, Defendants could present
evidence and argument that “someone” had removed the J-tube
implanted in July 2009 and replaced it with the tube removed during the
November 2009 surgery.

¶14           Consistent with this ruling, the court overruled an objection
to defense counsel’s opening statement comment that “someone had
replaced the ordinarily soft pliable feeding tube.” The court concluded
this statement was not objectionable and was consistent with the
statement of the case read to jurors. The record before this Court does not




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                        BRUMETT v. MGA HOME
                          Decision of the Court

reflect that Plaintiffs again objected or voiced concern during trial that
Defendants were violating the ruling regarding motion in limine no. 18.4

¶15          Although Plaintiffs did not object during Defendants’
closing argument, in their motion for new trial, they asserted defense
counsel had violated the pretrial ruling by arguing “that Billy Brumett had
replaced his wife’s feeding tube.” Plaintiffs did not cite any portion of the
closing argument that ran afoul of the ruling. In response, Defendants
“challenge[d] Plaintiffs to point to one area in the entire record wherein
the defense argued that Billy Brumett (as opposed to generically
‘someone’) swapped out his wife’s soft, pliable j-tube with a rigid, sharp
tube.” In reply, Plaintiffs cited only the following excerpt from
Defendants’ closing argument:

      And whoever reinserted [the J-tube], if it was reinserted, or
      whoever changed it, if it was a different tube, had
      knowledge that that had been done, but not Nurse Bosman.
      She couldn’t have known.

¶16           Plaintiffs’ failure to object during closing argument
“constitutes a waiver unless the matter is so serious that no admonition
could undo the damage.” Maxwell v. Aetna Life Ins. Co., 143 Ariz. 205, 214
(1984). The appellate record discloses neither fundamental error nor
misconduct by counsel on this point. See Liberatore v. Thompson, 157 Ariz.
612, 620 (App. 1988) (“[T]hough a party risks forfeiting a potential ground
for appeal by withholding prompt objection to an opponent’s misconduct,
he does not forfeit the right to assert such misconduct as a basis for
sustaining the trial court’s new trial order if the trial court finds the
impropriety sufficient to warrant a new trial despite the absence of a
prompt objection.”).

¶17           Waiver aside, defense counsel’s closing argument was
consistent with the court’s ruling on motion in limine no. 18 — suggesting
that someone had replaced Connie’s J-tube, but not naming either of the



4      Outside the jury’s presence, Defendants sought to have the court
reconsider its ruling on motion in limine no. 18 based on evidence that, on
a prior occasion, Billy had replaced Connie’s J-tube with a “much stiffer”
Foley catheter. The court declined to reconsider its ruling, and the record
does not disclose any evidence or argument in front of the jury regarding
this prior incident.



                                     6
                         BRUMETT v. MGA HOME
                           Decision of the Court

Brumetts as that “someone.” Plaintiffs conceded as much during oral
argument on their motion for new trial:

       THE COURT: Well, defense counsel never actually in his
       closing argument said that Mr. Brumett had replaced [the
       J-tube].

       [PLAINTIFFS’ COUNSEL]: That’s correct, [Y]our Honor,
       but Plaintiff[s]’ contention is not that direct express
       statement of that would alone would be in violation of the
       Court’s previous ruling on motion in limine number 18, but
       even implied or suggestive argument would be enough to
       raise the issue for a new trial.

¶18           The superior court did not grant a new trial based on a
conclusion it had erred by permitting Defendants to argue that someone
had replaced Connie’s J-tube. See, e.g., Ariz. R. Civ. P. (“Rule”) 59(a)(6)
(New trial may be granted for “[e]rror in the admission or rejection of
evidence.”). The court instead ordered a new trial because “Defendants
violated the Court’s ruling regarding Motion in Limine #18 and . . .
Plaintiffs were prejudiced by that violation.” But even viewing the record
in the light most favorable to sustaining that determination, there was no
such violation. The record does not support the grant of a new trial on
that basis. See Grant v. Ariz. Pub. Serv. Co., 133 Ariz. 434, 456 (1982) (“[T]he
appellate court may find an abuse of discretion if the record fails to
provide substantial evidence to support the trial court’s finding.”).

II.    Defendants’ Motion in Limine No. 12

¶19           Defendants moved in limine (referred to here as “motion in
limine no. 12”) to preclude Nurse Diana Greenberg (Plaintiffs’ standard of
care expert), Dr. Keith Beck (Plaintiffs’ causation expert), and Connie’s
treating physicians from “offering an opinion that the soft, pliable J-tube
that Dr. Schuster surgically inserted into Connie Brumett on July 27, 2009,
morphed into the hard, sharp tipped tube that Dr. Abdo removed during
the November 25, 2009 surgery.” Defendants argued Nurse Greenberg
had conceded “she is not a J-tube expert . . . and she did not know what
happens to the J-tube consistency over time when it is in a patient.”
Defendants further asserted Plaintiffs had not disclosed any opinion by
Nurse Greenberg that the J-tube Dr. Schuster inserted “morphed into the
hard, sharp tipped tube” removed in November. Defendants similarly
argued Dr. Beck “never offered an opinion that the J-tube that
Dr. Schuster inserted . . . morphed into a hard, sharp tipped tube that



                                       7
                        BRUMETT v. MGA HOME
                          Decision of the Court

Dr. Abdo removed.” Finally, Defendants contended none of Connie’s
treating physicians had offered opinions about changes in J-tubes over
time.

¶20         In their response, Plaintiffs opposed Defendants’ motion
only as to Nurse Greenberg, relying on the following excerpt from her
deposition:

      Q. Does the structural integrity of a feeding tube change
      over time?

      A. It can. A lot of tubes, whether it’s G-tube, J-tube, PICC
      lines, in my practice they are not supposed to over time, but
      there are occasions where it breaks off or it becomes
      brittle, and that’s why when I have my nurses remove a
      PICC line, they have to look at the entire tubing to see if
      there’s any breakage of the catheter or the tube. So that
      applies to Foleys. It applies to any kind of tubing.

      Q. Do tubes, by virtue of the fact that they become brittle
      and otherwise crack and break over time, do they need to be
      replaced periodically?

      A. They need to be replaced periodically.

Based on this deposition testimony, Plaintiffs argued, “Greenberg has
provided ample testimony of her experience with the transformation of
j-tubes and Plaintiffs should be allowed to present evidence on this issue.”

¶21           The superior court denied motion in limine no. 12, “subject
to proper foundation being laid.” At trial, Plaintiffs attempted to question
Nurse Greenberg about changes in J-tubes over time. That brief exchange
occurred as follows:

      Q. Do you have any knowledge or experience with the
      integrity of J-tubes changing because of exposure to bodily
      fluid secretions and enteral feedings?

      [DEFENSE COUNSEL]:          Your Honor, lack of disclosure.
      May we approach?

      (Bench conference held.)

      THE COURT: Objection sustained.



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                        BRUMETT v. MGA HOME
                          Decision of the Court

The record on appeal does not include a transcript of the bench
conference. In the absence of a transcript, this Court presumes the record
supports the sustaining of Defendants’ objection on “lack of disclosure”
grounds. See Johnson v. Elson, 192 Ariz. 486, 489, ¶ 11 (App. 1998).

¶22           In their motion for new trial, Plaintiffs argued that they also
attempted to question Drs. Beck and Banerjee at trial about changes in
J-tubes. The trial transcripts do not support this assertion. No such
questions were posed to Dr. Banerjee.5 Nor did Plaintiffs’ counsel
question Dr. Beck about this topic. During cross-examination, Dr. Beck
testified he does not insert or care for feeding tubes and does not know
whether the ends of J-tubes are “stiff and sharp or soft and pliable.”
Plaintiffs did not revisit this topic with Dr. Beck during his re-direct
testimony.

¶23            The question thus becomes whether the record supports the
superior court’s conclusion “it was in error not to permit testimony from
Plaintiffs’ witnesses ‘regarding the hardening of the feeding tube’ that was
the subject of Defendants’ Motion in Limine #12.” Because Plaintiffs
attempted to question only Nurse Greenberg on this point, the only
potential error would be in sustaining the non-disclosure objection to her
testimony.

¶24           At deposition, Nurse Greenberg testified that the structural
integrity of a feeding tube can change over time, but she did not discuss
what might cause such changes. The question posed at trial was whether
the integrity of J-tubes changes “because of exposure to bodily fluid
secretions and enteral feedings.” Nothing in Nurse Greenberg’s
deposition testimony addressed causative factors, and Plaintiffs’ pretrial
disclosure stated only that Greenberg would testify “in accordance with
her deposition testimony.” See Rule 26.1(a)(6) (Party calling expert
witness at trial must disclose, inter alia, “the substance of the facts and
opinions to which the expert is expected to testify” and “a summary of the
grounds for each opinion.”).

5      The court and counsel did, however, discuss whether a nurse
practitioner’s note included in Dr. Banerjee’s medical records, reflecting
that a previous J-tube had “crystallized,” should be redacted. Defense
counsel avowed, without contradiction, that Dr. Banerjee testified at her
deposition that she did not know what the “crystallized” reference meant.
There is no indication in the record that Plaintiffs disclosed any opinions
Dr. Banerjee intended to offer regarding changes in J-tubes over time.



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                         BRUMETT v. MGA HOME
                           Decision of the Court

¶25            Furthermore, unlike its ruling on motion in limine no. 18, the
superior court did not find that sustaining the objection to Nurse
Greenberg’s testimony prejudiced Plaintiffs. See Rule 59(a) (court may
grant a new trial for identified reasons that materially affect the movant’s
rights); Simpson v. Heiderich, 4 Ariz. App. 232, 234 (1966) (“[A]ny prejudice
to a litigant must be ‘affirmatively probable’ to constitute grounds to set
aside the verdict or grant a new trial.”). If Nurse Greenberg’s expert
opinions were not properly disclosed, there could be no prejudice in
precluding her testimony. Additionally, as Defendants note, Dr. Schuster
testified at trial that since his deposition, where he stated he had never
seen a hardened J-tube, he had in fact seen a tube that had hardened. See
Ott v. Samaritan Health Serv., 127 Ariz. 485, 489 (App. 1980) (excluded
evidence that “essentially repeats, and in some instances elaborates on,”
presented testimony is cumulative and thus not prejudicial).

¶26          For the foregoing reasons, the record does not support the
grant of a new trial based on Plaintiffs’ inability to present testimony
“regarding the hardening of the feeding tube.”

III.   Other Grounds Asserted in Plaintiffs’ Motion for New Trial

¶27            The new trial order was based solely on the two grounds
discussed supra. See Rule 59(m) (“No order granting a new trial shall be
made and entered unless the order specifies with particularity the ground
or grounds on which the new trial is granted.”). Plaintiffs nevertheless
ask this Court to affirm that order on four grounds rejected by the
superior court: (1) violation of a ruling on a motion in limine relating to
statements by Connie and the “erroneous” reversal of that ruling during
trial; (2) error in excluding Bosman’s deposition and nursing board
records; (3) Plaintiffs’ inability to offer evidence that earlier treatment
could have prevented Connie’s death; and (4) Defendants’ use of medical
records during their closing argument.

¶28           We address each argument in turn, concluding that none of
the stated grounds required the grant of a new trial.

       A.     Statements by Connie

¶29            Plaintiffs filed a motion in limine asking the court to
“exclude any testimony about statements attributed to Connie Brumett
that are contained in nursing records prior to November 23, 2009.”
Specifically, Plaintiffs objected to record entries reflecting that Connie said
“[h]elp me,” or words to that effect, on approximately 40 prior occasions.
Plaintiffs argued these statements were irrelevant. Defendants opposed


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                       BRUMETT v. MGA HOME
                         Decision of the Court

the motion, contending it would be “extremely prejudicial to the defense
for the jurors to learn that Mrs. Brumett yelled ‘help me’ on November
23–24, 2009, without knowing she did this frequently in the six months
prior to the jejunum perforation.” The superior court granted Plaintiffs’
motion “subject to further argument at trial.”

¶30            The court and counsel revisited this issue during trial,
outside the jury’s presence, after Billy testified that he read “the entire
record” after Bosman left her shift on November 24, 2009 and did not
recall it saying “anything about [Connie] making statements like, ‘Stop,
you’re hurting me,’ or any kind of crying out in pain.” Defense counsel
argued Plaintiffs had “opened the door” to the “help me” references
included in the nursing records. The court agreed, ruling it would “allow
questions to be asked and evidence to be received with regard to
Ms. Brumett’s cries for help.”

¶31            The court did not abuse its discretion. “[W]here one party
injects improper or irrelevant evidence or argument, the ‘door is open,’
and the other party may have a right to retaliate by responding with
comments or evidence on the same subject.” Pool v. Superior Court, 139
Ariz. 98, 103 (1984). The court could reasonably conclude that Billy’s
comment about reviewing “the entire record” opened the door to the
previously precluded evidence about Connie’s earlier calls for help.
Plaintiffs also contend defense counsel improperly mentioned Connie’s
“[h]elp me” statements during his opening statement, before the door had
been opened. They did not, however, object to those comments and have
therefore waived the issue for purposes of appeal.

      B.     Bosman’s Deposition and Nursing Records

¶32           After Connie’s death, Plaintiffs filed a complaint against
Bosman with the Arizona Nursing Board. Bosman was diagnosed with
dementia in 2011 and entered into a consent decree in August 2011
whereby she voluntarily surrendered her nursing license. The Pinal
County Superior Court determined Bosman was incapacitated and
appointed the public fiduciary as her guardian and conservator for
purposes of “manag[ing] the defense of Brumett vs. MGA Home Health
Care, et al.” When Plaintiffs deposed Bosman, she did not recall Connie
Brumett or working as a nurse.

¶33        Plaintiffs contend the court erred by precluding their use of
Bosman’s deposition and nursing board records at trial. We conclude
otherwise.



                                    11
                         BRUMETT v. MGA HOME
                           Decision of the Court

¶34           Plaintiffs did not allege Bosman was mentally compromised
when she cared for Connie. In fact, when Defendants moved in limine to
preclude any suggestion Bosman was impaired while caring for Connie,
Plaintiffs responded that they had no objection to the motion. Under
these circumstances, the superior court could properly conclude the
subsequent dementia diagnosis and license surrender were irrelevant to
the issues before the jury.6 See, e.g., Mulhern v. City of Scottsdale, 165 Ariz.
395, 398–99 (App. 1990) (no error in precluding evidence of defendant’s
chemical dependency because no evidence suggested he was under the
influence at the time of the incident); Ornelas v. Fry, 151 Ariz. 324, 330
(App. 1986) (Affirming trial court’s “evidentiary ruling requiring a specific
and particularized factual predicate of alcohol-related impairment” at the
time the defendant doctor performed surgery.).

¶35          In terms of the deposition, Defendants filed a motion in
limine asking the court to preclude its use at trial because Bosman’s
dementia “rendered it impossible for her to give intelligent answers to the
questions.” According to Defendants, it would “waste the Court’s time
and the jury’s time to see this unfortunate woman struggle to answer
questions regarding events she could no longer remember.” Defendants
further contended they would be “extremely prejudiced” if jurors viewed
the videotaped deposition — especially because there was no indication
Bosman was suffering from mental impairment while caring for Connie.
In opposing Defendants’ motion, Plaintiffs expressed skepticism about
Bosman’s professed lack of memory at her deposition, especially when
compared to her behavior during the preceding months. The court
granted Defendants’ motion.

¶36          Based on the record and arguments before it, the superior
court did not abuse its discretion by precluding the use of nursing board


6      The consent decree includes one finding of fact:

       In about June 2011, Respondent was diagnosed with
       dementia. Because of her psychiatric condition, Respondent
       is unable to work as a nurse.

The conclusions of law state that this finding constitutes “unprofessional
conduct pursuant to A.R.S. § 32-1601(16)(e) (being mentally incompetent
or physically unsafe to a degree that is or might be harmful or dangerous
to the health of a patient or the public).”




                                      12
                        BRUMETT v. MGA HOME
                          Decision of the Court

records and Bosman’s deposition at trial. Because that evidentiary ruling
was not erroneous, and nothing at trial altered the factual or legal
significance of these matters, the court also did not abuse its discretion by
denying a new trial on this basis.

      C.     Earlier Treatment

¶37          Defendants filed a motion in limine to preclude “any
argument, evidence or testimony that earlier treatment would have
altered Mrs. Brumett’s outcome.” The motion noted that Plaintiffs’
causation expert, Dr. Beck, testified at deposition that he had not
formulated an opinion on that issue and that Plaintiffs had disclosed no
other expert opinion regarding the efficacy of earlier treatment. In
response, Plaintiffs did not dispute Defendants’ assertions, but argued
that Dr. Beck testified “he could and would offer his qualified opinions
when asked” and that Defendants “opened the door” to testimony about
whether earlier treatment would have altered the outcome. The superior
court granted Defendants’ motion.

¶38            Plaintiffs have demonstrated no abuse of discretion. They
did not disclose any expert opinion that earlier treatment would have led
to a different outcome. See Rule 26.1(a)(6) (expert witness disclosure
requirements). And once again, nothing transpired during trial that
changed the factual or legal analysis of this issue. The superior court did
not err by precluding the challenged evidence or by denying a new trial
on that basis.

      D.     Medical Records Used During Closing Argument

¶39            Plaintiffs contend Defendants improperly referred to
medical records of Dr. Abdo and Dr. Khanna during closing arguments.
Plaintiffs, however, did not interpose a timely objection. The record
suggests (and Plaintiffs do not claim otherwise) that Plaintiffs voiced an
objection only after the jury had been excused to deliberate. Plaintiffs
waived the asserted error by failing to timely object. See Ariz. R. Evid.
103(a); S. Ariz. Freight Lines v. Jackson, 48 Ariz. 509, 518 (1936) (“Parties
may not sit by and allow error which is not fundamental to be committed,
without protesting and asking the trial court to correct the error at the
time, and then later, when the judgment goes against them, ask for a new
trial on that ground.”).




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                       BRUMETT v. MGA HOME
                         Decision of the Court

                             CONCLUSION

¶40           For the foregoing reasons, we vacate the superior court’s
order granting a new trial and remand with instructions to enter judgment
on the jury’s verdict in favor of Defendants.




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




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