                                IN THE
            ARIZONA COURT OF APPEALS
                             DIVISION ONE


               In re the Matter of the Conservatorship for:

                      CATHIE HARDT, An Adult.

  LORRIE NEVENS, Special Conservator for Cathie Hardt, on behalf of
      Cathie Hardt; LORRIE NEVENS; and JEFFREY NEVENS,
                       Plaintiffs/Appellants,

                                    v.

  AZHH, LLC, an Arizona limited liability company formerly known as
          Arizona Heart Hospital, LLC, Defendant/Appellee.

                          No. 1 CA-CV 15-0532
                            FILED 5-30-2017


          Appeal from the Superior Court in Maricopa County
                         No. PB 2009-002468
              The Honorable Edward W. Bassett, Judge

                    REVERSED AND REMANDED


                               COUNSEL

Solomon & Relihan, PC, Phoenix
By Martin J. Solomon, Kevin J. McAlonan
Co-Counsel for Plaintiffs/Appellants

The Breslo Law Firm, LLC, Scottsdale
By John C. Breslo
Co-Counsel for Plaintiffs/Appellants
Lewis Brisbois Bisgaard & Smith, LLP, Phoenix
By James K. Kloss
Counsel for Defendant/Appellee

Lewis Brisbois Bisgaard & Smith, LLP, Atlanta, GA
By Joelle C. Sharman
Pro Hac Vice Counsel for Defendant/Appellee



                                 OPINION

Judge Margaret H. Downie delivered the opinion of the Court, in which
Presiding Judge Diane M. Johnsen and Judge John C. Gemmill1 joined.


D O W N I E, Judge:

¶1            Cathie Hardt and Lorrie Nevens (collectively, “Appellants”)
appeal a final judgment entered after a jury trial that resulted in a defense
verdict.2 Because we conclude the superior court improperly precluded
Appellants’ rebuttal causation expert as “duplicative,” and Appellants
have demonstrated resulting prejudice, we reverse and remand for a new
trial.

                 FACTS AND PROCEDURAL HISTORY

¶2            Hardt was admitted to the Arizona Heart Hospital
(“AZHH”) in the early morning hours of August 25, 2008 with “complete
occlusion of the distal aorta at its bifurcation, which presented as pulseless
lower extremities.” She was deemed a “high-risk” patient at risk of death
without removal of the blockage. Hardt underwent surgery at AZHH that
same morning.

¶3         On August 27, AZHH staff documented the presence of
Stage I and II ulcers on Hardt’s back and sacral/coccyx area. By

1      The Honorable John C. Gemmill, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article VI, Section 3 of the Arizona Constitution.

2     Although Jeffrey Nevens was originally named as a plaintiff, he
was dismissed as a party and is not involved in this appeal.



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                          Opinion of the Court

September 9, 2008, the ulcers had progressed to Stage III, and upon
discharge from AZHH on September 18, 2008 to Heartstone Hospital-
Mesa, LLC, dba Trillium Specialty Hospital-East Valley (“Trillium”),
Hardt had a Stage IV ulcer.

¶4          Appellants sued AZHH and Trillium, alleging Hardt was a
vulnerable adult who developed “avoidable pressure ulcers due to
substandard nursing care, negligence, abuse, and neglect.” The court
ordered the claims against Trillium arbitrated, but the lawsuit against
AZHH proceeded.

¶5            After a nine-day trial, the jury returned a verdict in favor of
AZHH. Appellants unsuccessfully moved for a new trial pursuant to
Arizona Rule of Civil Procedure (“Rule”) 59. After the superior court
issued its final judgment, Appellants timely appealed.             We have
jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) sections
12-120.21(A)(1) and -2101(A)(5)(a).

                              DISCUSSION

I.    Preclusion of Appellants’ Rebuttal Expert

¶6           Joseph Silva, M.D. testified as a causation expert during
Appellants’ case-in-chief. Dr. Silva, who is Board-certified in internal
medicine and has a specialty in infectious disease, opined that Hardt
developed pressure ulcers during her stay at AZHH that were
preventable through repositioning, wound care, and adequate nutrition.
Dr. Silva did not offer opinions regarding vascular issues, testifying he
would defer to a vascular surgeon on that topic.

¶7            During its case-in-chief, AZHH called Gerald Treiman, M.D.
— a Board-certified general and vascular surgeon — to testify as its
causation expert. Dr. Treiman opined that Hardt’s ulcers were caused by
a lack of blood flow that pre-dated her admission to AZHH.

¶8           Appellants planned to call vascular surgeon Paul Collier,
M.D. as a rebuttal witness to refute Dr. Treiman’s opinions. After the
defense rested, however, AZHH orally moved to preclude Dr. Collier,
arguing he would be “a repetitive causation expert” in violation of Rule
26. The superior court agreed, labeling Dr. Collier “a duplicative expert”
and precluding his testimony.

¶9          A ruling admitting or excluding evidence will not be
overturned on appeal absent abuse of discretion and resulting prejudice.


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Schwartz v. Farmers Ins. Co. of Ariz., 166 Ariz. 33, 37 (App. 1990). If an
evidentiary ruling is predicated on a question of law, however, we review
that ruling de novo. Yauch v. S. Pac. Transp. Co., 198 Ariz. 394, 399, ¶ 10
(App. 2000). And even when a ruling is discretionary, “[a] court abuses its
discretion if it commits an error of law in reaching a discretionary
conclusion.” Flying Diamond Airpark, LLC v. Meienberg, 215 Ariz. 44, 50,
¶ 27 (App. 2007).

¶10           Rule 26(b)(4)(D) states that “[u]nless the parties agree or the
court orders otherwise for good cause, each side is presumptively entitled
to call only one retained or specially employed expert to testify on an
issue.” The rule, however, contemplates “liberal expansion of its
presumptive limitation when ‘an issue cuts across several professional
disciplines.’” Sanchez v. Old Pueblo Anesthesia, P.C., 218 Ariz. 317, 322 ¶ 18
(App. 2008) (quoting Ariz. R. Civ. P. 26(b)(4) cmt. to 1991 amend.).

¶11           To the extent Dr. Collier’s rebuttal testimony would have
focused on vascular issues, it would not have been duplicative of or
cumulative to Dr. Silva’s because Dr. Silva had not addressed such
matters. “[T]he intent of Rule 26(b)(4)(D) is simply to limit the
presentation of cumulative evidence,” id., meaning evidence that “merely
augments or tends to establish a point already proved by other evidence,”
State v. Kennedy, 122 Ariz. 22, 26 (App. 1979).

¶12           AZHH’s closing argument made it abundantly clear that
Dr. Silva’s opinions and expertise were qualitatively different from (and,
in AZHH’s view, inferior to) a vascular surgeon’s. Counsel argued:

       [Dr. Silva is] a nice guy, but he ain’t the right type of doctor
       for this case, he’s not a vascular surgeon; he’s not even a
       surgeon -- not a vascular surgeon. He doesn’t have the right
       expertise.

       ...

       Dr. Treiman was the only vascular surgeon you heard from
       as an expert witness. You didn’t hear any other vascular
       surgeon. You didn’t hear anybody with the right expertise.

       ...

       So we put on the person with the right expertise. We put on
       the person who was best qualified, best able to talk about
       what happened, why it was in this case. And what did that


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                          Opinion of the Court

      one and only vascular surgeon when you talk about
      causation, what caused this. What did that one and only
      expert tell you?

¶13           Contrary to AZHH’s suggestion on appeal, there is nothing
untoward about Appellants making a “strategic” decision to wait to call
Dr. Collier in rebuttal, as opposed to during their case-in-chief. See City
Transfer Co. v. Johnson, 72 Ariz. 293, 297 (1951) (“[T]he law is well settled
that the mere fact that testimony might have been introduced as a part of
the case in chief will not preclude its being made a part of the rebuttal.”).
“Rebuttal evidence is to counter a new fact or allegation made by an
opponent’s case.” Jansen v. Lichwa, 13 Ariz. App. 168, 171 (1970).
Appellants’ theory of causation was, as Dr. Silva testified, that negligence
by medical professionals at AZHH caused Hardt’s ulcers. Unless and
until AZHH placed evidence before the jury that Hardt’s ulcers were
caused by pre-existing vascular issues, Appellants had no reason to
present testimony by a vascular expert. Appellants presented a prima facie
case of causation during their case-in-chief through Dr. Silva based on
their theory of the case — not AZHH’s defense. They were not required to
do otherwise.

¶14           In opposing the motion for new trial, AZHH argued that
Appellants “sought to duplicate Dr. Silva by also calling Dr. Collier to
testify on causation issues.”      The record does not support this
characterization. Although some of Dr. Collier’s disclosed opinions might
have duplicated Dr. Silva’s, and thus been properly excluded as
cumulative if Appellants had sought to offer them at trial,3 it is clear from
Appellants’ pretrial disclosures that, unlike Dr. Silva, Dr. Collier would
discuss and refute Dr. Treiman’s opinion that vascular conditions caused
Hardt’s ulcers.

¶15           AZHH also faults Appellants for not making a more detailed
proffer to the court about Dr. Collier’s intended rebuttal testimony. But it
was not until the close of day six of trial that AZHH orally moved to
preclude Dr. Collier. Until that time, the record suggests Appellants had
every reason to believe Dr. Collier would be permitted to testify in
rebuttal. They had properly disclosed and listed both Dr. Silva and
Dr. Collier as witnesses in the joint pretrial statement. Although AZHH

3      For example, one of Dr. Collier’s disclosed opinions was that “[t]he
lack of pressure relief was clearly the cause of the pressure ulcer” — an
opinion that would have been cumulative.



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objected to other witnesses Appellants listed, it did not object to
Dr. Collier. AZHH filed pretrial motions to preclude other expert
witnesses, including one motion asserting that Appellants were offering
another expert in violation of Rule 26(b)(4)(D) because she would
duplicate other standard-of-care expert testimony. Yet there was no
indication until more than halfway through trial that AZHH would seek
to preclude Dr. Collier. Moreover, the superior court had the necessary
information before it, having heard Dr. Silva specifically testify he was not
opining about vascular issues.

¶16          Rule 16(g)(2)(D) requires a joint pretrial statement to contain

      a list of witnesses each party intends to call to testify at trial,
      identifying those witnesses whose testimony will be
      presented solely by deposition. Each party must list any
      objection to a witness and the basis for that objection.

(Emphasis added.) “The pretrial statement serves to narrow the scope of
the legal and factual issues to those which are truly legitimate, prevents
surprises and facilitates the trial of the case. The pretrial statement
controls the subsequent course of the litigation.” Aetna Cas. & Sur. Co. v.
Dini, 169 Ariz. 555, 557 (App. 1991) (addressing predecessor rule to Rule
16(g)). Issues that are not identified in the pretrial statement may be
deemed waived. Carlton v. Emhardt, 138 Ariz. 353, 355 (App. 1983). Rule
26(b)(4)(D) is not intended as a vehicle to permit last-minute objections
during trial, especially when the party urging preclusion has not
previously objected as required by Rule 16(g)(2)(D). Cf. Perguson v. Tamis,
188 Ariz. 425, 429 (App. 1996) (addressing prior rule prescribing one
expert per issue and holding that the rule should not be used as “a
weapon of destruction” in an “arsenal of technicalities”).

¶17          Appellants have also demonstrated that they were
prejudiced by the preclusion of Dr. Collier’s testimony. AZHH’s closing
argument alone demonstrates the prejudice. Based on the erroneous
exclusion of Dr. Collier’s testimony, we vacate the judgment in favor of
AZHH and remand for a new trial.

II.   Consortium Claim

¶18           The superior court entered judgment as a matter of law
against Nevens (Hardt’s daughter) on her loss of consortium claim,
finding the evidence insufficient to submit that claim to the jury. Because
we are remanding this matter for a new trial, we need not address
Nevens’ consortium claim in depth. We note, however, that a child


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                        NEVENS et al. v. AZHH LLC
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asserting loss of consortium as to a parent need not present evidence of
catastrophic injuries. See, e.g., Miller v. Westcor Ltd. P’ship, 171 Ariz. 387,
395 (App. 1991) (“The focus of the trial court’s inquiry is on the
interference with the normal relationship between parent and child.”). It
is unclear what standard the superior court applied to Nevens’ loss of
consortium claim, which may be re-litigated on remand.

III.   Testimony by Former AZHH Employee

¶19          Because the issue may arise on remand, we address
Appellants’ challenge to the preclusion of certain testimony by Pamela
Molyneaux — a former AZHH employee who worked as a clinical
document specialist.

¶20           AZHH moved in limine to preclude Molyneaux from
testifying “about liability or billing” in the context of hospital chart entries
reflecting the presence of skin ulcers. Appellants opposed the motion,
arguing Molyneaux had testified at deposition that entries were added to
Hardt’s chart to reflect the presence of pressure ulcers when she was
admitted to the hospital and that documenting ulcers is a “liability issue.”
AZHH responded that it was not contending Hardt had ulcers when
admitted to its facility. The superior court ruled:

       [T]he plaintiff will be allowed to examine Molyneaux as to
       . . . her work as a clinical document specialist in chart review
       and in placing in the charts the documents that, according to
       the plaintiffs’ theory, may have induced two doctors to make
       a chart entry that was incorrect. So be allowed to establish
       that, and be allowed to establish the -- that that was done . . .
       for the purposes of -- of making sure the hospital received
       maximum reimbursement from insurance providers.

       I do not find, based upon what has been presented to me,
       that there’s adequate foundation for Molyneaux to testify
       that the reason for the query was . . . for purposes of limiting
       the hospital’s liability. From everything that was presented
       to me, that seemed to be extraordinarily equivocal and not
       based on adequate foundation, . . . would be an improper
       opinion by someone who is not being offered or qualified as
       an expert.

¶21            “In determining relevancy and admissibility of evidence,
the trial judge has considerable discretion. . . . Evidence is relevant if it
has any basis in reason to prove a material fact in issue.” State v. Smith,


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                        NEVENS et al. v. AZHH LLC
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136 Ariz. 273, 276 (1983); see Ariz. R. Evid. 401 (“Evidence is relevant if: (a)
it has any tendency to make a fact more or less probable than it would be
without the evidence; and (b) the fact is of consequence in determining the
action.”). Had AZHH taken the position that Hardt had pressure ulcers
upon admission, more expansive testimony by Molyneaux might have
been relevant to challenge the veracity of that assertion. But the superior
court could reasonably conclude that whether AZHH had incentive to
evade liability or recover enhanced reimbursement from an insurer or
third-party payor by falsely documenting the existence of ulcers upon
admission was irrelevant to the questions before the jury — i.e., whether
AZHH committed medical negligence or abused a vulnerable adult.
Additionally, the record supports the court’s finding that Molyneaux’s
testimony about liability was “extraordinarily equivocal” and lacking in
foundation.

¶22            To the extent Appellants also challenge the preclusion of a
July 31, 2008 letter from the Center for Medicaid and State Operations, the
record reveals no abuse of discretion based on information before the
court at the time of its ruling. The letter at issue addresses Medicare
billing and reimbursement policies effective October 1, 2008 for “selected
hospital-acquired conditions,” including pressure ulcers. The policy was
not in effect during Hardt’s stay at AZHH, Hardt was not a Medicare
patient, AZHH’s billing practices were not at issue, and the superior court
concluded the document had “the potential for . . . generating confusion.”

IV.    Remaining Issues

¶23            Appellants identify two additional issues that we do not
reach: (1) the submission of Trillium’s fault to the jury; and (2) the court’s
handling of a jury question received during deliberations. The second
issue is not likely to recur on remand. And the first issue, as framed,
relates to the court’s decision during trial to reverse an earlier ruling
precluding a non-party at fault defense. Given the defense verdict, the
jury had no occasion to consider comparative fault, and Appellants thus
suffered no prejudice. We express no opinion about whether AZHH may
present a non-party at fault defense at the new trial.




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                     NEVENS et al. v. AZHH LLC
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                            CONCLUSION

¶24           For the foregoing reasons, we reverse the judgment of the
superior court and remand for a new trial. We award Appellants their
taxable costs on appeal contingent on compliance with Arizona Rule of
Civil Appellate Procedure 21.




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




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