                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


         FELICIA NYEMAH, a single woman, Plaintiff/Appellant,

                                        v.

JEFF FORRER and TERI FORRER, husband and wife, Defendants/Appellees.

                             No. 1 CA-CV 14-0319
                                FILED 5-28-2015


           Appeal from the Superior Court in Maricopa County
                          No. CV 2012-005411
                The Honorable Lisa Daniel Flores, Judge

                                  AFFIRMED


                                   COUNSEL

Warnock MacKinlay & Carman, PLLC, Scottsdale
By James Sparks
Counsel for Plaintiff/Appellant

Herman Goldstein Law Firm, Phoenix
By Evan S. Goldstein, Hesam Alagha
Counsel for Defendants/Appellees
                           NYEMAH v. FORRER
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Margaret H. Downie delivered the decision of the Court,
in which Judge Patricia K. Norris and Judge Randall M. Howe joined.


D O W N I E, Judge:

¶1           Felicia Nyemah appeals from the entry of judgment as a
matter of law against her on the issue of future medical expenses. For the
following reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2           Nyemah and Jeff Forrer were involved in a car accident.
Nyemah was initially diagnosed with a neck strain. She later saw a
chiropractor for back and neck pain. At the chiropractor’s suggestion,
Nyemah sought treatment from Dr. Patrick Hogan — a pain specialist.

¶3            Nyemah sued Forrer and his wife (collectively, “Forrer”) for
negligence. A jury trial ensued. At the conclusion of Nyemah’s case-in-
chief, Forrer moved for judgment as a matter of law (“JMOL”) on the issue
of future medical expenses. The superior court granted the motion.

¶4           The jury awarded Nyemah $10,000 in damages, but found
her to be 30% at fault, reducing her recovery to $7000. Because Forrer had
made a pretrial offer of judgment for $19,100, the superior court offset the
jury’s damages award with Rule 68 sanctions and taxable costs to which
Forrer was entitled. The net effect was a judgment against Nyemah in the
sum of $687.41. Nyemah timely appealed.

                               DISCUSSION

¶5             Nyemah argues the superior court erred by granting JMOL
on the issue of future medical expenses because Dr. Hogan offered the
requisite proof of such expenses. “We review de novo whether a trial
court should have granted a motion for JMOL.” A Tumbling-T Ranches v.
Flood Control Dist. of Maricopa Cnty., 222 Ariz. 515, 524, ¶ 14, 217 P.3d 1220,
1229 (App. 2009). A motion for JMOL should be granted if “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.” Ariz. R.
Civ. P. 50(a)(1).


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                            NYEMAH v. FORRER
                            Decision of the Court

¶6             Dr. Hogan’s videotaped deposition testimony was presented
to the jury at trial. Although Dr. Hogan opined that Nyemah’s injuries are
permanent, the “mere fact of permanency” of an injury “does not in itself
constitute a sufficient basis for the award of future medical expenses.”
Valley Nat’l Bank of Ariz. v. Haney, 27 Ariz. App. 692, 694, 558 P.2d 720, 722
(1976). “Arizona courts have consistently followed the rule that in order
for a trial court to properly submit the question of future medical
expenses to the jury, the need for future care must be reasonably probable
and there must be some evidence of the probable nature and cost of the
future treatment.” Saide v. Stanton, 135 Ariz. 76, 77, 659 P.2d 35, 36 (1983).
“Whether future medical expenses are reasonably probable or certain is
determined from all the relevant circumstances which are before the
court.” Id. at 78, 659 P.2d at 37.

¶7              A plaintiff must establish both the fact of damages
attributable to a defendant and the amount of damages. “[T]he amount of
damages may be established with proof of a lesser degree of certainty than
required to establish the fact of damages.” Rancho Pescado, Inc. v. Nw. Mut.
Life Ins. Co., 140 Ariz. 174, 184, 680 P.2d 1235, 1245 (App. 1984); see also Farr
v. Transam. Occidental Life Ins. Co. of Cal., 145 Ariz. 1, 6, 699 P.2d 376, 381
(App. 1984) (“Speculative or uncertain damages . . . will not support a
judgment and proof of the fact of damages must be of a higher order than
proof of the extent thereof.”).

¶8           The deficiency of proof in this case relates to the fact of
damages. Dr. Hogan repeatedly tied the need for future care (i.e., the fact
of damages) to Nyemah’s symptoms. However, Dr. Hogan had not seen
Nyemah since April of 2013 — more than nine months before trial began
— and could not testify regarding her current status. He stated he was
“hoping that she did well” with the treatment he provided and testified as
follows during cross-examination:

       Q.    But you would actually have to have the plaintiff come
       into your office and talk to her before you could prescribe
       her or recommend any additional injection therapy?

       A.    Correct. Yeah, especially it’s been a long time, I would
       want to see her again in the office before we resumed.

       ...

       Q:     [Y]ou have no idea whether or not plaintiff will ever
       receive any additional injections?



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                           NYEMAH v. FORRER
                           Decision of the Court

       A:     I mean, if she comes back, I would be happy to take
       care of her.

       Q:     You have no idea if she’ll ever come back?

       A:     I hope she never needs to.

       Q:     And you have no appointments with her?

       A:     Not that I’m aware of.

       ...

       Q:    It would be pure speculation for you to indicate that
       she will, in fact, need future treatment if you don’t know
       what her symptoms are?

       ...

       A:    Oh, yeah, before ordering more injections, I would
       want to, you know, speak with her and examine her and see
       where her pain complaints are, if they’re more radicular or
       more from the joints.

¶9             The law does not require absolute certainty before a claim
for future medical expenses can be submitted to the jury. See Besch v.
Triplett, 23 Ariz. App. 301, 302-03, 532 P.2d 876, 877-78 (1975). However,
“the jury cannot be allowed to speculate or guess in making allowance for
future medical expenses.” Saide, 135 Ariz. at 77, 659 P.2d at 36.

¶10            Because Dr. Hogan lacked current information, the most he
could do was testify about available pain management treatment if
Nyemah were to return to him, and if her symptoms warranted the
procedures. See Griffen v. Stevenson, 1 Ariz. App. 311, 313, 402 P.2d 432,
434 (1965) (error to instruct on future surgical needs where doctor had
seen plaintiff a “few months” before trial and could testify only that “if the
patient’s arm still remains in a discomforting and a disabling condition,
then I would consent to consider him for a surgical procedure.”). We
recognize that Dr. Hogan also testified about “averages” and “clinical
experience” suggesting Nyemah will “need ongoing care at some point
down the road.” However, this case is distinguishable from the appellate
decisions relied on by Nyemah because the testifying physician lacked any
current information about the patient’s status. See Saide, 135 Ariz. at 78,
659 P.2d at 37 (medical expert’s use of “a ‘magic word’ or phrase such as



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                           NYEMAH v. FORRER
                           Decision of the Court

‘probability’ is not determinative.”); City of Tucson v. Holliday, 3 Ariz. App.
10, 19-20, 411 P.2d 183, 192-93 (1966) (error for trial court to instruct on
future medical expenses where physician offered both an “optimistic”
view that plaintiff would need no further treatment and a “pessimistic”
view that her permanent disability would require future treatment).
Under these circumstances, the superior court did not err by concluding
that Nyemah had failed to provide “a legally sufficient evidentiary basis”
for an award of future medical expenses. See A Tumbling-T Ranches, 222
Ariz. at 524, ¶ 14, 217 P.3d at 1229.

                              CONCLUSION

¶11           We affirm the judgment of the superior court. We award
Forrer his taxable costs on appeal upon compliance with ARCAP 21.




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