                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


         JAMIE ROCHON, as a single woman, Plaintiff/Appellant,

                                        v.

 DANIEL C. GRANT, D.C., an individual, and DANIEL C. GRANT and
 CASEY GRANT, as husband and wife; GRANT CHIROPRACTIC LIFE
CENTER, P.C., an Arizona professional corporation, Defendants/Appellees.

                             No. 1 CA-CV 15-0745
                                 FILED 3-30-17


           Appeal from the Superior Court in Maricopa County
                          No. CV2012-003681
                 The Honorable James T. Blomo, Judge

                      REVERSED AND REMANDED


                                   COUNSEL

Weeks Law Office, PLLC, Phoenix
By Robert Weeks
Counsel for Plaintiff/Appellant

Broening, Oberg, Woods & Wilson, P.C., Phoenix
By Kevin R. Myer, James R. Broening, Megan E. Gailey
Counsel for Defendants/Appellees
                         ROCHON v. GRANT et al.
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Jon W. Thompson joined.


W I N T H R O P, Judge:

¶1             Jamie Rochon (“Rochon”) appeals the trial court’s order
granting judgment as a matter of law on her claim for punitive damages
against Daniel Grant, D.C. (“Dr. Grant”). Rochon also appeals several of
the trial court’s evidentiary rulings as they pertain to her claim for punitive
damages. For the following reasons, we reverse the superior court’s grant
of judgment as a matter of law on Rochon’s punitive damages claim and
remand for a new trial on the issue of punitive damages. We also reverse
the trial court’s evidentiary rulings as outlined below.

                 FACTS AND PROCEDURAL HISTORY

¶2            Dr. Grant has a doctor of chiropractic degree from Life
University and practices as a chiropractor at Grant Chiropractic Life Center
in Chandler, Arizona. In 2006, Dr. Grant began providing chiropractic care
to Rochon. Pertinent medical history indicated that Rochon was diagnosed
at childhood with scoliosis, and previously had titanium rods implanted in
her spine to stabilize that condition. At the time he began providing
chiropractic care to Rochon in 2006, Dr. Grant was aware of the rods, and
claims he contemporaneously documented the presence or position of the
rods in his initial patient record.1 Dr. Grant conceded at trial that the
presence of these rods is generally considered a contraindication for
manipulation in that area of the spine.

¶3          On February 8, 2010, Dr. Grant performed a chiropractic
adjustment on Rochon; she alleged it was in the area over the titanium rods,


1      Evidence admitted at trial brought into question whether Dr. Grant
altered his initial patient record after learning that Rochon intended to sue
him. Dr. Grant testified that, although his office record for any subsequent
patient encounter with Rochon did not expressly reference the presence of
the rods, his computer would simultaneously display her prior spinal x-
rays, which showed the presence of the rods. We do not express any
opinion concerning these credibility issues.


                                      2
                         ROCHON v. GRANT et al.
                           Decision of the Court

but Dr. Grant contended he was adjusting her shoulder.                The
uncontroverted evidence is that the adjustment caused Rochon to scream
out in pain. After Rochon “calm[ed] down a little bit,” Dr. Grant
recommended Rochon return for further care in “the next day or two.”
Rochon returned four days later, at which point Dr. Grant took x-rays and
examined her. Rochon went back to Dr. Grant for treatment two more times
that month, and then never returned.

¶4            In February 2012, Rochon filed a medical malpractice
complaint against Dr. Grant. Rochon alleged that Dr. Grant negligently
caused her injury by performing a chiropractic adjustment over the
titanium rods in her spine. Rochon further contended that the injury was
caused in part by Dr. Grant’s inaccurate documentation of prior office
visits, which she alleged were below the chiropractic standard of care for
patient record keeping.2

¶5           Dr. Grant denied the allegations, but, in January 2013, served
an offer of judgment on Rochon. Rochon did not accept the offer of
judgment, and later, with the trial court’s approval, filed an amended
complaint, adding a claim for punitive damages.

¶6           Before trial, Dr. Grant moved for partial summary judgment
on Rochon’s claims relating to the documentation practices, arguing
Rochon could not prove by a reasonable degree of medical probability that
her injury was caused by Dr. Grant’s record-keeping practices.3 The trial
court granted the motion.



2      Pursuant to Arizona Administrative Code R4-7-902(5),
“[u]nprofessional or dishonorable conduct . . . means . . . [f]ailing to create
an adequate patient record that includes the patient’s health history, clinical
impression, examination findings, diagnostic results, x-ray films if taken, x-
ray reports, treatment plan, notes for each patient visit, and a billing record.
The notes for each patient visit shall include the patient’s name, the date of
service, the chiropractic physician’s findings, all services rendered, and the
name or initials of the chiropractic physician who provided services to the
patient.”

3      In a medical malpractice action, a plaintiff must prove negligence by
showing that the health care provider fell below the standard of care and
that the deviation from the standard of care was a proximate cause of the
plaintiff’s injury. See Arizona Revised Statutes (“A.R.S.”) section 12-563



                                       3
                         ROCHON v. GRANT et al.
                           Decision of the Court

¶7            Dr. Grant also moved for summary judgment on Rochon’s
claim for punitive damages. After hearing oral argument, the trial court
denied the motion, concluding that “a reasonable juror could find by clear
and convincing evidence that Dr. Grant acted with conscious disregard of
a substantial risk of significant harm to Ms. Rochon by failing to document
the existence of the titanium rods in his written records, thereby risking her
health and safety.” The court further noted there was “some evidence that
Dr. Grant attempted to cover-up the existence of insufficient records by
modifying them after the fact.”

¶8           In February 2014, two months after the parties’ November 1,
2013 disclosure deadline, Rochon moved to add an additional trial witness.
In a March 20, 2014 minute entry, the court denied the motion without
elaboration.

¶9              During a pretrial conference in April 2015, the court granted
Dr. Grant’s motion in limine to preclude Rochon from presenting
information about Dr. Grant’s finances until Rochon could establish a prima
facie case for punitive damages.

¶10          The six-day trial commenced in May 2015, and after Rochon
presented her case-in-chief, Dr. Grant moved for judgment as a matter of
law on Rochon’s medical malpractice claim and, in the alternative, on
Rochon’s claims for medical expenses and punitive damages. The court
denied the motion as to Rochon’s medical malpractice and medical
expenses claims, but granted the motion as to punitive damages, stating
Rochon had “not met [her] burden on the issue of punitive damages.”

¶11           At the conclusion of trial, the jury found in Rochon’s favor
and awarded her $35,000 in damages. Dr. Grant then filed a statement of
costs and sanctions pursuant to Rule 68, asserting that he had made an offer
of judgment to Rochon for $40,000, which Rochon did not accept. Pursuant
to Rule 68(g)(1)(A), the court reduced Rochon’s $35,000 award by
$29,682.88, and entered a final judgment against Dr. Grant in the amount of
$5,317.12.




(2016); Ryan v. San Francisco Peaks Trucking Co., 228 Ariz. 42, 48-49, ¶ 23, 262
P.3d 863, 869-70 (App. 2011).




                                       4
                         ROCHON v. GRANT et al.
                           Decision of the Court

¶12           Rochon timely appealed, and we have jurisdiction pursuant
to A.R.S § 12-2101(A)(1) (2016).4

                                 ANALYSIS

       I.     Punitive Damages

¶13          Rochon argues the trial court erred in granting Dr. Grant’s
motion for judgment as a matter of law on her claim for punitive damages.
We review de novo the court’s grant of judgment as a matter of law, and
view the evidence in the light most favorable to the nonmoving party.
Hudgins v. Sw. Airlines, Co., 221 Ariz. 472, 486, ¶ 37, 212 P.3d 810, 824 (App.
2009).

¶14           Punitive damages may be available where the plaintiff
establishes that the defendant’s “wrongful conduct was guided by evil
motives.” Rawlings v. Apodaca, 151 Ariz. 149, 162, 726 P.2d 565, 578 (1986).
“[T]o obtain punitive damages, [the] plaintiff must prove that [the]
defendant’s evil hand was guided by an evil mind.” Id. The evil mind that
will justify the imposition of punitive damages may be found where,
“although not intending to cause injury, [the] defendant consciously
pursued a course of conduct knowing that it created a substantial risk of
significant harm to others.” Id. “[A] jury may infer evil mind if [the]
defendant deliberately continued his actions despite the inevitable or
highly probable harm that would follow.” Gurule v. Ill. Mut. Life & Cas. Co.,
152 Ariz. 600, 602, 734 P.2d 85, 87 (1987).

¶15            Because punitive damages should only be awarded in the
most egregious cases, Hudgins, 221 Ariz. at 486, ¶ 38, 212 P.3d at 824, the
plaintiff making such claims must satisfy a higher burden of proof.
Thompson v. Better-Bilt Aluminum Prods. Co., Inc., 171 Ariz. 550, 557, 832 P.2d
203, 210 (1992). An award of punitive damages therefore requires clear and
convincing evidence of the requisite evil mind. Linthicum v. Nationwide Life
Ins. Co., 150 Ariz. 326, 331-32, 723 P.2d 675, 680-81 (1986); Thompson, 171
Ariz. at 557, 832 P.2d at 210.

¶16            Rochon argues that punitive damages are warranted here
because Dr. Grant knowingly exposed her and his other patients to an
unjustifiable risk of injury by failing to keep accurate patient records, and
the injury risked by this misconduct occurred when, in disregard for the
presence of the rods in her spine, Dr. Grant negligently adjusted over the

4      Absent material revisions since the relevant dates, we cite the current
version of all statutes.


                                      5
                        ROCHON v. GRANT et al.
                          Decision of the Court

rods. To support her argument, Rochon relies on Newman v. Select Specialty
Hospital-Arizona, Inc., 239 Ariz. 558, 374 P.3d 433 (App. 2016), in which this
court reversed the superior court’s grant of judgment as a matter of law on
the plaintiff’s punitive damages claim. In Newman, the plaintiff sought
punitive damages against the defendant hospital based on the hospital
employees’ failure to follow the physician’s orders and established protocol
to properly care for the plaintiff’s pressure sore. Newman, 239 Ariz. at 562,
374 P.3d at 437. The plaintiff presented evidence at trial that the hospital
employees “were aware of [the plaintiff’s] pressure sore and of the required
courses of treatment for that wound,” and that, because of the hospital’s
failure to timely assess and treat it, the pressure sore became much worse.
Id. at 562-63, 374 P.3d at 437-38. This court concluded that because a
reasonable jury could have found by clear and convincing evidence “that
the hospital consciously disregarded a known risk of substantial harm in
direct violation of [the plaintiff’s] rights,” the superior court erred in
granting judgment as a matter of law on the issue of punitive damages. Id.
(citing Linthicum, 150 Ariz. at 330, 723 P.2d at 675).

¶17           On this record, we conclude that Newman is applicable here.
Rochon presented evidence at trial that Dr. Grant knew or should have
known of the titanium rods in her spine, and knew that performing certain
types of chiropractic adjustments over her spine in that area would violate
the standard of care and could cause injury. The jury heard expert
testimony that such negligent conduct by Dr. Grant did, in fact, injure the
patient.

¶18           Rochon contended that the reason Dr. Grant performed this
negligent adjustment was due, in part, to his failure to properly document
and/or reiterate in each chart note the presence of the spinal rods. We have
carefully reviewed Dr. Grant’s chart. At best, Dr. Grant’s patient record-
keeping system appears to be inaccurate, confusing, and potentially
dangerous. At worst, it increases the risk that a busy chiropractor will
simply rely on a computer-generated descriptor of the patient’s past and
current “objective” findings and treatment that was apparently
automatically repeated for each patient visit, notwithstanding the nature
and findings of any actual examination of the patient for any given office
visit.5




5      Whether the automatic inclusion of this “stock” documentation was
designed to create a financial benefit is not an issue on appeal, but may be
an issue on remand.


                                      6
                         ROCHON v. GRANT et al.
                           Decision of the Court

¶19            Accordingly, when Dr. Grant treated Rochon, his computer
screen in the examination/treatment area displayed inaccurate information
about her medical history and the nature, location, and results of prior
manipulations/treatments he had performed, all of which increased the
risk that the patient could be injured. Additionally, Dr. Grant never
attempted to review or correct Rochon’s patient chart during the four years
that he treated her. Finally, Rochon also presented evidence that, at a
minimum, created an inference that Dr. Grant attempted to conceal the fact
that his records were inaccurate and that his record-keeping system was
designed, at least in part, to prioritize profits at the risk of his patients’
safety. See Hawkins v. Allstate Ins. Co., 152 Ariz. 490, 497, 733 P.2d 1073, 1080
(1987) (stating a defendant’s concealment of his misconduct is relevant to
the determination of punitive damages); Nardelli v. Metro. Grp. Prop. & Cas.
Ins. Co., 230 Ariz. 592, 605, ¶ 62, 277 P.3d 789, 802 (App. 2012) (concluding
punitive damages were warranted against a company whose actions were
“driven by financial self interest”).

¶20           Dr. Grant asserts that Newman is at least inapposite—if not
wrongly decided—because it does not address the requirement that, to
obtain punitive damages, the plaintiff’s evidence used to suggest the
defendant’s state of mind must have a causal connection to the injury.
Instead, Dr. Grant relies on Saucedo ex rel. Sinaloa v. Salvation Army, 200 Ariz.
179, 24 P.3d 1274 (App. 2001) to support his argument that punitive
damages are not warranted in this case because Rochon could not establish
that Dr. Grant’s failure to keep accurate records was the cause of her injury.

¶21             In Saucedo, the defendant driver struck and killed a pedestrian
and did not stop at the scene of the accident to render assistance. Saucedo,
200 Ariz. at 180, 24 P.3d at 1275. The court concluded that the defendant’s
conduct in “fail[ing] to remain at the scene was not a contributing factor or
the proximate cause of [the pedestrian’s] death” because the pedestrian
“died on impact or within seconds thereafter.” Id. at 183, 24 P.3d at 1278.
Thus, because the “outrageous and egregious conduct” of fleeing the scene
did not occur “in tandem with the conduct giving rise to the injury,” the
plaintiff’s claim for punitive damages failed “for want of proximate cause.”6


6      Dr. Grant also cites Forquer v. Pinal Cty., 22 Ariz. App. 266, 526 P.2d
1064 (App. 1974). Like Saucedo, Forquer is distinguishable from the instant
case because it relates to the admissibility of the tortfeasor’s conduct after
the event-causing injury. See Forquer, 22 Ariz. App. at 270, 526 P.2d at 1068
(stating that after-occurring conduct not related to the state of mind of the



                                       7
                          ROCHON v. GRANT et al.
                            Decision of the Court

Id. at 182-83, 24 P.3d at 1277-78. Here, however, Rochon presented evidence
that Dr. Grant purposefully kept inaccurate patient records and relied on
those inaccurate records before proceeding with the chiropractic
adjustment that caused her injury. Therefore, unlike Saucedo, where the
driver’s outrageous conduct occurred after the injury and caused no further
harm to the pedestrian, here, Dr. Grant’s inaccurate record-keeping and his
reliance on those records occurred before the negligent adjustment that
caused Rochon’s injury. On this record, a reasonable juror could conclude
that Dr. Grant’s failure to keep accurate records occurred “in tandem with”
the adjustment that caused Rochon’s injury. See id. at 182, 24 P.3d at 1277.

¶22            Because we conclude these facts could give rise to reasonable
inferences that Dr. Grant acted with an evil mind, we reverse the trial
court’s grant of judgment as a matter of law on Rochon’s claim for punitive
damages, and remand for a new trial on that issue. See Thompson, 171 Ariz.
at 555, 832 P.2d at 208; see also Borland v. Safeco Ins. Co. of Am., 147 Ariz. 195,
200, 709 P.2d 552, 557 (App. 1985) (“If there is a reasonable view of the
evidence that will support punitive damages the question should be left to
the jury.”). 7

       II.     Evidentiary Rulings on Admissibility of Pattern of Practice,
               Financial Information, and Treatise

¶23           Rochon also challenges several of the trial court’s evidentiary
rulings as they relate to her claim for punitive damages. We review a trial
court’s rulings on the admission of evidence and motions in limine for an
abuse of discretion. State v. Leteve, 237 Ariz. 516, 523, ¶ 18, 354 P.3d 393, 400
(2015); Warner v. Sw. Desert Images, LLC, 218 Ariz. 121, 133, ¶ 33, 180 P.3d
986, 998 (App. 2008). We review questions of law related to the
admissibility of evidence de novo. Leteve, 237 Ariz. at 523, ¶ 18, 354 P.3d at
400.

¶24         First, Rochon argues the trial court erred in precluding her
from presenting evidence and arguing that Dr. Grant’s record-keeping


tortfeasor at the time of the event itself is inadmissible on the issue of
punitive damages).

7      In her opening brief, Rochon also challenges the trial court’s grant of
partial summary judgment against her on her malpractice claim based on
Dr. Grant’s documentation practices. However, Rochon indicates we need
not address this argument if we remand the issue of punitive damages for
a new trial. Accordingly, we do not address her argument in that regard.


                                        8
                         ROCHON v. GRANT et al.
                           Decision of the Court

practices not only fell below the standard of care, but also demonstrated a
pattern of reckless behavior. In light of our reversal of the trial court’s
judgment as a matter of law on Rochon’s punitive damages claim, we
conclude Dr. Grant’s documentation practices are relevant to that
determination. At a minimum, these practices provide a possible
explanation as to how and why Rochon’s injury occurred. Accordingly, we
reverse the trial court’s ruling precluding Rochon from presenting evidence
demonstrating a pattern of practice with regard to Dr. Grant’s chiropractic
record-keeping practices.

¶25             Next, Rochon asserts the trial court abused its discretion in
excluding evidence of Dr. Grant’s financial information. Because we
conclude Rochon established “the requisite prima facie showing that
sufficient evidence exists to submit the question of punitive damages to the
trier of fact,” Arpaio v. Figueroa, 229 Ariz. 444, 448, ¶ 12, 276 P.3d 513, 517
(App. 2012) we reverse the trial court’s ruling excluding evidence of Dr.
Grant’s financial information. See Larriva v. Montiel, 143 Ariz. 23, 24, 691
P.2d 735, 736 (App. 1984) (“It is settled in Arizona that the wealth of a
defendant is relevant and subject to discovery in a proper punitive damages
case.”); Hawkins, 152 Ariz. at 497, 733 P.2d at 1080 (stating a defendant’s
financial position is relevant to the determination of punitive damages).

¶26           Rochon also argues the trial court abused its discretion in
excluding evidence of a treatise authored by Dr. Sid Williams, the former
president of Life University, entitled “The Meadowlands Experience: From
the Ordinary to the Extraordinary in Chiropractic.” Rochon contends the
teachings in the treatise are relevant to her claim for punitive damages
because “they show that [Dr. Grant] was specifically taught to ignore both
business and medical ethics in order to maximize his profit.”8 Dr. Grant


8      Among the treatise’s passages Rochon relies on are the following:

              What we do is organize what you know in Chiropractic
       into action programs that help you deliver your service to
       people. We organize it toward a definite, major purpose of
       seeing 500 visits per week. Now that 500 visits per week
       should gross you anywhere from $500,000 to $750,000 . . .
       write that down, that’s a lot of bread, isn’t it? That’s a very
       small amount. . . .




                                      9
                         ROCHON v. GRANT et al.
                           Decision of the Court

argues the trial court properly excluded the treatise for lack of foundation
because Rochon’s counsel could not establish Dr. Grant was familiar with
the treatise.9 But Dr. Grant acknowledged that he was familiar with the
author, who was president of Life University at the time Dr. Grant attended.
Putting aside the credibility issue concerning Dr. Grant’s denial that he read
or even knew about the book, the issue here is not whether the text is
admissible because it is “a reliable authority” under Arizona Rule of
Evidence 803(18)(B), but rather whether it is admissible to impeach Dr.
Grant concerning his denial that his office practice and record-keeping
system is designed to maximize personal profit over patient safety.
Accordingly, we conclude the treatise is relevant to Rochon’s claim for
punitive damages, and it is for the jury to determine the proper weight to
be given to it.10 See State ex rel. Ordway v. Buchanan, 154 Ariz. 159, 164, 741


              . . . We don’t graduate professionals out here to dignify
       the world. We graduate you out to make money, right? Is
       that what you’re in here for or are you just going to be a nice
       professional and go home and live in a silk cocoon all your
       life?

9     The following exchange took place between Rochon’s counsel and
Dr. Grant at trial:

       Counsel:      And Dr. Sid Williams was the founder and
                     president of [Life University], correct?
       Dr. Grant:    Yes, he’s now passed, rest in peace.
       Counsel:      And he was the president of the university
                     while you attended, correct?
       Dr. Grant:    Yes.
       Counsel:      And are you familiar with a book that Dr. Sid
                     Williams has written—
       Dr. Grant:    Nope.
       Counsel:      —about the Meadowlands experience?
       Dr. Grant:    I don’t read books.
       Counsel:      You don’t read books?
       Dr. Grant:    No. Just textbooks in school.

10      Dr. Grant also argues Rochon waived her objection to the trial court’s
ruling on admissibility of the treatise because she did not raise the objection
at trial. However, because Rochon responded to Dr. Grant’s motion in
limine seeking to preclude the treatise, we conclude she has preserved the



                                      10
                         ROCHON v. GRANT et al.
                           Decision of the Court

P.2d 292, 297 (1987) (stating the jury determines the weight to be given to
evidence).

       III.   Evidentiary Ruling on Late-Disclosed Witness

¶27            Finally, Rochon contends the trial court abused its discretion
in excluding her witness, a former chiropractor, who planned to testify
about his experience at Life University. “A trial court has broad discretion
in ruling on disclosure and discovery matters, and this court will not
disturb that ruling absent an abuse of discretion.” Marquez v. Ortega, 231
Ariz. 437, 441, ¶ 14, 296 P.3d 100, 104 (App. 2013) (citing Link v. Pima Cty.,
193 Ariz. 336, 338, ¶ 3, 972 P.2d 669, 671 (App. 1998)).

¶28            As a result of our remand, this issue is presumably moot. We
assume that, in addition to setting a discovery schedule and a new trial
date, the court on remand will also establish a new deadline for the
disclosure of trial witnesses. As such, we further presume that counsel will
comply with whatever schedule and deadlines the trial court sets.

                               CONCLUSION

¶29           The trial court’s grant of judgment as a matter of law on
Rochon’s claim for punitive damages is reversed, and the case is remanded
for further proceedings consistent with this decision.




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


issue on appeal. See State v. Lichon, 163 Ariz. 186, 189, 786 P.2d 1037, 1040
(App. 1989) (stating a motion in limine will preserve an issue on appeal if
“the objectionable matter is brought to the attention of the trial court in a
manner sufficient to advise the trial court that the error was not waived.”)
(internal quotations and citation omitted); State v. Burton, 144 Ariz. 248, 250,
697 P.2d 331, 333 (1985) (“[W]here a motion in limine is made and ruled
upon, the objection raised in that motion is preserved for appeal, despite
the absence of a specific objection at trial.”).



                                        11
