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                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
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                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


    REINA IVON QUINTANA-SUAREZ, et al., Plaintiffs/Appellants,

                                        v.

            WALTER MARTIN CAZARES, Defendant/Appellee.

                             No. 1 CA-CV 19-0112
                               FILED 10-29-2019

           Appeal from the Superior Court in Maricopa County
                          No. CV2017-004510
                 The Honorable Bruce R. Cohen, Judge

                                  AFFIRMED


                                   COUNSEL

The Helms Law Firm PLC, Phoenix
By Michael G. Helms
Counsel for Plaintiffs/Appellants

Hill Hall & DeCiancio PLC, Phoenix
By Thomas C. Hall, Christopher Robbins
Counsel for Defendant/Appellee
                 QUINTANA-SUAREZ, et al. v. CAZARES
                        Decision of the Court



                        MEMORANDUM DECISION

Judge Maurice Portley1 delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge David D. Weinzweig joined.


P O R T L E Y, Judge:

¶1             Reina Quintana Suarez (“Quintana”), two of her children, and
her mother, Micaela Suarez Muniz (“Suarez”), appeal from the judgment
entered against them after a jury trial and the denial of their motion for new
trial. For the following reasons, we affirm.

           FACTUAL2 AND PROCEDURAL BACKGROUND

¶2             Quintana, her four children, and mother were stopped in an
SUV at a red traffic light when they were rear-ended by Walter Cazares’s
Honda Accord at low impact. No injuries were reported at the scene. The
children and Suarez told Quintana they were not hurt. Suarez, who was
sitting in the front passenger seat, testified that she did not hit any part of
her body on the SUV or immediately experience any pain or discomfort.
Moreover, Quintana told Cazares, as well as the police officers who
responded to the accident, that she was not injured.

¶3            A day or two later, Quintana, Suarez, and two of the children
began to experience back and neck pain. Quintana never took any over-
the-counter pain relievers or other medication for her pain. She and the
other family members subsequently went to Dr. Lance Gardner, a
chiropractor, for treatment. They received three months of chiropractic
adjustments and electrical stimulation. Suarez felt worse after the
chiropractic adjustments.



1      The Honorable Maurice Portley, 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      We review the facts in the light most favorable to upholding the
jury’s verdict. See Larsen v. Nissan Motor Corp. in U.S.A., 194 Ariz. 142, 144,
¶ 2 (App. 1998).



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                QUINTANA-SUAREZ, et al. v. CAZARES
                       Decision of the Court

¶4           Quintana, on behalf of herself, her children, and her mother,
sued Cazares for the September 2016 accident. The matter went to trial.
Cazares admitted liability and the trial focused on causation and damages.
The parties presented conflicting medical evidence at trial on whether
Quintana and other family members were injured by the accident.

¶5              Dr. Gardner testified that Quintana and Suarez were injured
in the accident. He diagnosed them with “class 1” back and shoulder
sprains and strains, and Suarez with post-concussion syndrome. He
testified that symptoms can develop and worsen shortly after an injury,
noting that Suarez complained of severe back and shoulder pain from the
first visit, and Quintana continued to report severe back and neck pain after
two weeks. Dr. Gardner observed severe muscle spasms in her back.

¶6             Dr. Gardner sent Quintana and Suarez to a nurse practitioner
to assess if either needed prescription medication. The records from the
nurse practitioner were admitted at trial and demonstrate that the women
reported different pain levels to Dr. Gardner and the nurse practitioner. For
example, on September 23, Quintana reported severe neck pain to Dr.
Gardner but, the next day, the nurse practitioner noted that Quintana had
no neck pain or tenderness, no spasms, and full range of motion. Then, on
September 26, Quintana reported to Dr. Gardner that she still had frequent
and severe neck pain. Similarly, Suarez did not report any neck pain, range
of motion issues, or muscle spasms to the nurse practitioner.

¶7           Dr. Gardner referred the women to Dr. Jeffrey Vinck, another
chiropractor, who tested for pain using a surface electro-myogram
(“EMG”). Dr. Vinck testified that both women had abnormal surface EMG
findings on September 23, suggesting both had back pain on the testing
date. He also performed range of motion tests on Quintana and reported
no impairment.

¶8            The jury heard from a medical doctor who questioned the
alleged injuries. Dr. Todd Levine, a neurologist specializing in EMGs,
testified that, since 2000, two major medical neurology groups have
determined that surface EMGs have “no value . . . in evaluating nerve
disease, muscle disease, [or] back pain.” He opined that Dr. Vinck’s
assessment that a surface EMG could conclusively show pain and back
injury was incorrect. He testified that in fact the consensus in the
neurological community—that surface EMGs have no utility in diagnosing
physical injury or pain—has not changed since 2000.




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                 QUINTANA-SUAREZ, et al. v. CAZARES
                        Decision of the Court

¶9             Dr. Levine also reviewed Dr. Gardner’s records of Quintana
and Suarez and found that they showed no abnormal findings. He pointed
out that despite Quintana’s complaints of severe pain and the surface EMG
on September 23, the records of the nurse practitioner’s exam on September
24 showed that Quintana had no neck pain complaint, no muscle spasms,
and full range of motion of her neck. Dr. Levine recognized that pain and
numbness are subjective complaints that physicians should take seriously,
but testified that the surface EMGs were medically unnecessary. He also
explained that based on their symptoms, he would have suggested for both
women up to six weeks of “conservative treatment” consisting of rest and
anti-inflammatory medication rather than chiropractic or other
interventional treatment.

¶10            Finally, Joseph Manning, an accident reconstructionist and
biomechanics specialist, testified about his investigation of the two vehicles.
Specifically, based on his analysis that Cazares’s sedan struck Quintana’s
SUV with “just over 12,000 pounds” of force, he calculated that the
occupants of the SUV experienced 7,300 foot-pounds of force from the
collision and a sudden acceleration of 5.5 miles per hour. He concluded
that he did not “see any mechanisms for acute injury” from the low speed
collision.

¶11          After jury instructions and closing arguments, the jury
returned a defense verdict. After the entry of judgment, Quintana and the
others unsuccessfully moved for a new trial, arguing the verdict was
against the weight of the evidence and the court improperly admitted Dr.
Levine’s and Manning’s testimony. After the motion was denied, Quintana
and Suarez appealed.

                               DISCUSSION

¶12          Quintana and the family members argue the jury’s verdict is
contrary to the weight of the evidence and Dr. Levine’s and Manning’s
testimony was inadmissible. As a result, they suggest we reverse the verdict
and send the case for a new trial.

¶13            On appeal, we defer to the jury’s factual findings and “will
not set aside the verdict unless no evidence supports it.” State v. Fischer, 242
Ariz. 44, 49, ¶ 15 (2017). Evidence, even contradictory evidence, is
substantial if it allows a reasonable person to reach the jury’s decision.
Castro v. Ballesteros-Suarez, 222 Ariz. 48, 51–52, ¶ 11 (App. 2009). And we
will affirm the court’s evidentiary rulings admitting evidence absent a clear




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                QUINTANA-SUAREZ, et al. v. CAZARES
                       Decision of the Court

abuse of discretion or legal error and resulting prejudice. Yauch v. S. Pac.
Transp. Co., 198 Ariz. 394, 399, ¶ 10 (App. 2000).

I.    The Jury Verdict

¶14            Generally, in an automobile accident case the plaintiffs must
prove (1) a duty requiring the defendant to conform to a certain standard
of care; (2) the defendant’s breach of that standard of care; (3) a causal
connection between the defendant's conduct and the injury; and (4) actual
damages. Gipson v. Kasey, 214 Ariz. 141, 143, ¶ 9 (2007). Because Cazares
admitted liability, the issues at trial focused on the last two elements,
causation and damages. The jury heard from Quintana, Suarez, their
chiropractors, a neurologist and the accident reconstruction expert. The
jury had to determine the facts, evaluating and assessing the witnesses to
determine if Quintana and the others demonstrated causation and
damages. See Belliard v. Becker, 216 Ariz. 356, 359, ¶¶ 17–20 (App. 2007). In
reviewing the record on appeal, we defer to the jury’s assessments of
witness credibility, and do not reweigh conflicting evidence, see Kuhnke v.
Textron, Inc., 140 Ariz. 587, 591 (App. 1984), and will not substitute our
evaluation of the facts, Ballesteros-Suarez, 222 Ariz. at 52, ¶ 11.

¶15            The record included substantial evidence to support the jury’s
verdict. Quintana and Suarez testified about the accident, the pain they and
the children felt days later and their treatment. Additionally, Dr. Gardner
testified their injuries, described as back and neck soreness and pain, was
the result of the accident and about his treatment, as did Dr. Vinck. The
jury also heard that both women told Cazares, the police and others at the
scene that they did not believe anyone was injured. Additionally, the jury
heard from Manning, Dr. Levine, and had the medical records, which
included the notes from the nurse practitioner. The jury then, as properly
instructed, had to weigh the evidence and decide the facts.

¶16           The jury, in considering all the testimony and evidence,
determined that Quintana did not prove causation. They could have relied
on the testimony of Dr. Levine and Manning over that of Drs. Gardner and
Vinck, or given more credence to Quintana and Suarez’s initial reports at
the scene than their subsequent complaints. Regardless, the jury’s
prerogative is to assess credibility and resolve conflicting evidence. See
Kuhnke, 140 Ariz. at 591. Accordingly, based on our review of the record,
we cannot say that no evidence supports the jury’s verdicts. Thus, there is
no legal basis to set aside the verdict. Fischer, 242 Ariz. at 49, ¶ 15.




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                 QUINTANA-SUAREZ, et al. v. CAZARES
                        Decision of the Court

¶17            Moreover, trial courts have “significant latitude” in ruling on
new trial motions. See Soto v. Sacco, 242 Ariz. 474, 478, ¶ 8 (2017). The
superior court properly applied the Fischer standard when ruling on the
motion for new trial. As the court noted, the jury’s verdict is neither
arbitrary nor against the weight of the evidence. See Fischer, 242 Ariz. at 50,
¶ 21 (trial judge has broad discretion “to guard against arbitrary verdicts”).
Therefore, the court did not abuse its discretion by denying the motion for
new trial.

II.    Evidentiary Issues

¶18           Quintana and the other family members next argue that
Manning’s testimony lacks proper foundation, relying on cases from other
jurisdictions. Essentially, they argue Manning could not base his
calculations on photographs of the vehicles, repair estimates, and studies of
other vehicle collisions.

¶19            No per se rule prohibits biomechanical experts from testifying
as experts. See Lohmeier v. Hammer, 214 Ariz. 57, 64–65, ¶¶ 26–29 (App.
2006). Manning did not base his calculations solely on other published tests.
He also relied on post-accident photographs of both vehicles, the collision
report, a damage estimate for the SUV, and medical records. He testified
that relying on photographs and repair estimates is an accepted practice in
his field, and explained that he calculated the force of the collision using the
crush damage to the vehicles, another regular practice in his field. Given
that he relied on information from this collision and his use of accepted
practices in his field, any alleged deficiencies in his testimony go to the
weight of the testimony, not its admissibility. See Lohmeier, 214 Ariz. at 68–
69, ¶¶ 41–42. And it was for the jury to assess witness credibility and the
weight to be given to any testimony. The trial court did not abuse its
discretion in admitting Manning’s testimony. See Logerquist v. McVey, 196
Ariz. 470, 487, ¶ 51 (2000); Webb v. Omni Block, Inc., 216 Ariz. 349, 352, ¶ 6
(App. 2007).

¶20           Finally, Quintana and the other family members argue that
the court’s limiting order precluded Dr. Levine from testifying about
causation or the reasonableness of treatment. In the order, the court ruled
that Dr. Levine could not offer an opinion about causation or the
reasonableness of treatment, but could offer his opinion on whether the
treatment and tests were medically necessary.

¶21        Although they argue Dr. Levine improperly testified that Drs.
Gardner and Vinck’s treatment “was unnecessary and incorrect,” Dr.



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                QUINTANA-SUAREZ, et al. v. CAZARES
                       Decision of the Court

Levine’s testimony was limited to his opinion that the testing Dr. Vinck
performed was “medically unnecessary.” He contested Dr. Vinck’s use of
a surface EMG test to assess pain; he did not testify the injuries were
unrelated to the accident. Thus, Dr. Levine’s testimony was not precluded
by the motion in limine and the court did not err by overruling the objections
to the contrary.

                              CONCLUSION

¶22            For the foregoing reasons, we affirm the jury’s verdict and the
trial court’s denial of the motion for new trial. As the prevailing party,
Cazares is entitled to his costs on appeal upon compliance with Arizona
Rule of Civil Appellate Procedure 21.




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




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