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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


              ELIZABETH MONJE, et al., Plaintiffs/Appellants,

                                         v.

            JOHN J. COREY MD PC, et al., Defendants/Appellees.

                              No. 1 CA-CV 17-0513
                                FILED 8-23-2018


            Appeal from the Superior Court in Maricopa County
                           No. CV2013-014102
                  The Honorable Hugh E. Hegyi, Judge

                                   AFFIRMED


                                    COUNSEL

May, Potenza, Baran & Gillespie, P.C., Phoenix
By Christopher B. Ingle, Michelle Mozdzen
Counsel for Plaintiffs/Appellants

Jennings, Strouss & Salmon, P.L.C., Phoenix
By John J. Egbert, Jay A. Fradkin, Anne E. McClellan
Counsel for Defendants/Appellees



                        MEMORANDUM DECISION

Judge James P. Beene delivered the decision of the Court, in which
Presiding Judge Maria Elena Cruz and Judge Jennifer B. Campbell joined.
                     MONJE, et al. v. COREY MD, et al.
                         Decision of the Court

B E E N E, Judge:

¶1            Elizabeth and Mark Monje, individually and on behalf of their
three children (collectively, “Plaintiffs”), appeal the superior court’s grant
of summary judgment in favor of Dr. John J. Corey and his professional
corporation (collectively, “Defendants”) in this medical malpractice action.
For the following reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2            In August 2012, Dr. Corey, a board-certified plastic surgeon,
performed breast augmentation surgery on Elizabeth Monje. As a result of
the surgery, Mrs. Monje suffered a brachial plexus injury.1 Since then, Mrs.
Monje has suffered “extreme pain in her right arm as well as permanently
restricted range of motion,” and she is unable to perform certain daily
activities.

¶3             Plaintiffs filed a complaint in superior court against
Defendants for medical malpractice. They simultaneously certified that
expert testimony was necessary to prove standard of care and causation.
See Ariz. Rev. Stat. (“A.R.S.”) § 12-2603(A) (requiring a party to file a written
statement certifying “whether or not expert opinion testimony is necessary
to prove the health care professional’s standard of care or liability”).
Plaintiffs retained Dr. George Commons as their standard of care and
causation expert. Dr. Commons prepared a preliminary expert affidavit
pursuant to A.R.S. § 12-2603(B). Dr. Commons opined that “Dr. Corey
probably or more likely than not was negligent in performing the
augmentation procedure and this negligence probably or more likely than
not caused the injury to Mrs. Monje’s brachial plexus nerves.”

¶4            Thereafter, Defendants deposed Dr. Commons. Based on his
testimony, Defendants moved for summary judgment arguing Plaintiffs
had failed to produce expert testimony “proving Dr. Corey was negligent
and a proximate cause of Plaintiffs’ alleged damages.” The superior court
granted Defendants’ motion concluding, as a matter of law, that “a
reasonable jury could not find breach or causation on this record.”



1      “The brachial plexus is the network of nerves that sends signals from
your spinal cord to your shoulder, arm and hand.” Brachial Plexus Injury:
Overview, MAYO CLINIC.ORG,
https://www.mayoclinic.org/diseases-conditions/brachial-plexus-
injury/symptoms-causes/syc-20350235 (last visited August 6, 2018).


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                    MONJE, et al. v. COREY MD, et al.
                        Decision of the Court

¶5            Plaintiffs moved for reconsideration and to supplement their
response to Defendants’ motion for summary judgment to include a second
affidavit by Dr. Commons. The superior court denied both motions and
entered judgment in favor of Defendants. Plaintiffs timely appealed, and
we have jurisdiction pursuant to A.R.S. § 12-2101(A)(1).

                               DISCUSSION

I.     Denial of Motion to Supplement Record is affirmed.

¶6             Plaintiffs argue the superior court abused its discretion by
denying their motion to supplement the record with Dr. Commons’ second
affidavit. We review the court’s ruling on a motion to supplement for an
abuse of discretion. See Larsen v. Decker, 196 Ariz. 239, 241, ¶ 6 (App. 2000)
(this court reviews evidentiary rulings for a clear abuse of discretion).

¶7             Arizona Rule of Civil Procedure (“Rule”) 56 governs
summary judgment and provides for a motion, a response, and a reply. See
Ariz. R. Civ. P. 56(a), (c)(2). Parties may file affidavits along with their
accompanying statements of facts. See Ariz. R. Civ. P. 56(c)(5), (e). A party
opposing a motion for summary judgment must “file its response and any
supporting materials within 30 days after the motion is served.” Ariz. R. Civ.
P. 56(c)(2) (emphasis added).

¶8             In responding to Defendants’ motion for summary judgment,
Plaintiffs relied on Dr. Commons’ preliminary expert affidavit and his
deposition testimony. They did not request a continuance, pursuant to Rule
56(d), to obtain additional evidence. Then, seven weeks after the superior
court granted summary judgment in favor of Defendants, Plaintiffs moved
to supplement their response with Dr. Commons’ second affidavit. Their
attempt was untimely, and the court did not abuse its discretion by denying
their motion. See State v. Ring, 200 Ariz. 267, 277 n.4, ¶ 33 (2001), rev’d on
other grounds by Ring v. Arizona, 536 U.S. 584 (2002) (“Labeling untimely
motions as supplemental does not enable a party to avoid the time
restrictions imposed by procedural rules.”).

II.    Summary Judgment in favor of Defendants was properly granted.

¶9            Plaintiffs also argue the superior court erred by granting
summary judgment. They contend that the court failed to view the record
in the light most favorable to them and failed to resolve inferences in their
favor. This court reviews the grant of summary judgment de novo. See
Duncan v. Scottsdale Med. Imaging, Ltd., 205 Ariz. 306, 308, ¶ 2 (2003). In
doing so, we “view the evidence and all reasonable inferences in the light


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                          Decision of the Court

most favorable to the party against whom summary judgment was
entered.” Id. Summary judgment should be granted “if the facts produced
in support of the claim or defense have so little probative value, given the
quantum of evidence required, that reasonable people could not agree with
the conclusion advanced by the proponent of the claim or defense.” Orme
School v. Reeves, 166 Ariz. 301, 309 (1990); see also Ariz. R. Civ. P. 56(a)
(authorizing the entry of summary judgment when “there is no genuine
dispute as to any material fact and the moving party is entitled to judgment
as a matter of law”).

¶10             To prove their medical malpractice claim, Plaintiffs must
establish: 1) Dr. Corey breached the applicable standard of care; and 2) his
breach proximately caused Mrs. Monje’s injury. See A.R.S. § 12–563.
Without evidence of breach and causation, Plaintiffs’ claims cannot
withstand summary judgment. See Gurr v. Willcutt, 146 Ariz. 575, 581 (App.
1985) (a plaintiff must prove both elements set forth in § 12-563 to withstand
summary judgment). As a general rule, a physician or surgeon’s negligence
“must be established by expert medical testimony, unless the negligence is
so grossly apparent that a layman would have no difficulty in recognizing
it.” Falcher v. St. Luke’s Hosp. Med. Ctr., 19 Ariz. App. 247, 252 (1973) (citation
omitted). Plaintiffs retained Dr. Commons to provide expert medical
testimony of breach and causation in this case.

       A.      Plaintiffs produced insufficient evidence that Defendants
               breached the applicable standard of care.

¶11            In a medical malpractice case, standard of care is defined as
“that degree of care, skill and learning expected of a reasonable, prudent
health care provider in the profession or class to which he belongs within
the state acting in the same or similar circumstances.” A.R.S. § 12-563(1).
To withstand summary judgment, Plaintiffs had to produce evidence that
Dr. Corey had breached the accepted standard of care. See A.R.S. § 12-563;
St. George v. Plimpton, 241 Ariz. 163, 166, ¶ 13 (App. 2016) (affirming
summary judgment where plaintiffs failed to present evidence that
defendant breached the standard of care). Plaintiffs did not produce such
evidence here.

¶12          At his deposition, Dr. Commons testified that, according to
Dr. Corey’s own report, Dr. Corey had performed the surgery within the
relevant standard of care:

       Defense counsel: Would it be fair to assume that in review of
       the operative report, it appears that Dr. Corey’s surgical



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                    MONJE, et al. v. COREY MD, et al.
                        Decision of the Court

       technique was appropriate and within the standard of care of
       a[] transaxillary augmentation mammoplasty?

       Dr. Commons: It does.

       Defense counsel: And then you read Dr. Corey’s deposition
       testimony about how he did the procedure.

       Dr. Commons: I did.

       Defense counsel: And do you agree his description of what
       he did was within the standard of care?

       Dr. Commons: I do.

Dr. Commons’ testimony, that Dr. Corey’s operative report described the
procedure as conducted within the prescribed standard of care, did not
introduce any additional evidence to contradict Dr. Corey’s account as
stated in his report. Dr. Commons further testified that he was “sure” Dr.
Corey was exercising due care and conceded that nerve injury can occur
during breast augmentation surgery even if the surgeon is complying with
the accepted standard of care. Although Dr. Commons testified that a
surgeon could breach the standard of care by failing to monitor surgical
staff, he also admitted there was no evidence that Mrs. Monje’s injuries
resulted from actions taken by other members of the surgical team.2 More
importantly, over the course of his deposition, Dr. Commons never
identified any standard-of-care violations committed by Dr. Corey.

¶13           If the party bearing the burden of proof “cannot respond to
the motion by showing that there is evidence creating a genuine issue of
fact on the element in question, then the motion for summary judgment
should be granted.” Orme Sch., 166 Ariz. at 310. In Orme School, the
supreme court further explained that

       [I]t would effectively abrogate the summary judgment rule to
       hold that the motion should be denied simply on the
       speculation that some slight doubt (and few cases have
       complete certainty), some scintilla of evidence, or some



2      Plaintiffs did not assert an independent claim for negligent
supervision against Dr. Corey. See St. George, 241 Ariz. at 166, ¶ 15 (a claim
for negligent supervision requires different elements of proof).



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                     MONJE, et al. v. COREY MD, et al.
                         Decision of the Court

       dispute over irrelevant or immaterial facts might blossom into
       a real controversy in the midst of trial.

Id. at 311. Here, summary judgment was warranted because Plaintiffs
failed to produce evidence from which a jury could conclude that Dr.
Corey’s conduct fell below the accepted standard of care.

       B.     Plaintiffs failed to raise genuine issue regarding causation.

¶14            In a medical malpractice lawsuit, the plaintiff must establish
a “causal connection between an act or omission and the ultimate injury
through expert medical testimony, unless the connection is readily
apparent to the trier of fact.” Barrett v. Harris, 207 Ariz. 374, 378, ¶ 12 (App.
2004). To oppose summary judgment, Plaintiffs had to produce evidence
that Dr. Corey’s negligence proximately caused Mrs. Monje’s injury. See
A.R.S. § 12-563(2); Pompeneo v. Verde Valley Guidance Clinic, Inc., 226 Ariz.
412, 415, ¶ 17 (App. 2011) (affirming summary judgment where the plaintiff
had “not raised a genuine issue of material fact regarding causation that
would allow the claim to be presented to a jury”).

¶15          Dr. Commons did not identify any specific act or omission by
Dr. Corey that caused Mrs. Monje’s injury:

       Defense counsel: So what you’re saying, Dr. Commons, is
       that you can’t say that Dr. Corey actually did anything
       inappropriate that led to the brachial plexus injury, and you
       can’t say whether there’s anything he could have done to
       prevent this within reason. What you are saying is in your
       opinion because something happened and it was an
       unfortunate outcome for the patient, you believe he was in
       charge of that.

       Dr. Commons: I think he was in charge of it.

       Defense counsel: Is that true? Is the rest of that true though?

       Dr. Commons: I think it’s true.

¶16           Dr. Commons opined that the positioning or manipulation of
Mrs. Monje’s arm during surgery caused her injuries, but he stated that
“narrowing it” to when it happened “and specifics is pretty tough.” He
offered no evidence that Dr. Corey positioned or manipulated her arm, and
he offered no evidence that other members of the surgical staff acted




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                   MONJE, et al. v. COREY MD, et al.
                       Decision of the Court

negligently in doing so. In short, Dr. Commons could not point to any
specific act or omission by Dr. Corey that caused Mrs. Monje’s injuries.

¶17          In the absence of expert testimony establishing a genuine
issue regarding causation, the superior court properly granted summary
judgment in favor of Defendants.

                             CONCLUSION

¶18          For the foregoing reasons, we conclude that Plaintiffs
provided insufficient evidence of breach and causation to withstand
Defendants’ motion for summary judgment. Accordingly, we affirm the
decision of the superior court. We award costs to Defendants upon
compliance with Arizona Rule of Civil Appellate Procedure 21.




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




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