Cervantes v. Rijlaarsdam

• Decision Date: 18 November 1997
• Docket Number: No. 2,CA-CV,2
• Citation: 190 Ariz. 396,949 P.2d 56
• Parties: 256 Ariz. Adv. Rep. 35 Eugenio S. CERVANTES and Maria Cervantes, husband and wife, Plaintiffs/Appellees, v. Jacob RIJLAARSDAM and Mary Rijlaarsdam, husband and wife, Defendants/Appellants. 97-0071.
• Court: Arizona Court of Appeals

Page 56

949 P.2d 56

256 Ariz. Adv. Rep. 35

Eugenio S. CERVANTES and Maria Cervantes, husband and wife, Plaintiffs/Appellees, v. Jacob RIJLAARSDAM and Mary Rijlaarsdam, husband and wife, Defendants/Appellants.

No. 2 CA-CV 97-0071.

Court of Appeals of Arizona Division 2, Department B.

Nov. 18, 1997.

Bess & Dysart, P.C. by Matthew D. Kleifield and Donald J. Sapala, Phoenix, for Defendants/Appellants.

McCarville, Cooper & Vasquez, P.C. by Garye L. Vasquez and Elizabeth Ryan Rueter, Casa Grande, for Plaintiffs/Appellees.

OPINION

PELANDER, Presiding Judge.

In this personal injury case, which arises from a two-vehicle accident in February 1990, defendants/appellants Rijlaarsdam appeal from the judgment entered on the jury's verdict for plaintiffs/appellees Cervantes and from the trial court's order denying defendants' motion for a new trial and/or remittitur. Although defendants raise a number of issues, the most significant one involves their unsuccessful attempts to introduce substantive, causation-related evidence through cross-examination of plaintiffs' experts. In order to clarify the applicable rules concerning examination of experts, we publish this opinion and affirm.

REFERENCES TO INSURANCE

Plaintiff Eugenio Cervantes's treating physician, Dr. Erickson, testified on direct examination that plaintiff did not undergo a CT scan until eighteen months after the accident because "he didn't have any insurance and couldn't afford to have the exam done." In discussing the decision to terminate physical therapy, Dr. Erickson later testified: "Certainly in situations in this day and age with insurance companies, if someone is not making steady progress, the insurance company is not particularly anxious to continue paying for therapy." At the conclusion of Dr. Erickson's direct examination, defendants moved for a mistrial based on the doctor's references to insurance. Defendants contend the trial court erred in denying the motion.

We review the ruling on a motion for mistrial for an abuse of discretion. E.L. Jones Constr. Co. v. Noland, 105 Ariz. 446, 466 P.2d 740 (1970). Defendants contend Dr. Erickson's references to insurance were irrelevant and unfairly prejudicial. Relying on Rule 411, Ariz. R. Evid., 17A A.R.S., and their proposed corollary to the collateral source rule, defendants assert that "insurance, whether it exists or not, should not be a consideration for the jury." Although we agree with that general proposition, the challenged testimony does not warrant reversal here.

First, Dr. Erickson's testimony was unresponsive and volunteered, not willfully elicited by plaintiff's counsel, as defendants suggest. ¹ Second, Evidence Rule 411 specifically applies to "insurance against liability" and does not mention health insurance; defendants' cited cases all involved a witness's reference to liability insurance, which is not the situation here. Third, even in that context, prejudice is not presumed from the improper admission of insurance-related evidence. See Muehlebach v. Mercer Mortuary & Chapel, 93 Ariz. 60, 378 P.2d 741 (1963). The mere mention of insurance is not automatically grounds for a mistrial. Id. Finally, we note that defendants did not move to strike the testimony. Cf. State v. Hudson, 87 Ariz. 162, 348 P.2d 928 (1960). That the jury's verdict was larger than defendants expected does not establish prejudice from Dr. Erickson's brief, uninvited remarks. Although his comments were unfortunate and arguably irrelevant, the trial court did not abuse its discretion in denying defendants' motion for mistrial.

In a related argument, defendants contend the trial court erred in denying them leave to cross-examine Dr. Erickson about "alternative funding mechanisms" or "other options that might be available to [plaintiff] to obtain health care treatment and to have such expenses paid." The trial court should have permitted such inquiry, defendants argue, to impeach and rebut Dr. Erickson's testimony. "A trial court's rulings on the exclusion or admission of evidence will not be disturbed on appeal unless a clear abuse of discretion appears and prejudice results." Selby v. Savard, 134 Ariz. 222, 227, 655 P.2d 342, 347 (1982). See also Ariz. R. Civ. P. 61, 16 A.R.S.; Ariz. R. Evid. 103(a).

We find neither an abuse of discretion nor prejudice here. Pursuant to the trial court's curative suggestion, defendants cross-examined plaintiff about alternative methods of obtaining medical treatment and payment options. In addition, as far as we can tell from the record, defendants made no offer of proof concerning the facts they wished to elicit from Dr. Erickson on cross-examination, or from any other witness, to rebut his testimony about insurance carriers or plaintiff's lack of health insurance. In the absence of any such offer, "the trial court's ruling to exclude the evidence was not error." Warfel v. Cheney, 157 Ariz. 424, 431, 758 P.2d 1326, 1333 (App.1988). Contrary to defendants' suggestion, we cannot tell from this record whether Dr. Erickson could or would have "confirm[ed] the availability of other treatment and funding sources."

EVIDENCE OF SUBSEQUENT INJURIES

Defendants next contend the trial court erred in unduly restricting their cross-examination of plaintiff's economist, John Buehler, and excluding deposition testimony of plaintiff's labor market consultant, Lisa Goldman. Those evidentiary rulings, defendants argue, effectively prevented them from "proving up" hypothetical questions they had asked Dr. Erickson about plaintiff's medical history. "It is well established in Arizona that the basis for an expert's opinion is fair game during cross-examination." State v. Hummert, 188 Ariz. 119, 126, 933 P.2d 1187, 1194 (1997). The right to cross-examine, however, is not unlimited. State v. Fleming, 117 Ariz. 122, 571 P.2d 268 (1977). "The control of cross-examination is left to the sound discretion of the trial court and will not be disturbed on appeal absent a showing from the record of an abuse of discretion." Johnson v. University Hospital, 148 Ariz. 37, 44, 712 P.2d 950, 957 (App.1985), disapproved in part on other grounds, Dunn v. Carruth, 162 Ariz. 478, 784 P.2d 684 (1989).

Based primarily on information contained in a February 1992 letter "To Whom It May Concern" from plaintiff's former employer (the letter), defendants challenged medical causation and attempted to establish that plaintiff had given Dr. Erickson an incomplete history. The letter stated that plaintiff had two unspecified injuries while working in California, in May and September 1991, both of which involved "some heavy lifting." Goldman mentioned that information in her report of June 1994, which specifically indicated she had reviewed the letter, and further stated: "While employed with [the former California employer], [plaintiff] exacerbated his back on two separate occasions during 1991 while doing some heavy lifting, requiring time off from work." Goldman also testified briefly about these matters in her deposition.

The CT scan in September 1991 revealed herniated discs at the L4-5 and L5-S1 levels in plaintiff's back. On direct examination at trial, Dr. Erickson testified that the February 1990 auto accident caused "a new structural injury," the herniations, and a permanent impairment. On cross-examination, he acknowledged that a patient's complete history is important and that plaintiff had not told him about having sustained any post-accident aggravations or re-injuries in May or September 1991. In response to defendants' hypothetical questions about those alleged injuries, Dr. Erickson indicated that if, in fact, he had not received all pertinent information about plaintiff's back condition, it "would have been nice" to have a complete and accurate medical history, and he would "need to digest [it] further." Dr. Erickson later testified that any post-accident "new injuries," if they had occurred, "would certainly be something to be considered."

1. Cross-Examination of Plaintiff

After Dr. Erickson testified, defendants attempted to introduce the information in the letter in several ways, none of which succeeded. First, defendants tried to use the letter in cross-examining plaintiff. Although defendants were permitted to question him about the letter, they were not allowed to read from it. When plaintiff denied knowledge of the letter and denied having injured his back in California in 1991, defendants impeached him with his deposition, in which he had admitted knowledge of the letter but claimed the former employer was mistaken. The trial court did not abuse its discretion in further restricting defendants' cross-examination of plaintiff through use of the letter, which clearly was inadmissible hearsay. ²

2. Cross-Examination of Buehler

Second, defendants claim they should have been allowed to cross-examine Buehler on the portion of Goldman's report and deposition relating to plaintiff's alleged 1991 injuries in California because he had considered them in his financial loss analysis. The trial court sustained plaintiff's objection to that proposed inquiry, and we find no error in that ruling.

Defendants unquestionably were interested in and sought to introduce only the information reported in the former employer's letter. That evidence clearly was hearsay, because it consisted of "statements not made by 'declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted,' Rule 801(c), Arizona Rules of Evidence, 17A A.R.S., and were inadmissible under the hearsay rule, Rule 802." Sharman v. Skaggs Companies, 124 Ariz. 165, 169, 602 P.2d 833, 837 (App.1979). When an expert bases an opinion on hearsay evidence, however, "the hearsay objection does not apply to the cross-examination of such expert witness." State v. Swafford, 21 Ariz.App. 474, 486, 520 P.2d 1151, 1163 (1974).

In computing and projecting plaintiff's earnings loss, Buehler assumed the February...