Haven v. Taylor

• Decision Date: 10 July 2014
• Docket Number: No. 1 CA-CV 13-0337,1 CA-CV 13-0337
• Parties: ANDREA HAVEN, Plaintiff/Appellant, v. KEVIN R. TAYLOR and JANE DOE TAYLOR, husband and wife; TSI TOWER SERVICES, INC., an Arizona corporation, Defendants/Appellees.
• Court: Arizona Court of Appeals

ANDREA HAVEN, Plaintiff/Appellant, v. KEVIN R. TAYLOR and JANE DOE TAYLOR, husband and wife;TSI TOWER SERVICES, INC., an Arizona corporation, Defendants/Appellees.

No. 1 CA-CV 13-0337

ARIZONA COURT OF APPEALS DIVISION ONE

FILED: July 10, 2014

NOTICE: NOT FOR PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE

LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

Appeal from the Superior Court in Maricopa County

No. CV2007-022422

The Honorable J. Richard Gama, Judge

AFFIRMED

COUNSEL

Jack Levine, P.C., Phoenix

By Jack Levine

Skeens & Anderson, Glendale

By Norman E. Skeens

Co-Counsel for Plaintiff/Appellant

Schneider & Onofry, P.C., Phoenix

By Jon D. Schneider, Timothy B. O'Connor

Counsel for Defendants/Appellees

MEMORANDUM DECISION

Judge Maurice Portley delivered the decision of the Court, in which Presiding Judge Donn Kessler and Judge Patricia K. Norris joined.

PORTLEY, Judge:

¶1 Andrea Haven ("Haven") appeals the judgment after trial and the denial of a motion for new trial. She contends that the superior court erred by excluding testimony, medical bills, and medical records from evidence. She also argues that insufficient evidence supports the jury's verdict. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Kevin Taylor ("Taylor") was driving a truck for his employer, TSI Tower Services, Inc., and attempted to turn left onto a road encircling the Fiesta Mall parking lot. The truck struck Haven when she walked in front of it and knocked her down. She was taken to the hospital by an ambulance and her husband took her home.

¶3 Haven, who had preexisting and radiating back pain,¹ testified by deposition that the pain in her left leg was "very different" after the accident. She stopped working about three months after the accident, saw about seven doctors, and incurred some $80,000 in medical costs.

¶4 After the discovery cutoff date, Taylor filed a motion in limine to limit the testimony of Haven's primary care physician, Daniel Freberg, D.O., to his treatment of Haven because he had not been disclosed as an expert. The superior court granted the motion, but also ruled that the doctor could testify about the medical records from otherdoctors that he relied on and were in his file when last subpoenaed. The issue was unsuccessfully revisited during trial. As a result, Dr. Freberg did not testify that all of Haven's medical records after the accident were related to the accident and a number of Haven's medical bills and records were excluded.²

¶5 The trial proceeded and the jury found Taylor was negligent and awarded Haven $20,000 in damages, but found that she was eighty-five percent at fault. Because Haven had rejected an Arizona Rule of Civil Procedure ("Rule") 68 offer of judgment, Taylor was awarded $35,322.12. Haven filed an unsuccessful motion for new trial, and now appeals.

DISCUSSION

I. Expert Witness Disclosure and Testimony

¶6 Haven first argues that the superior court erred by precluding Dr. Freberg from testifying about the medical bills from her other doctors, who were specialists. Specifically, she argues that her doctor should have been allowed to testify about all of her medical treatment after the accident, and that the bills were necessary, reasonable, and related to the accident.

¶7 We review the ruling excluding the testimony and exhibits for an abuse of discretion and will affirm absent prejudice, Golanka v. General Motors Corp., 204 Ariz. 575, 580, ¶ 9, 65 P.3d 956, 961 (App. 2003), or the incorrect application of the law. Larsen v. Decker, 196 Ariz. 239, 241, ¶ 6, 995 P.2d 281, 283 (App. 2000). We view the excluded evidence in the light most favorable to its proponent. Larsen, 196 Ariz. at 241, ¶ 6, 995 P.2d at 283.

¶8 The superior court precluded Dr. Freberg from testifying that the bills and records from the other doctors were reasonable,necessary, and causally connected to the accident because Haven did not timely disclose that Dr. Freberg would be her expert or the substance of his opinions. When the issue resurfaced during trial, the court implicitly agreed with Taylor that he would be prejudiced if Dr. Freberg were allowed to testify about the reasonableness and necessity of all Haven's medical bills given that she had not disclosed that Dr. Freberg would be her expert or his expert opinions.

¶9 Rule 26.1 required Haven to disclose any expert witness she anticipated calling at trial, as well as "the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, [and] a summary of the grounds for each opinion." See Ariz. R. Civ. P. 26.1(a)(6). She had a continuing duty to disclose any additional information, but needed to get the court's permission if she wanted to use information that had not been disclosed sixty days before trial. See Ariz. R. Civ. P. 26.1(b)(2) ("A party seeking to use information which . . . [was] disclosed later than sixty (60) days before trial shall seek leave of court to extend the time for disclosure as provided in Rule 37(c)(2) or (c)(3)."). She could not use the late disclosed information unless the court found that the failure to timely disclose was harmless or otherwise found good cause to grant relief and allow use of the late disclosed evidence. See Ariz. R. Civ. P. 37(c); see also Allstate Ins. Co. v. O'Toole, 182 Ariz. 284, 287-88, 896 P.2d 254, 257-58 (1995).

¶10 Although Haven failed both to list Dr. Freberg as an expert witness and to disclose his opinions, she argues that she did not have to list him as an expert because he was her treating doctor. We disagree.

¶11 The substance of anticipated testimony governs whether a witness is a fact or expert witness. Sanchez v. Gama, 233 Ariz. 125, 131, ¶ 16, 310 P.3d 1, 7 (App. 2013) (citing Gomez v. Rivera Rodriguez, 344 F.3d 103, 113 (1st Cir. 2003)). Haven initially disclosed that Dr. Freberg was going to testify about his treatment of her; thus, at that point, he was a fact witness. See Sanchez, 233 Ariz. at 128, ¶ 8, 310 P.3d at 4 ("Fact-based testimony is derived from the five senses, i.e., what the treating doctor saw, heard, or felt, and typically is given in response to the 'who, what, when, where and why' questions." (quoting State ex rel. Montgomery v. Whitten, 228 Ariz. 17, 21, ¶ 15, 262 P.3d 238, 242 (App. 2011))); see also Duquette v. Superior Court, 161 Ariz. 269, 271 n.2, 778 P.2d 634, 636 n.2 (App. 1989) ("A plaintiff's treating physician is not an expert witness within the meaning of Rule 26(b)(4) . . . because the facts known and opinions held by a treating physician are not acquired or developed in anticipation of litigation or for trial." (internal quotation marks omitted)).

Haven, however, decided after the discovery cutoff that she wanted Dr. Freberg to review medical records and bills from the other doctors and opine that the treatment and bills were necessary, reasonable, and related to the accident.³ Thus, for these purposes, Dr. Freberg was an expert medical witness. See Sanchez, 233 Ariz. at 128, ¶ 9, 310 P.3d at 4 ("Testimony would constitute expert testimony . . . if the questions required 'a physician to review records or testimony of another health care provider or to opine regarding the standard of care or treatment given by another provider.'" (quoting State ex rel. Montgomery, 228 Ariz. at 21, ¶ 16, 262 P.3d at 242)).

¶12 The court advised the parties in its February 2012 minute entry that it would "not allow expert opinions to be admitted at the time of trial which have not been fairly disclosed [before] trial" and advised the parties "to prepare a comprehensive outline of each expert's separate opinions and the factual/substantive basis for each such opinion." (Emphasis omitted.) Haven never disclosed that Dr. Freberg would be called as a medical expert and did not disclose his expert report or any of his opinions on any update to the disclosure statement before trial. Taylor's lawyer was told a month before trial that Dr. Freberg would testify about the other doctors' treatment, records, and bills. Additionally, Haven never sought to expand the disclosure time period by filing a motion pursuant to Rule 37(c)(2). The court, as a result, did not abuse its discretion by limiting Dr. Freberg to testifying as a fact witness and precluding him from testifying that the medical records and bills from the other doctors were necessary, reasonable, and causally related to the accident. See Solimeno v. Yonan, 224 Ariz. 74, 78-81, ¶¶ 13-27, 227 P.3d 481, 485-88 (App. 2010) (noting that the court properly excluded an expert's testimony because his opinions and the facts relied on were not adequately disclosed); see also Link v. Pima Cnty., 193 Ariz. 336, 338-39, ¶¶ 1, 8, 972 P.2d 669, 671-72 (App. 1998) (noting that trial court did not abuse its broad discretion by precluding testimony because the factsunderlying an expert's opinion were not disclosed until after the disclosure deadline).

II. Medical Bills

¶13 Haven also contends the court abused its discretion by refusing to allow the medical bills into evidence. She argues that the bills, which had been disclosed, should have been admitted without expert medical testimony to demonstrate the necessity of the medical care and the reasonableness of the charges. She specifically claims that Larsen does not require foundational physician testimony when there is a clear causal connection between the injuries obtained and the resulting treatment because the bills create an inference of necessity and reasonableness. We disagree.

¶14 Although there may be a case where medical testimony is not required to show the link between an accident and medical treatment, this is not the case. Here, the jury had to decide whether Haven's injury from the accident had resolved, or whether the accident exacerbated her preexisting medical problems. The medical bills alone would not allow the jury to decide the issue without expert medical testimony because...