Perguson v. Tamis
| Citation | 937 P.2d 347,188 Ariz. 425 |
| Decision Date | 24 October 1996 |
| Docket Number | CA-CV,No. 2,2 |
| Parties | Jimmie D. PERGUSON and Kathleen Kenyon, surviving parents of Danette Perguson, deceased, Plaintiffs/Appellants, v. Robert H. TAMIS, M.D., and Beverlee Tamis, husband and wife; Robert H. Tamis, M.D., P.C., an Arizona corporation; Simat, Inc., an Arizona corporation, all d/b/a Abortion Services of Phoenix; Steve Nunn and Terry Nunn, husband and wife, Defendants/Appellees. 96-0156. |
| Court | Court of Appeals of Arizona |
In this medical malpractice case, plaintiffs, surviving parents of decedent Danette Perguson, appeal from the trial court's entry of summary judgment for defendants. Although this appeal presents close issues about expert witness disclosures and application of the "one expert per issue" presumption of Rule 1(D)(4), Uniform Rules of Practice for Medical Malpractice Cases (Medical Rules), 17B A.R.S., we reverse for the reasons set forth below.
While undergoing an elective abortion procedure by defendant Robert Tamis, M.D., in February 1992, decedent sustained a large pulmonary embolus and died several hours later. Her parents filed this action in February 1994, claiming that medical negligence by Dr. Tamis and his physician assistant (PA), defendant Steve Nunn, proximately caused her death. In their initial disclosure statement and interrogatory answers served in October 1994, plaintiffs listed as an expert witness MacArthur Hill, M.D., an obstetrician/ gynecologist (OB/Gyn) in Colorado, who purportedly would testify that both defendants fell below the standard of care and caused the death of Danette Perguson. The interrogatory answer listed several opinions Dr. Hill was expected to render against Dr. Tamis and Mr. Nunn.
At the comprehensive pretrial conference (CPC) in December 1994, the trial court set a firm jury trial date for September 18, 1995. The court also accepted the parties' joint CPC memorandum, which proposed simultaneous disclosure of all standard of care and causation expert witnesses in February 1995. In their first supplemental disclosure statement served in February, plaintiffs again listed Dr. Hill as an expert witness, indicating his testimony would include the following:
[T]hat Dr. Tamis knew or should have known that Danette presented a high risk and that his actions on the day the procedure were [sic ] done were the direct and proximate cause of her death. Dr. Hill will testify that the abortion performed by Dr. Tamis caused her death.
In that supplemental disclosure, plaintiffs also listed as an expert witness Thomas Murphy Goodwin, M.D., (OB/Gyn) of California, stating as follows:
Dr. Goodwin has reviewed the medical records and the deposition transcript of Robert Tamis. It is anticipated that he will testify as to the following areas:
1. Nature of the pregnancy of Danette Perguson.
2. Relationship of her condition of Pyruvate Kinase Deficiency to that pregnancy condition, as well as the high platelet count.
3. That such condition created a unique circumstance for Dr. Tamis' clinic and the management of said patient by Dr. Tamis and his staff.
4. That given her condition at the time she presented, she was not a candidate for abortion, that she should have been advised by Dr. Tamis of her condition.
5. That she should have been informed of the probable increased risks from the procedure, including death and that if she desired to continue the procedure, it should have been performed in a hospital where more support would have been available, intermittent compression of the lower extremities could have been employed to reduce the risk of thrombus formation; peri-operative use of aspirin or other agents to decrease platelet function should have been at least discussed.
Dr. Goodwin also is an expert in maternal-fetal medicine and can comment on the risks of continuing a pregnancy vis a vis termination. Dr. Goodwin opines that but for the abortion performed by Defendants, Danette Perguson would be alive today.
Dr. Goodwin will supplement his opinion as additional discovery is provided to him for review.
Defense counsel took Dr. Hill's deposition in Colorado on April 7, 1995, thoroughly questioning him on all liability issues without objection, limitation or clarification of his role by plaintiffs' counsel. Although Dr. Hill opined that both Dr. Tamis and Mr. Nunn were negligent, he was unable to say to a reasonable degree of medical probability that anything defendants did or did not do caused the decedent's death.
On May 25, defendants moved to exclude any expert testimony by Dr. Goodwin under Medical Rule 1(D)(4) on the grounds that "his anticipated testimony is both duplicative and cumulative in violation of the applicable medical malpractice rules." In response, plaintiffs asserted for the first time that only Dr. Goodwin, not Dr. Hill, would address all causation issues as to both defendants and standard of care issues as to Dr. Tamis. After oral argument, the trial court granted defendants' motion, finding that Dr. Goodwin's testimony "would be duplicative and/or cumulative" to Dr. Hill's. On the same day as that ruling, defendants immediately moved for summary judgment, contending that plaintiffs had failed to establish causation. Defendant Nunn further contended that Dr. Hill was not qualified to render opinions against him.
In response to defendants' summary judgment motions, plaintiffs acknowledged that Dr. Hill's testimony was inadequate on the causation issue, but contended that element could and would be established through Dr. Goodwin. Plaintiffs also urged the court to reconsider its prior ruling excluding Dr. Goodwin's testimony, asserting that it was not duplicative or cumulative to Dr. Hill's and attaching an affidavit Dr. Goodwin had executed on August 9, 1995. In his affidavit, Dr. Goodwin stated in some detail how defendants were negligent and caused decedent's death.
The trial court denied plaintiffs' motion to reconsider the exclusion of Dr. Goodwin's testimony and granted summary judgment for defendants, concluding that plaintiffs "lack[ed] sufficient expert testimony to demonstrate the element of causation and are unable to make a prima facie case" against any of the defendants. The court also found plaintiffs lacked sufficient expert testimony to establish the standard of care applicable to defendant Nunn. This appeal followed.
"The trial court has broad discretion in ruling on discovery and disclosure matters," and we will not disturb its ruling "absent an abuse of discretion." Soto v. Brinkerhoff, 183 Ariz. 333, 335, 903 P.2d 641, 643 (App.1995). "That discretion is abused if the record fails to establish substantial evidence to support the ruling," id., or if the trial court commits an error of law in reaching its discretionary conclusion. Grant v. Arizona Pub. Serv. Co., 133 Ariz. 434, 456, 652 P.2d 507, 529 (1982). Interpretation of the meaning and effect of a court rule is a question of law subject to de novo review. Cf. Jones v. Buchanan, 177 Ariz. 410, 868 P.2d 993 (App.1993).
It is undisputed that plaintiffs timely and properly disclosed Dr. Goodwin as an expert witness in accordance with the trial court's CPC order and the disclosure requirements of Rule 26.1, Ariz. R. Civ. P., 16 A.R.S. Thus, defendants acknowledge that their motion to exclude and the trial court's ruling thereon were "not based on inadequate or untimely disclosure," but rather only on Medical Rule 1(D)(4). That rule, as amended in 1992, requires the court and the parties at the time of the CPC to "[l]imit the number of experts." The rule further provides that "[e]ach party shall presumptively be entitled to only one standard-of-care expert[, and e]ach side shall presumptively be entitled to only one expert on any other issue." The rule, however, says nothing about the listing or disclosure of experts.
Defendants contend that Medical Rule 1(D)(4) "does not permit the listing of duplicative and/or cumulative experts," and "litigants are not allowed to disclose multiple experts and manipulate those experts' roles and opinions depending on who gives a better performance at their deposition." Defendants' position essentially is that once they had deposed Dr. Hill and obtained his unqualified opinions on all negligence and causation issues, in accordance with plaintiffs' prior disclosures and without plaintiffs' objection to or clarification of Dr. Hill's role, plaintiffs were then "locked in" to using only Dr. Hill. That conclusion, however, is neither mandated by Medical Rule 1(D)(4) nor logically reconcilable with this court's recent decision in Aguirre v. Forrest, 186 Ariz. 393, 923 P.2d 859 (App.1996).
In Aguirre, this court held that the trial court did not abuse its discretion or violate Medical Rule 1(D)(3) by authorizing plaintiffs, approximately three months before trial but after the expert disclosure deadline, to substitute their timely-disclosed causation expert for their standard of care expert, permitting the former to testify on both issues. As in this case, plaintiffs in Aguirre sought to make the "expert witness switch" after one of their disclosed experts had been deposed. Relying on our supreme court's reasoning and " 'common sense approach' " applied to the civil procedure disclosure rules, Allstate Insurance Co. v. O'Toole, 182 Ariz. 284, 287, 896 P.2d 254, 257 (1995), we concluded that Medical Rule 1(D)...
To continue reading
Request your trial
-
Minority Coalition v. Independent Com'n
...... See id. . ¶ 84 Moreover, the Commission may decide which experts it will call to testify at trial. See Perguson v. Tamis, 188 Ariz. 425, 430, 937 P.2d 347, 352 (App.1996) ("Once a party has agreed or is ordered to limit his or her timely-disclosed but ......
-
Tritschler v. Allstate Ins. Co.
......A trial court has broad discretion in ruling on discovery issues, and we will not disturb its ruling absent a clear abuse of discretion. Perguson v. Tamis, 188 Ariz. 425, 427, 937 P.2d 347, 349 (App.1996). A court abuses its discretion if it commits legal error in reaching a discretionary ......
-
Villa De Jardines Ass'n v. Bank, 2 CA–CV 2010–0177.
......Perguson v. Tamis, 188 Ariz. 425, 427, 937 P.2d 347, 349 (App.1996). VJA also contends the court erred in denying its motion for a new trial on the merits. ......
-
Fearnow v. RSCE
......Travelers Ins. Co., 195 Ariz. 363, 366, ¶ 13, 988 P.2d 148, 151 (App.1999) (interpretation of contract is subject to de novo review); Perguson v. Tamis, 188 Ariz. 425, 427, 937 P.2d 347, 349 (App.1996) (interpretation and meaning of court rule is question of law subject to de novo ......