Popal v. Beck

• Decision Date: 15 February 2022
• Docket Number: 1 CA-CV 20-0346
• Parties: AHMADULLAH POPAL, et al., Plaintiffs/Appellants, v. MICHAEL D. BECK, M.D., et al., Defendants/Appellees.
• Court: Arizona Court of Appeals

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AHMADULLAH POPAL, et al., Plaintiffs/Appellants, v. MICHAEL D. BECK, M.D., et al., Defendants/Appellees.

No. 1 CA-CV 20-0346

Court of Appeals of Arizona, First Division

February 15, 2022

Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County No. CV2017-056031 The Honorable Cynthia J. Bailey, Judge (Retired).

The Nathanson Law Firm, Scottsdale

By Philip J. Nathanson

Counsel for Plaintiffs/Appellants

Holden & Armer, P.C., Phoenix

By Scott A. Holden, Nathan S. Ryan

Counsel for Defendant/Appellee Michael D. Beck, M.D. Presiding Judge D. Steven Williams delivered the decision of the Court, in which Judge Jennifer B. Campbell joined. Judge James B. Morse Jr. specially concurred.

MEMORANDUM DECISION

WILLIAMS, Judge.

¶1 Ahmadullah Popal, Selma Popal (collectively, "the Popals"), and Mohammad Shafiq Khalik appeal the superior court's grant of partial summary judgment to Michael Beck on claims for non-economic and economic damages in this medical malpractice and wrongful death case. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 Beck provided medical care to 11-year-old W.P.^[1] on January 6, 2016. W.P. was pronounced brain dead eight days later on January 14 and taken off of life support on January 25.

¶3 W.P.'s parents, the Popals, filed a medical malpractice and wrongful death^[2] claim against Beck in November 2017. The Popals filed an amended complaint shortly thereafter. Both complaints listed W.P. as a plaintiff.^[3] The amended complaint, in part, sought to compensate the Popals for their loss of economic support upon W.P.'s death and to compensate W.P. for her loss of future earnings and loss of a normal life.

¶4 Beck moved for partial summary judgment on the claim for non-economic damages for W.P.'s loss of a normal life, which the superior court granted. Beck then moved for partial summary judgment on the claim for economic damages, specifically for W.P.'s lost earning capacity and household services. The Popals responded in opposition and moved concurrently to amend the complaint to substitute Khalik, the personal representative of W.P.'s estate, ^[4] for W.P., which the superior court granted. In the second amended complaint, the estate sought compensation for W.P.'s lost future earnings and lost value of her life, and the Popals again sought compensation for lost economic support upon W.P.'s death. After oral argument, the court granted Beck's motion for partial summary judgment on the economic damages claim and entered judgment dismissing those claims against Beck pursuant to Rule 54(b) of the Arizona Rules of Civil Procedure.

¶5 We have jurisdiction over appellants' timely appeal pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S. § 12-2101(A)(1).

DISCUSSION

¶6 We review de novo the grant of summary judgment. Dabush v. Seacret Direct LLC, 250 Ariz. 264, 267, ¶ 10 (2021). We view the facts "in the light most favorable" to appellants, against whom the superior court granted summary judgment. Id. When there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, we will affirm. Ariz. R. Civ. P. 56(a); Thompson v. Pima County, 226 Ariz. 42, 44, ¶ 5 (App. 2010).

I. Non-Economic Damages

¶7 Appellants challenge the grant of summary judgment on the claim for W.P.'s "loss of normal life" or "loss of enjoyment of life" damages, often referred to as hedonic damages. See Ogden v. J.M. Steel Erecting, Inc., 201 Ariz. 32, 38, ¶ 26 (App. 2001) (describing "hedonic damages" as "damages to the plaintiff for the loss of enjoyment of life's activities").

¶8 Arizona's preclusion of an award for damages for pain and suffering of an injured person upon death includes damages for the loss of enjoyment of life. A.R.S. § 14-3110; Quintero v. Rodgers, 221 Ariz. 536, 539-40, ¶¶ 6-10 (App. 2009) (concluding that a loss of "enjoyment of life" claim is encompassed under the ban of damages for pain and suffering of a decedent under A.R.S. § 14-3110); Martin v. Staheli, 248 Ariz. 87, 89, ¶ 1 (App. 2019) (holding that an injured party's death extinguishes claim for hedonic damages). Thus, A.R.S. § 14-3110 precludes damages for W.P.'s loss of enjoyment of life.

¶9 Appellants argue that damages for the loss of W.P.'s "normal life" is not a component of pain and suffering because it relates to "disability" and would compensate for W.P.'s "complete inability to live at all." Appellants state the claim as "loss of normal life," rather than "loss of enjoyment of life." No Arizona statute or case, however, recognizes a claim for such loss, regardless of how it is phrased. And as for any argument regarding compensation for hedonic damages from the time of the alleged malpractice until W.P.'s death 19 days later, Arizona law also precludes such a claim.^[5] See A.R.S. § 14-3110; Badia v. City of Casa Grande, 195 Ariz. 349, 354-56, ¶¶ 18-24 (App. 1999) (finding no error in superior court ruling concluding any damages for pain and suffering arguably caused by alleged use of excessive force did not survive death that occurred several hours later); Eades v. J.P. House, 3 Ariz.App. 245, 247 (1966) (concluding that an action for pain and suffering does not survive the death of the injured person when death occurs during an appeal from a judgment in a personal injury action and specifically noting the cause of action for pain and suffering abates upon death).

¶10 Appellants also contend that A.R.S. § 14-3110 only prohibits damages for pain and suffering, but not for loss of enjoyment of life, which are separate damages as set forth in Ogden and Mendoza v. McDonald's Corp., 222 Ariz. 139 (App. 2009). Although both Ogden and Mendoza differentiate between pain and suffering damages and hedonic damages as related but separate items of general damages for jury-instruction purposes, neither involved claims pursuant to A.R.S. § 14-3110. Ogden, 201 Ariz. at 38-39, ¶¶ 26-31; Mendoza, 222 Ariz. at 150, ¶ 33 n.17. Moreover, in Quintero, this court directly addressed the distinction between pain and suffering and hedonic damages for purposes of A.R.S. § 14-3110. 221 Ariz. at 539-40, ¶¶ 6-10. There, we held that there was no persuasive distinction between them for purposes of A.R.S. § 14-3110 and barred recovery for hedonic damages in a survival action. Id.; see also Martin, 248 Ariz. at 89, ¶ 1, at 92, ¶ 18 n.1. Appellants offer no compelling reason to stray from that holding here. Thus, the superior court properly granted summary judgment on the claim for non-economic damages.

II. Economic Damages

A. The Popals' Economic Damages Claims

¶11The Popals argue they are entitled to recover W.P.'s lost economic support under Arizona's wrongful death act, A.R.S. §§ 12-611 through -613. Beck argues that such damages in the case of an unemployed 11-year-old minor would be speculative and that the court properly granted summary judgment on this issue.

¶12 Although statutory beneficiaries in a wrongful death action can recover their economic loss resulting from death, ^[6] speculative damages may not form the basis of a judgment. Coury Bros. Ranches, Inc. v. Ellsworth, 103 Ariz. 515, 521 (1968) (finding evidence was insufficient to establish damages with reasonable certainty). In response to the motion for summary judgment, the Popals provided no evidence of any history of 11-year-old W.P.'s employment or documented history of providing monetary support for the family. The jury would need to engage in layer upon layer of assumptions to reach a damage award in this case, including assuming that W.P. would reach the age of majority, obtain a job, and decide to contribute financially to her parents. Given the number of assumptions required and the lack of any evidence supporting the Popals' economic damages claim, the court properly granted summary judgment on this issue. See Ariz. R. Civ. P. 56(e); MacConnell v. Mitten, 131 Ariz. 22, 25 (1981) (in response to summary judgment motion, non-moving party must show by competent evidence specific facts demonstrating genuine trial issue).

B. The Estate's Economic Damages Claim

¶13 Appellants argue the estate is permitted to recover W.P.'s lost future earnings under both the wrongful death and survival statutes. However, the estate is not entitled to economic damages under the wrongful death statute because it can seek such damages only if none of the statutory beneficiaries survive and here W.P.'s parents survived her. See A.R.S. § 12-612(A).

¶14 As for the estate's claim under the survival statute, Beck argues any such damages would be limited to recovery from the time of accident to death.^[7] We agree. Although W.P.'s personal injury action against Beck survived her death, the personal representative of her estate is limited to recovery of any of W.P.'s lost earnings from the time of the alleged malpractice injury to the time of her death 19 days later. See A.R.S. § 14-3110; Barragan, 12 Ariz.App. at 404 (expressing temporal limitation under survival statute for damages suffered by decedent "from the time of accident until his death"); Martin, 248 Ariz. at 92, ¶ 15 (citing Barragan and explaining the "survival statute provides for recovery of damages sustained by the deceased party from the time of accident until [her] death"); Rodriguez v. Lytle, 1 CA-CV 20-0048, 2021 WL 566293, at *2, ¶ 8 (Ariz. App. Feb. 16, 2021) (mem. decision) (permitting superior court to consider whether minor decedents suffered economic damages from time of accident until death occurred). As noted, there is no evidence in the record that 11-year-old W.P. earned an income or was deprived of any income from the date of her injury to the date of her death.

¶15 Appellants...