Sandretto v. Payson Healthcare Mgmt., Inc.

• Decision Date: 11 March 2014
• Docket Number: No. 2 CA–CV 2013–0044.,2 CA–CV 2013–0044.
• Citation: 234 Ariz. 351,322 P.3d 168,682 Ariz. Adv. Rep. 10
• Court: Arizona Court of Appeals
• Parties: Lori SANDRETTO, a Single Woman, Plaintiff/Appellee, v. PAYSON HEALTHCARE MANAGEMENT, INC. an Arizona corporation, dba Payson Regional Bone & Joint, Defendant/Appellant.

234 Ariz. 351

322 P.3d 168

682 Ariz. Adv. Rep. 10

Lori SANDRETTO, a Single Woman, Plaintiff/Appellee,

v.PAYSON HEALTHCARE MANAGEMENT, INC. an Arizona corporation, dba Payson Regional Bone & Joint, Defendant/Appellant.

No. 2 CA–CV 2013–0044.

Court of Appeals of Arizona,

Division 2.

March 11, 2014.

Lloyd & Robinson, PLLC, By Arthur E. Lloyd and Doris Robinson Wait, Payson, and McGovern Law Offices, By Thomas P. McGovern, Phoenix, and Law Office of Scott E. Boehm, P.C., By Scott E. Boehm, Phoenix, Counsel for Plaintiff/Appellee.

Law Offices of Don Stevens, P.C., By Don Stevens, Phoenix, Counsel for Defendant/Appellant.

OPINION

MILLER, Judge.

¶ 1 Payson Healthcare Management (PHM) appeals from the trial court's denial of its motion for new trial after a medical malpractice case ended in judgment for the appellee, Lori Sandretto. PHM contends the court erred in denying the motion, which included claims the court made erroneous evidentiary rulings, improperly denied a continuance request, and improperly approved a co-defendant's settlement agreement. PHM also argues the court erred in finding the jury verdict was supported by substantial evidence. Finding no error, we affirm.

Factual and Procedural Background

¶ 2 We view the evidence in the light most favorable to upholding the jury's verdict. Hutcherson v. City of Phoenix, 192 Ariz. 51, ¶ 13, 961 P.2d 449, 451 (1998). In April 2008, Sandretto slipped on a wet floor and injured her right knee, which eventually required outpatient surgery by a non-party physician to repair a torn meniscus. Sandretto's pain continued, which prompted her to see Dr. Charles Calkins, an orthopedic surgeon with thirty-five years of experience. Calkins was employed by PHM. He found that the meniscus was still torn and performed a second surgery on September 5, 2008. Calkins removed fluid from the knee during surgery for testing, which was subsequently negative for infection.

¶ 3 Sandretto's condition initially improved, but within a week her knee became swollen, red, and painful. She was examined by James Morphis, a physician's assistant (PA) for Calkins. Morphis prescribed antibiotics for a skin infection. On September 14, 2008, Sandretto went to the emergency room. Calkins came to the hospital, diagnosed her with a common skin infection and prescribed a different antibiotic. Five days later, Sandretto called Calkins's office to say her knee still hurt and was now draining fluid. Morphis told a staff member to tell Sandretto to keep taking antibiotics.

¶ 4 Sandretto saw Morphis again on September 24, 2008, and still believed she had a skin infection. On October 10, 2008, Morphis aspirated Sandretto's knee and had the fluid tested. Three days later, the results came back positive for methicillin-resistant Staphylococcus aureus (MRSA).¹ Calkins did not recall being told about the results, but records showed he wrote a prescription for intravenous antibiotics. Sandretto eventually saw Calkins on October 22, 2008, and he performed a surgery on October 24, 2008, to wash out the MRSA. Sandretto required two more “washout” surgeries, and eventually needed a knee replacement. Her knee pain continued despite the knee replacement, and her treating physician diagnosed her with Complex Regional Pain Syndrome (CRPS), a chronic pain condition caused by a nerve injury.

¶ 5 In 2010, Sandretto sued Calkins and PHM for medical malpractice, alleging Calkins did not act quickly enough to diagnose and treat the MRSA infection, thus necessitating aggressive medical treatments that resulted in permanent impairment. Calkins and Sandretto settled days before trial. After an eleven-day trial, the jury returned a verdict in favor of Sandretto for $7,275,160. Having filed an offer of judgment before trial, Sandretto sought and was granted sanctions pursuant to Rule 68, Ariz. R. Civ. P.

¶ 6 The trial court entered judgment on October 3, 2012, and PHM subsequently moved for a new trial. After a hearing, the court denied the motion. This timely appeal followed.

Discussion

Scope and standard of review on appeal

¶ 7 We first note that PHM's notice of appeal only seeks review “from the Order of the Gila County Superior Court, made and entered on the 19th day of February, 2013, denying the Motion for New Trial filed by [PHM].” Further, PHM properly invokes this court's jurisdiction pursuant to A.R.S. § 12–2101(A)(5)(a). The notice does not appeal from the final judgment as permitted by A.R.S. § 12–2101(A)(1). In its briefs, however, PHM raises arguments not made in its motion for a new trial. Because PHM did not appeal separately the underlying judgment, we must limit our review to issues raised in the Rule 59, Ariz. R. Civ. P., motion.²See Wendling v. Sw. Sav. and Loan Ass'n, 143 Ariz. 599, 601, 694 P.2d 1213, 1215 (App.1984); Matcha v. Winn, 131 Ariz. 115, 116, 638 P.2d 1361, 1362 (App.1981) (“[I]n reviewing the denial of a motion for new trial, this court may not go beyond the matters assigned as error in the motion.”).

¶ 8 Generally, we review a trial court's decision to deny a motion for a new trial for an abuse of discretion, and the burden is on the party seeking to overturn the trial court's judgment to show such an abuse. See Pullen v. Pullen, 223 Ariz. 293, ¶ 10, 222 P.3d 909, 912 (App.2009). Similarly, we review rulings on admissibility of testimony, motions to continue, and petitions to approve settlement for an abuse of discretion, as discussed further below. See Pipher v. Loo, 221 Ariz. 399, ¶ 6, 212 P.3d 91, 93 (App.2009) (testimony); Alberta Sec. Comm'n v. Ryckman, 200 Ariz. 540, ¶ 11, 30 P.3d 121, 124 (App.2001) (motions to continue); Barmat v. John & Jane Doe Partners A–D, 165 Ariz. 205, 210, 797 P.2d 1223, 1228 (App.1990) (settlement agreements). A trial court abuses its discretion if it commits an error of law reaching a discretionary conclusion; therefore, we review de novo questions of law that were included in the motion for new trial. See Twin City Fire Ins. Co. v. Burke, 204 Ariz. 251, ¶ 10, 63 P.3d 282, 284 (2003).

Admissibility of expert medical testimony

¶ 9 PHM argues the testimony of Dr. Michael Ferrante, one of Sandretto's expert witnesses, should have been precluded pursuant to Rule 702, Ariz. R. Evid. Ferrante opined that Sandretto suffered from CRPS caused by one or more of the surgical procedures required to clean out the MRSA infection and to replace Sandretto's knee. His opinion complemented the testimony of Sandretto's MRSA expert, Dr. Talan, who testified to the deleterious effects of MRSA and its treatment, unnecessary damage caused by the late diagnosis, and his opinion about the date of infection. Taken together, the testimony of Ferrante and Talan permitted the jury to construct a cause-and-effect timeline regarding MRSA, multiple surgeries, and CRPS.

¶ 10 PHM contends Ferrante's diagnosis of CRPS and his causation opinion lacked “reliable or scientific[ ]” grounds.³ This argument requires us to examine the gate-keeping function of Rule 702 as it pertains to the opinions of an examining physician.

¶ 11 We review the trial court's decision to admit or exclude expert testimony for an abuse of discretion. See Pipher, 221 Ariz. 399, ¶ 6, 212 P.3d at 93. The admissibility of expert testimony is governed by Rule 702, which was amended effective January 1, 2012 to adopt the language of Rule 702, Fed.R.Evid., and to reflect the principles set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). See State v. Salazar–Mercado, 232 Ariz. 256, ¶ 5, 304 P.3d 543, 546 (App.2013); see alsoAriz. R. Evid. 702 cmt. We construe the amended Arizona rule in accordance with its federal counterpart. Ariz. State Hospital/Ariz. Cmty. Protection & Treatment Ctr. v. Klein, 231 Ariz. 467, ¶ 26, 296 P.3d 1003, 1009 (App.2013); see also Ariz. R. Evid. Prefatory Cmt. to 2012 Amendments (“Where the language of an Arizona rule parallels that of a federal rule, federal court decisions interpreting the federal rule are persuasive but not binding....”).

¶ 12 Rule 702 as amended sets out four requirements that must be met before an expert witness may testify in the form of an opinion or otherwise, and states in its entirety:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

Ariz. R. Evid. 702. Daubert offers additional “non-exclusive factors for determining whether scientific evidence is admissible,” including empirical testing, peer review, error rate, the existence of standards and controls, and the degree to which the theory and technique is generally accepted by a relevant scientific community. Ariz. State Hosp., 231 Ariz. 467, ¶ 27, 296 P.3d at 1009;see also Daubert, 509 U.S. at 593–94, 113 S.Ct. 2786.

¶ 13 Application of the Daubert factors, however, particularly to medical testimony like that of Ferrante, requires flexibility. See Sullivan v. U.S. Dept. of Navy, 365 F.3d 827, 834 (9th Cir.2004) (when medical testimony in malpractice case “based on specialized as distinguished from scientific knowledge, the Daubert factors are not intended to be exhaustive or unduly restrictive”); see also Huss v. Gayden, 571 F.3d 442, 455 (5th Cir.2009)( Daubert standards flexible). Although grounded in science, medicine is a profession that requires physicians to rely on their previous experiences and sound judgment. Cf. Primiano v. Cook, 598 F.3d 558, 565 (9th Cir.2010) (finding experience-based physician testimony admissible in products liability action). Moreover, federal appellate...