SOLIMENO v. Yonan

• Decision Date: 18 March 2010
• Docket Number: No. 1 CA-CV 09-0139.,1 CA-CV 09-0139.
• Citation: 227 P.3d 481
• Parties: Joseph SOLIMENO and Donna Kay Solimeno, as the surviving parents of Doreen Pullin, decedent and on behalf of all statutory beneficiaries, including Nicholas Pullin, and Joshua Pullin, surviving sons, and Paul Pullin, minor surviving son, Plaintiffs/Appellees, v. Abdullah M. YONAN, M.D. and Nawal P. Yonan, husband and wife; Phoenix Medical Group, P.C., an Arizona corporation, Defendants/Appellants.
• Court: Arizona Court of Appeals

227 P.3d 481

Joseph SOLIMENO and Donna Kay Solimeno, as the surviving parents of Doreen Pullin, decedent and on behalf of all statutory beneficiaries, including Nicholas Pullin, and Joshua Pullin, surviving sons, and Paul Pullin, minor surviving son, Plaintiffs/Appellees, v. Abdullah M. YONAN, M.D. and Nawal P. Yonan, husband and wife; Phoenix Medical Group, P.C., an Arizona corporation, Defendants/Appellants.

No. 1 CA-CV 09-0139.

Court of Appeals of Arizona, Division 1, Department A.

March 18, 2010.

COPYRIGHT MATERIAL OMITTED

Raymond J. Slomski, Jr., P.C. By Raymond J. Slomski, Jr., Phoenix, Amy G. Langerman, P.C. By Amy G. Langerman, California, Attorneys for Plaintiffs/Appellees.

Jones Skelton & Hochuli P.L.C. By Stephen A. Bullington, Eileen Dennis GilBride, William R. Jones, Jr., Phoenix, Attorneys for Defendants/Appellants.

OPINION

DOWNIE, Judge.

¶ 1 Abdullah M. Yonan, M.D., Nawal P. Yonan, and Phoenix Medical Group, P.C. ("defendants") challenge the superior court's order that they pay attorneys' fees and costs as a sanction for a mistrial declared after the court found they violated pretrial disclosure requirements. We affirm and hold that a medical malpractice defendant who also testifies as a standard of care expert is subject to expert disclosure requirements regarding that issue. We also hold that a party who causes a mistrial may, under appropriate circumstances, be assessed monetary sanctions under Arizona Revised Statutes ("A.R.S.") section 12-349(A)(3) (2003).

FACTS AND PROCEDURAL HISTORY

¶ 2 Doreen Pullin was admitted to the intensive care unit ("ICU") of a local hospital with breathing difficulties. Tests revealed she had "extensive bilateral pulmonary emboli" or blood clots in both lungs.¹ Dr. Yonan, a pulmonologist, managed Ms. Pullin's care in the ICU. The day after she was admitted, Ms. Pullin suffered cardiac arrest and died as a result of the blood clots.

¶ 3 Plaintiffs filed a medical negligence/wrongful death action against defendants.² The primary contested issue was whether Dr. Yonan fell below the standard of care by using heparin to prevent further propagation of the clots rather than prescribing thrombolytic drugs ("thrombolytics") to dissolve Ms. Pullin's blood clots.

¶ 4 A jury trial began May 27, 2008. During plaintiffs' case in chief, defendants made numerous objections on the grounds of non-disclosure. On those occasions, the trial court asked plaintiffs' attorney whether and how disclosure had been made. It sustained objections when counsel could not establish proper pretrial disclosure.

¶ 5 On the fifth day of trial, plaintiffs rested. Defendants began their case in chief by calling Dr. Yonan to the stand. Dr. Yonan testified about the physiology of shock, interpreted Ms. Pullin's test results, and explained his experience with and professional opinions regarding treating blood clots with thrombolytics. Believing Dr. Yonan's opinion testimony had not been properly disclosed, plaintiffs objected and, outside the jury's presence, moved for a mistrial. The trial court found a disclosure violation about key disputed issues and declared a mistrial.

¶ 6 Plaintiffs filed a motion for sanctions, seeking attorneys' fees and costs under Arizona Rule of Civil Procedure ("Rule") 37(c) and A.R.S. § 12-349(A)(3). After briefing and argument, the trial court awarded plaintiffs $125,000 pursuant to A.R.S. § 12-349(A)(3) because defendants' failure to disclose "both expanded and delayed the proceedings."

¶ 7 Defendants timely appealed. We have jurisdiction pursuant to A.R.S. § 12-2101(B), (D) (2003).

DISCUSSION

¶ 8 Defendants assert three errors on appeal: (1) the determination they violated pretrial disclosure requirements; (2) the imposition of sanctions under A.R.S. § 12-349; and (3) the amount of the sanctions award.

1. Disclosure Issues

¶ 9 Whether a disclosure obligation exists in the first instance is a question of law that we review de novo. Assuming such an obligation exists, a trial court has broad discretion in determining whether evidence has been properly disclosed and whether it should be admitted at trial. See Link v. Pima County, 193 Ariz. 336, 338, ¶ 3, 972 P.2d 669, 671 (App.1998). Trial judges are better able than appellate courts to decide if a disclosure violation has occurred in the context of a given case and the practical effect of any non-disclosure. Such decisions will not be disturbed on appeal absent an abuse of discretion. Id. See also Allstate Ins. Co. v. O'Toole, 182 Ariz. 284, 287, 896 P.2d 254, 257 (1995) ("We have encouraged trial courts to take firm, active roles in the application and enforcement of the disclosure rules that were specifically designed to curb discovery abuse, excessive cost, and delay. We have pledged to support them if they do.").

a. Dr. Yonan was testifying as an expert

¶ 10 We disagree with defendants' assertion that Dr. Yonan was not testifying as an expert witness and that the general disclosures they made about him prior to trial were sufficient. In their initial disclosure statement, defendants revealed Dr. Yonan would "testify that his treatment of Doreen Pullin complied with the applicable standard of care in all respects." Defendants made this disclosure under a heading that read:

NAME AND ADDRESS OF EACH PERSON WHOM THE DISCLOSING PARTY EXPECTS TO CALL AS AN EXPERT WITNESS AT TRIAL, 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, A SUMMARY OF THE GROUNDS FOR EACH OPINION, THE QUALIFICATIONS OF THE WITNESS, AND THE NAME AND ADDRESS OF THE CUSTODIAN OF COPIES OF ANY REPORTS PREPARED BY THE EXPERT.

(Original emphasis.)

¶ 11 In medical malpractice cases, a defendant physician may testify regarding his or her adherence to the standard of care in addition to calling an independent standard of care expert witness. Rule 26(b)(4)(D), dealing with expert witnesses, states, in pertinent part:

In medical malpractice cases, each party shall presumptively be entitled to only one standard-of-care expert. A defendant may testify on the issue of that defendant's standard-of-care in addition to that defendant's independent expert witness and the court shall not be required to allow the plaintiff an additional expert witness on the issue of the standard-of-care.

(Emphasis added.)

¶ 12 The challenged trial testimony related to the standard of care. Dr. Yonan's defense was that he complied with the standard of care by prescribing heparin for Ms. Pullin (which his counsel described as "the gold standard treatment") versus thrombolytic drugs, which carry "significant risk" and are indicated only if a patient is in shock. The testimony at issue was clearly intended to inform the jury that, in Dr. Yonan's opinion, the patient was not in shock, and thus his course of treatment complied with the standard of care.

b. Disclosures of Dr. Yonan's opinions were inadequate

¶ 13 Arizona's rules of civil procedure mandate extensive pretrial disclosures regarding expert witnesses, requiring disclosure of:

The name and address of each person whom the disclosing party expects to call as an expert witness at trial, 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, a summary of the grounds for each opinion, the qualifications of the witness and the name and address of the custodian of copies of any reports prepared by the expert.

Rule 26.1(a)(6) (emphasis added).

¶ 14 We agree with Dr. Yonan that the rules do not require "scripting" of an expert's testimony. Englert v. Carondelet Health Network, 199 Ariz. 21, 25, ¶¶ 6-7, 13 P.3d 763, 767 (App.2000) (requiring disclosure of a fair description and the substance of facts and opinions of testimony, but not a "detailed scripting."). We reject, however, the suggestion that the trial court imposed a scripting standard here.³

¶ 15 As the trial court correctly observed, defendants' pretrial disclosures about Dr. Yonan were extremely general, stating he would testify

regarding his care and treatment of Ms. Pullin and any conversations he had with Ms. Pullin, any of her family members, or any of her health care providers. It is anticipated that Dr. Yonan will testify consistent with the medical records. It is also anticipated that Dr. Yonan will testify regarding his background, training, and experience. Dr. Yonan will testify that his care and treatment of Ms. Pullin complied with the applicable standard of care in all respects and did not cause any injury to Ms. Pullin.

We agree with the trial court that, as to the standard of care, defendants did not disclose "the substance of the facts and opinions to which Dr. Yonan is expected to testify" or "a summary of the grounds for each opinion." Rule 26.1(a)(6).

¶ 16 Nor did Dr. Yonan's deposition testimony adequately supplement defendants' disclosure statement. Although Dr. Yonan discussed certain signs of shock during his deposition, he never mentioned acidosis, troponin levels, or kidney function — all critical conditions or values according to his testimony before the jury. Additionally, when plaintiffs' counsel inquired at deposition why thrombolytics would ever be used, Dr. Yonan quoted medical authorities, characterized the drugs as a "last resort" treatment (even for individuals in shock), and stated, "You may . . . give thrombolytics. . . . But after one month the patient will die." At trial, on the other hand, Dr. Yonan detailed his own personal history of prescribing thrombolytics on approximately ten occasions. And, contrary to the outcome about which he testified at deposition, the patients who received thrombolytics under Dr. Yonan's care lived, though several experienced serious bleeding complications.

¶ 17 Defense counsel conceded that defendants had not specifically disclosed Dr. Yonan's history and experience with thrombolytics,...