Nevens Ex Rel. Hardt v. AZHH, LLC
242 Ariz. 449
| Ariz. Ct. App. | 2017Background
- Cathie Hardt was admitted to Arizona Heart Hospital (AZHH) after acute vascular occlusion and developed pressure ulcers that progressed to Stage IV by discharge to Trillium; plaintiffs alleged avoidable pressure ulcers due to AZHH negligence.
- Plaintiffs presented infectious disease physician Dr. Joseph Silva as a causation expert, who attributed the ulcers to preventable pressure injury and expressly declined to opine on vascular causes.
- AZHH called vascular surgeon Dr. Gerald Treiman, who testified the ulcers were caused by pre-existing vascular insufficiency.
- Plaintiffs planned vascular surgeon Dr. Paul Collier as a rebuttal witness to refute Treiman; late in trial the court excluded Collier as a "duplicative" expert under Ariz. R. Civ. P. 26(b)(4)(D).
- Following a defense verdict, plaintiffs appealed arguing improper exclusion of rebuttal expert testimony (and other evidentiary rulings); the Court of Appeals reversed and remanded for a new trial, finding prejudice from the exclusion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Preclusion of rebuttal vascular expert (Rule 26(b)(4)(D)) | Collier was a proper rebuttal expert who would address Treiman's vascular causation opinion; Silva had not opined on vascular issues. | Collier would be duplicative of Silva and thus disallowed under the one-expert-per-issue rule. | Court reversed: exclusion was improper because Collier would rebut a new defense theory (vascular causation) and exclusion prejudiced plaintiffs. |
| Loss-of-consortium claim (JMOL against Nevens) | Nevens argued sufficient evidence of interference with parent-child relationship to submit claim. | AZHH argued evidence insufficient; court entered judgment as a matter of law for defendant. | Not decided on merits — vacated/remanded for retrial along with main trial; court noted no need to decide now. |
| Testimony of former employee Pamela Molyneaux about chart entries and motive | Plaintiffs sought to show entries were added and possibly motivated by billing/liability concerns. | AZHH moved to preclude testimony about liability or billing motives as lacking foundation and irrelevant. | Court did not abuse discretion in limiting testimony about alleged motive to evade liability or billing; testimony found equivocal and irrelevant to negligence issue. |
| Admissibility of July 31, 2008 CMS letter on hospital-acquired condition billing | Plaintiffs offered letter to show billing incentive to misstate ulcers. | AZHH argued policy not effective during stay; patient not Medicare; potentially confusing. | Exclusion affirmed as not relevant and potentially confusing given timing and patient status. |
Key Cases Cited
- Schwartz v. Farmers Ins. Co. of Ariz., 166 Ariz. 33 (discretionary evidentiary rulings require abuse of discretion + prejudice)
- Yauch v. S. Pac. Transp. Co., 198 Ariz. 394 (questions of law reviewed de novo)
- Flying Diamond Airpark, LLC v. Meienberg, 215 Ariz. 44 (discretionary rulings subject to legal-error review when based on error of law)
- Sanchez v. Old Pueblo Anesthesia, P.C., 218 Ariz. 317 (Rule 26(b)(4)(D) allows expansion where issues cross disciplines)
- State v. Kennedy, 122 Ariz. 22 (definition of cumulative evidence)
- City Transfer Co. v. Johnson, 72 Ariz. 293 (rebuttal evidence may include testimony that could have been offered in case-in-chief)