Orosco v. McShcd, 1 CA-CV 15-0580

Background

Brandon Orosco, treated at Maricopa County Special Health Care District (MCSHCD) for severe burns, had a two-foot guidewire left in his artery during central-line insertion by a resident; the resident did not notify supervisors or radiologists when the wire could not be located.
Six weeks later the guidewire caused severe pain; multiple attempts to remove it led to collapse of the femoral artery, stent placement, infection, bypass surgery and eventual removal of the femoral artery; Brandon suffers chronic pain, nerve damage, scarring, psychiatric injury, and an increased risk of leg amputation.
Plaintiffs (Brandon, his wife, and their three children) sued MCSHCD and a radiology group; jury returned a $4.25 million verdict allocating 99% fault to MCSHCD and 1% to the radiology group.
MCSHCD moved for judgment as a matter of law on the children’s loss-of-consortium claim and later sought a new trial or remittitur and other relief; the superior court denied those motions and awarded taxable costs and Rule 68 sanctions to the Oroscos.
On appeal, the court affirmed most rulings but vacated in part the costs and Rule 68 sanctions and remanded for recalculation of certain taxable-cost and expert-fee items.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether judgment as a matter of law should have been granted on children’s loss-of-consortium claim	Children’s testimony and parents’ testimony showed significant interference with normal parent-child relationship	No evidence the parent-child relationship was damaged; children should have testified	Denied — viewing evidence in plaintiffs’ favor reasonable jurors could find interference; children need not testify under Arizona law
Admissibility of standard-of-care and expert testimony	Expert could testify about deviation from standard of care and breach	Precluded because MCSHCD allegedly conceded negligence; challenges to expert qualifications and duplicative testimony	Admitted — fault still in issue due to comparative fault; only plaintiffs’ standard-of-care expert testified on deviation; qualification disputes unnecessary given concession of deviation
Admission of evidence of increased risk of amputation	Risk evidence is part of damages (greater susceptibility/future harm)	Thompson requires 'increased risk' only for loss-of-chance causation; evidence insufficient for causation	Admitted as damages evidence — risk supports compensation for future susceptibility when accompanied by physical deterioration
Allegedly improper closing and argument about community conscience and failure to call defense examiner	Counsel urged jury to consider harm and verdict forms; referenced defense’s decision not to call examiner	Comments amounted to asking jury to punish defendant and invited adverse inference from missing witness	No reversible error — statements were allowable exhortation to consider damages; adverse-inference argument permissible under Gordon factors because examiner was under defendant’s control and uniquely knew examination details
Jury instructions re: punitive damages and pre-existing injuries	Plaintiffs argue standard instructions sufficed to limit recovery to harms caused by MCSHCD	Defendant sought explicit prohibition on punitive damages and instruction excluding damages from pre-existing burns and a later MVA	No error — court’s general instructions on compensable damages were adequate; defendant did not request more specific instruction
Size of verdict (new trial/remittitur)	Verdict supported by pain, suffering, psychiatric injury, future risk evidence	Verdict excessive and shocking; request to remit or grant new trial	No abuse of discretion — jury’s damages award not so unreasonable as to shock the conscience; appellate court will not reweigh evidence
Taxable costs and Rule 68 sanctions calculation	Plaintiffs sought taxable costs and doubled sanctions under Rule 68(g) including certain expert fees and travel costs	Defendant challenged untimely verification, improper taxable items (meal, expert travel time/expenses), and doubling non‑taxable expert fees	Partially vacated and remanded — court affirmed award generally but ordered remand to (1) vacate taxable cost items lacking statutory authority (meals, experts’ travel time and travel expenses) and (2) ensure Rule 68(g) doubling applied only to properly taxable items; some expert fees may be recoverable under Rule 68(g) but must be sorted on remand

Key Cases Cited

Glazer v. State, 237 Ariz. 160 (court reviews denial of JMOL de novo) (standards for judgment as a matter of law)
Villareal v. State Dep't of Transp., 160 Ariz. 474 (loss of parental consortium requires damage to parent-child relationship)
Thompson v. Sun City Community Hosp., Inc., 141 Ariz. 597 (distinguishing causation by "increased risk" in loss-of-chance cases)
Kenyon v. Hammer, 142 Ariz. 69 (recognizing greater susceptibility to future harm as element of damages)
Felder v. Physiotherapy Assocs., 215 Ariz. 154 (increased risk of future harm compensable when accompanied by physical deterioration)
Hutcherson v. City of Phoenix, 192 Ariz. 51 (standard for reviewing denial of new trial/remittitur)
Gordon v. Liguori, 182 Ariz. 232 (limits and factors for drawing adverse inference when a party fails to call a witness)
Levy v. Alfaro, 215 Ariz. 443 (Rule 68 allows recovery of reasonable expert fees; not limited to trial testimony)