*1 facts, reject Cir.1988). Accordingly, we ABC’s case, waited those In the defendants moving arguments. for lack dismiss six months before venue, two jurisdiction and personal the held a passed before court more months IV. CONCLUSION the During period, hearing. Id. 988. uphold trial court’s dismissal 27 We the re- the plaintiffs approached never Complaint and its de- First Amended of the discovery concerning the raised quest discovery. nial of Consequently, the court by the motions. delay the to allow later declined to lawsuit RUDOLPH J. CONCURRING: discovery Id. on these issues. belated Jr., GERBER, NOYES, Judge. Judge, E.G. the conclude that We refusing permit in its discretion not abuse
discovery ruling Vogler’s on motion. after the
Likewise,
delay
so
this lawsuit
we decline
discovery. Like the
begin
ABC can
defendants, Bar-
Equalization
Health Care
Vogler
months
moved to dismiss several
nard
ENGLERT,
surviving spouse of
receiving
complaint.
initial
ABC
after
Dwight Englert,
individually and on be-
discovery
to take
never
leave
of all
entitled to recover
half
those
during
jurisdictional
at that
issue
time or
Jody
Englert;
death
pend-
the four months the motion remained
Englert, Plaintiffs/Appellees,
Throughout
ing.
periods,
coun-
these
ABC’s
many
Vogler’s
sel had access
of Barnard
papers
files and
docu-
work
cited those
NETWORK,
HEALTH
an
CARONDELET
extensively
response.
ABC
ments
ABC’s
corporation, dba
St.
Arizona
Carondelet
effectively signaled
prepared
that it
thus
Defendant/Appel-
Joseph’s Hospital,
jurisdictional
litigate
challenge
based
lant/Appellee,
documents,
affidavits,
its
and the
those
Therefore,
say
court record.
cannot
deny-
its
abused
discretion
Ltd.,
Emergency
Associates,
Ari-
Room
request
discovery.
ing ABC’s belated
Bennett,
corporation; Randall L.
zona
id.
M.D.,
Doe
husband
and Jane
support
arguments,
In
of its
ABC
wife, Defendants/Appellants.
upon
Processing Equip-
Data
relies
Leasco
(2d
No. 2 CA-CV 00-0017.
Maxwell,
Corp. v.
ment
ond Circuit decided Id. at position
in no to dismiss case. plain- consequently It
1343-44. allowed depositions to take two to resolve
tiffs
outstanding at 1344 n. 12. issue. Id. court, are not 26 Unlike the Leasco conflicting parties with a record. The
faced facts; any dispute of the relevant
do not implications concern
conflicts
23
esophagitis. Dwight Dr. Bennett sent home prescribed Mylanta but and instructed Dwight hospital and Denise to return to the pain if the recurred. later, Approximately an hour and a half
Denise called Nurse hospital Carr Davis, P.C., By Piccarreta Barry Dwight’s symptoms M. because had returned. Mills, Tucson, Davis and E. JoJene Attor- spoke The nurse to Dr. in- who neys Plaintiff/Appéllee Englert. Denise structed her to tell and, Mylanta should take another dose of Christian, Coomer, P.L.C., By Mariano & *4 subside, pain Dwight his did not that Coomer, Tucson, Nancy Attorneys M. for hospital. Dwight return to the took a second Jody PlaintiffAppellee Englert. Mylanta dose of and and Denise went to Moeller, Bury, O’Meara, Humphrey By & awoke, Dwight bed. When Denise was unre- Humphrey Roger Marshall III and W. Frazi- sponsive. being hospital, After rushed to the er, Tucson, Attorneys Defendant/Appel- for Dwight morning died that from a “sudden lant/Appellee Carondelet Health Network. cardiac event” caused “atherosclerotic Parks, P.C., By Sanders & Frank A. cardiovascular disease.” Parks, Coury Fazio, M. Renee and Karl A. Phoenix, Attorneys 4 Denise Dr. Defendants/Appel- sued Bennett and Caronde- Emergency Associates, lants Room Dwight’s wrongful Ltd. and let for death from their Bennett. malpractice. juryA medical awarded $280,000 damages apportioned
her in and ten percent seventy- of the fault to Dr. OPINION percent Englerts, five per- and fifteen HOWARD, Presiding Judge. non-party physician. cent ato Denise then ¶ 1 In malpractice wrongful this medical trial, claiming filed a motion for new she had case, appellants death Dr. Randall Bennett1 because, been denied a fair trial over her challenge Carondelet Health Network objection, had allowed Dr. Bennett post-verdict the trial court’s orders argue an undisclosed affirmative defense appellee Englert Denise a new trial.2 Dr. closing argument: Englerts his that the challenges pretrial, Bennett also a interlocu- comparatively withholding were at fault for tory precluding arguing order him from from Dwight’s Dr. Bennett information about (Nurse Carr) a Carondelet nurse was com- history. granted medical The paratively negligent. Because the trial court trial, finding motion for that Dr. Ben- discretion, did not abuse its we affirm. withholding history theory nett’s of medical was not disclosed before trial and that the BACKGROUND permit court’s erroneous decision to Dr. Ben- argue nett to to the had wife, Denise, Dwight Englert and his rights. affected Denise’s After Carondelet hospital’s went emergency Carondelet’s clarification, filed a motion which Dr. midnight room around Dwight felt joined, specifically Bennett the trial court pressure in pain radiating his chest and ordered that the new trial address con- his neck and ear. Dr. Bennett met with Denise, damages. Dwight, tested issues of This examined con- tests, diagnosed having appeal ducted him as followed. 12-612(A), employee appellant party § 1. Dr. Bennett is an Emer- A.R.S. she is a to the action Associates, Ltd.; gency Room parties collectively as “Dr. Bennett.” we refer statutory to both on the issue of and where the beneficiaries’ interests conflict. See Williams v. Court, 468, 469-70, Superior Appellee Jody Englert is one of decedent (App.1991). appeal, 333-34 On she has Dwight Englert's surviving Although children. joined appellee Englert’s arguments. Denise case, statutory plaintiff she is not the in this (“The purpose of (App.1997) TRIAL
NEW give party adequate ... each challenges, Dr. sev Bennett arguments will be made notice what grounds, trial court’s decision eral trial.”). presented will be what evidence grant new trial. The trial court has supported finding is Because the trial court’s grant a new when it has discretion to by the and the undisclosed affirmative record admitting legal made a error or error precluded, defense should have been materially party’s evidence that affects ordering court did not abuse its discretion 59(a)(6), rights. Ariz.R.Civ.P. 16 A.R.S. Ab a new trial. discretion, sent an abuse will interfere with trial court’s decision to however, contends, Dr. Bennett a new trial this basis. MacConnell waived claim for a new trial that Denise her Society, Maricopa County Med. object introduction because she did (App.1986). “We Dwight’s history. granting trial under a of evidence about medical review an order denying object than more liberal standard an order But contends she did not to the one____” State Fire Cas. Farm Co. believed Dr. evidence because she Bennett Brown, prove introducing nonparty it to complied physician’s fault. Had Bennett *5 rules, with disclosure he could have ¶ The it trial court found that And, any misunderstanding. avoided such objection should have sustained Denise’s to not is whether the evidence was withholding history Dr. Bennett’s of medical admissible, but whether Dr. Bennett should theory had because that affirmative defense supported argue been allowed that it to not A party been disclosed before trial. is theory comparative an undisclosed of fault. required legal timely disclose its defenses object history Failure to the medical evi them, a de the factual bases for “fair dence, therefore, not a was waiver of the scription” each expected witness’s testimo claim for new trial a based undisclosed ny, opin and “the of the facts and substance defense. affirmative testimony. expert’s expected ions” each (2), (6). 26.1(a)(1), (3), If a Ariz.R.Civ.P. ¶ Dr. Den Bennett also contends trial, party fails to do so is not before her claim for a trial because ise waived new permitted to use information at objection, argument, closing her made before specific extenuating absent circumstances. exhibit, an concerned the admission of 37(c)(3). Ariz.R.Civ.P. not the affirmative defense. The undisclosed ¶7 Although Dr. Bennett insists that he implicitly found that Denise’s ob had disclosed the affirmative defense before jection objection included an to the new affir trial, supports the record the trial court’s defense; specifically mative the court stated finding that he not. had had Dr. Bennett entry granting Denise its minute a Englerts’ previously comparative that “this should have sustained Court fault, entirely grounds. He but on different objection theory being ar Plaintiffs theory comparative had not included his Moreover, gued closing.” if even Denise Englerts’ withholding based objected not at trial to the had undisclosed Dwight’s history in his medical defense, object her failure to affirmative joint pretrial statements or the statement. require the trial would not us overturn agree Although we with Dr. Bennett of a trial. require ‘script- Rule 26.1 does not “detailed Riddel, ing’ testimony,” party forfeiting poten- a expected Bryan [Tjhough a risks withholding ground appeal by n. n. 5 tial 178 Ariz. (1994), objection opponent’s pretrial pro- prompt an miscon- his disclosures not duct, any right he not forfeit the to assert vide notice that would he does Denise sustaining theory arguing fault. such misconduct as basis if Equip. Property Clark the trial court’s new order Co. Arizona Fund, 433, 440, impropriety Ins. Guar. 189 Ariz. court finds sufficient Cas. despite warrant a new trial tributory negligence the absence of not submitted objection. prompt shown). negligence unless defendant’s first And, laypeo- and Denise are 612, 620, v. Thompson, Liberatore 157 Ariz. ple, theory required Bennett’s new (App.1988); P.2d see also Sadler different applica- standard of care than that v. Arizona Flour Mills 58 Ariz. 489- professional, ble to Dr. under 90,121 (1942). malpractice theory. Denise’s medical ¶ 10 Dr. argues Bennett also that the Lasley v. Country Shrake’s Pharmacy, Club trial court should not have ordered a new 179 Ariz. because, even if his affirmative defense (App.1994), quoting Maricopa Bell v. Med. disclosed, timely justified he was Ctr., presenting it to rebut previously Denise’s (App.1988) (ordinary standard of care is that theory undisclosed that he had failed to con “reasonably prudent person under the cir- adequate duct an investigation Dwight’s into cumstances”; higher standard of care for history. that, Denise contends she “ providers health care based on ‘usual con- expand beyond did not previously her dis duct of other members of the defendant’s closed theories that Dr. negli Bennett was ”). profession in similar By circumstances’ gent diagnosis because his was based on issues, adding new beyond Dr. Bennett went assumptions incorrect Dwight’s about com subject. rebuttal on the same See Pool. plaints and night conduct on the Dr. Bennett ¶ 12 objected Dr. Bennett could have met with him and because Dr. Bennett made theory, op- had introduced a new inquiry insufficient Dwight’s into condition tactically intentionally tion he claims he when hospital. Denise called the We need rejected, or could have the court’s however, because, dispute, resolve this permission to introduce his new allegation correct, even if Dr. Bennett’s *6 go rebuttal. Because he chose to forward on any has authority supporting not cited own, approval, his without court he bore the use of an undisclosed affirmative defense to might risk that the court later determine opponent’s rebut an theory undisclosed of miscarriage justice. that there had been a of liability. Nor do we believe the trial court Parties Although should avoid such tactics. abused its in determining discretion that it adopt we do not a rule may that a trial court permitted should not have been here. permit, after-the-fact, approve never or of ¶ 11 Dr. Bennett could have introduced retaliatory use theory, of an undisclosed evidence to rebut Denise’s allegedly undis- Denise’s failure to disclose theory, negligence. closed See Pool v. liability require does not that we find the Court, 98, Superior 103, 139 Ariz. 677 P.2d its abused discretion 261, (1984) (where party 266 introduces “im- new trial here. proper argument,” or irrelevant evidence or ¶ party “may right other Next, ... retaliate 13 Dr. Bennett seems to with comments or evidence on the same inappropriate sub- claim that a new trial was be added). ject”) (emphasis cause, But such rebuttal though may even he have violated the only rules, evidence respond could to and under- the trial court could not allegedly improper theory mine the prevented liabili- have him arguing from the undis ty. contrast, In See id. introducing an closed affirmative defense to the be defense, XVIII, 5, undisclosed affirmative Dr. Bennett § cause article of the Arizona Con improperly litigation; added issues to the stitution mandates that defense of “[t]he attempted liability entirely shall, reduce his contributory negligence ... in all cases 12-2505(A) grounds. whatsoever, § See shall, A.R.S. abe of fact and (comparative negligence times, reduces jury.” at all be left This issue fault); proportionate degree below, Law v. generally was not raised and we do Court, 154, Superior 147, issues, Ariz. 157 755 P.2d not consider even constitutional is (1988) 1135, (same); sues, 1142 generally appeal. raised for the first time on Co., v. Moore Southwestern &Sash Door 71 KB. v. State Farm Fire & Cas. 189 418, (1951) (con- 423, 993, 1288, Ariz. 228 P.2d 996 (App. Ariz. 941 P.2d 1293
27
451,
partial
A
trial should
1997)
P.2d at 1167.
916
to address it because
. We decline
are not inextrica-
importance,
granted
the issues
no
be
when
perceive
issue
statewide
U.S.A.,
separated without
Corp. in
can be
bly
v. Nissan Motor
intertwined and
see Larsen
¶ 12,
119,
(App.
142,
P.2d
12
parties.
Ariz.
978
See Saide v. Stan-
prejudice
194
to the
1998)
35,
,
76, 79-80,
ton,
fundamental
error.
38-39
no
659 P.2d
135
260,
Thude,
257,
451,
934 (1983);
188 Ariz.
P.2d at
Ariz. at
916
Styles,
Williams
185
(“[T]he
(1997)
1349,
Muniz,
‘fundamental
1167;
21 Ariz.
P.2d
1352
see also Anderson
Freight
were
Bennett’s and Carondelet’s
the trial court did
rights.”).
gence into
at
found
error’
decision
a new trial on all contested issues
ski
(App.1996);
son’s
abuse of
423 P.2d
all,
elevate
(1965).
damages.
434,
Estate,
“inextricably
doctrine should be used
System,
court abused
civil
discretion.
Cole v.
“An ‘abuse of discretion’
14 Because
Ariz.App.
(1986)
defense of
We
liability
pantheon of
cases.”);
not abuse
intertwined” and
new trial
451,
Gerhart,
review the trial court’s
149 Ariz.
(“[Article]
(1967);
we next consider
its
contributory
discretion
Hall
Styles
its
arguments that
damage
In re
conclude
constitutional
Ariz.App.
130,
all issues
discretion
sparingly,
18, §
v. A.N.R.
1164,
v. Ceran
134,
Thomp
ordered
when
is dis
negli-
5
717
Ariz.App.
App.
wrongful
v. Posada
(cid:127)
liability
vivors’
ment,
all the issues. See
because recoverable
one
dent’s]
doubt
contend the new trial
[18]
P.2d at
hand,
liability/apportionment
related
25,
the issues of
negligent act
death.” A.R.S.
injuries
16 Dr. Bennett and Carondelet
¶ death action
28,
del
as
1167;
23,
On the other
error
apportionment
515 P.2d
Denise conceded at
Sol
inextricably
those issues
398 P.2d
resolved
“resulting
In re
Health Care
necessitating
Styles, 185 Ariz.
but, rather,
damages are not based
are
§
should be limited
Thompson’s
52,
at 931.
in favor of a trial
12-613;
hand,
generally
intertwined
from
55
issues.
and the
Ctr.,
damages in a
(1973).
a new
on the
see Mullen
oral
Estate,
damage
On
distinct
[dece
argu
Any
451,
sur
unreasonable,
manifestly
or exercised
cretion
*7
conflicting
there is
evidence
[w]here
rea
grounds, or for untenable
on untenable
liability, a
on all
is desir-
new trial
Torres v. North American Van
sons.”
there
[I]n
....
fault cases
able
35,
835,
Lines,
40,
135 Ariz.
658
interrelationship
fault and
an
between
is
(App.1982).
if we
have acted
840
Even
would
in-
damages
the
apparent on the face of
circumstances,
differently
we
under the same
The issues
structions.
affirm the trial court’s deci
nevertheless will
damages
blended
so interwoven and
are
“exeeed[
if it
the bounds
]
sion
did not
a
a rare
in which
that “it would be
case
by
challenged
the
act.”
performing
reason
jury
the
of its
would not consider
effect
Katz,
73,
1021,
83,
Toy
v.
192
961
percentages of fault
determination of
(App.1997);
Quigley
also
v. Tucson
1031
eventually
damages
be
award-
terms of
to
Court,
35, 37,
738, 740
City
643 P.2d
132
plaintiff.”
the
ed to
(“A
opinion
(App.1982)
judicial
difference
Courtney
City,
Kansas
775 S.W.2d
City of
discre
synonymous
not
with ‘abuse of
is
(citations omitted),
(Mo.App.1989)
”).
tion.’
Lively,
quoting Phillips
S.W.2d
Here,
¶
(Mo.App.1986).
the
submit-
trial
be
15 A new
court
wheth-
respect
question
a
to the trial
about
questions
ted
“the
or
by
damage
be
award would
decreased
decision found errone
er the
which the verdict or
is
59(h).
just Den-
Dwight’s fault or
ous,
But
Denise and
separable.”
both
Ariz.R.Civ.P.
may
suggests it
have consid-
ise’s fault. This
“[pjartial
trials are not recommended
new
per-
of its determination
opportunity for
ered “the effect
they create much
because
be
centages
injustice.” Styles,
Ariz. at
of fault
terms
confusion and
eventually
Phillips,
awarded.”
Appeals
708 S.W.2d Circuit Court of
concluded that the
discretion,
at 873. This would militate in favor of
trial court
finding
a new
had abused its
trial
damage
on all
the
did not
issues.
need to be
retried
independently
unless it was
flawed.
¶
addition,
18 In
the
court
in a
Id. at 836-37. The court noted that
position
better
than this court to assess the
plaintiffs misconduct necessitated the new
effect of Dr. Bennett’s misconduct on the
permitted
trial and that
it should
jury.
Taylor
v. Southern Pac. Transp.
“[ajbsent
position
seek to better its
the most
516, 521,
130 Ariz.
unusual
Id. at 837. In
circumstances.”
con-
(1981);
Palmer,
Miller v.
143 Ariz.
trast, Dr. Bennett’s actions necessitated the
And its
party seeking
new trial and he is the
limit
decision
a new trial on all issues was
scope
of the
trial.
See Southern
discretionary.
Styles,
185 Ariz. at
Gastelum,
Pac. Co. v.
36 Ariz.
not abuse its discretion ordering trial and that the new trial cover granting a The court’s orders damages. contested issues new trial on all contested issues are affirmed.
NURSE CARR that, Bennett if we af- contends FLÓREZ, M. JAN CONCURRING: *9 granting a new firm the trial court’s orders Judge. pre- trial we should review the ESPINOSA, Judge, dissenting in Chief interlocutory order Caronde- part. limine, Iet’s motion which Carondelet majority raising sought I with the preclude Dr. Bennett from concur except propriety of the trial court’s comparative issues as an issue at Nurse Carr’s issue of dam- of a new trial on the fault. limine Carondelet’s motion correctly majority Although, as ages. that Dr. Bennett’s of Nurse Carr’s notes, the trial court’s care this a matter within comparative fault and his standard of is discretion, I Styles, would find that discretion liability
exceeded here because the and dam-
ages way “inextricably were in no partial A appropriate
intertwined.” retrial is
when the are not interwoven and the
possibility prejudice slight. Styles, is 451-52, 1167-68;
185 Ariz. at Enters.,
Martinez v. Schneider As the concedes,
majority liability “the issues
damages wrongful gen- in a death action are
erally damages distinct because recoverable act, but,
are negligent not based rath- er, injuries ‘resulting on the survivors’ from ” Supra, [decedent’s] death.’ 16.
Such is case. Carondelet’s contention
that the damages separate evidence of liability distinct from the evidence of parties fault of the is borne
out It record. is unfair neverthe- require retry
less Carondelet to a valid and damages verdict, particularly
untainted when party responsible
it was not the for the con- necessitating
duct a new trial. See Winn.
¶28 Moreover, motion, in her
Englert asserted error as to
issues. She was therefore not entitled to
relief from judgment. See Ariz. (if 59(h) granted,
R.Civ.P. should be
“only” respect “with to which the erroneous”).
verdict or decision found I judgment only
would affirm the trial court’s granting Englert
to the extent new trial issues she contested.
KZPZ Appellee,
Plaintiff —
BLACK CANYON CITY CONCERNED
CITIZENS, Intervenor-Appellant.
1No. CA-CV 00-0128. Arizona, Appeals
Court 1, Department C.
Division
Nov.