Blair PRESTON, Christy Preston, and Melissa Sansing, all natural children of Jean Preston, Deceased, Plaintiffs/Appellants/Cross-Appellees, v. Michael AMADEI, M.D., Defendant/Appellee/Cross-Appellant.
No. 1 CA-CV 14-0222
Court of Appeals of Arizona, Division 1.
Aug. 27, 2015.
357 P.3d 159
and checks to the beneficiaries in forum state, together with any occasional telephone calls that related thereto, did not constitute minimum contacts); In the Matter of the Estate of Ducey, 241 Mont. 419, 787 P.2d 749, 752 (1990) (payment of benefits into forum state as well as routine oral and written contacts relating to payments and trust account statements were insufficient to establish requisite minimum contacts); Fellows v. Colburn, 162 N.H. 685, 34 A.3d 552, 560-61 (2011) (same).
¶ 27 Wells Fargo also argues that IBMC‘s act of sending its declaration to Hoag‘s attorney in support of Hoag‘s efforts to quash Wells Fargo‘s subpoenas seeking to garnish the Unitrust income was sufficient to establish the necessary minimum contacts. Wells Fargo seeks to liken IBMC‘s declaration to an opinion letter written to advise Hoag, and characterizes such an action as being directed at the forum state. In support of this argument, Wells Fargo relies on Beverage v. Pullman, 232 Ariz. 414, 306 P.3d 71. In Beverage, an out-of-state law firm issued an opinion letter to an Arizona client and the court determined it had personal jurisdiction over the firm regarding the client‘s reliance on the letter.
¶ 28 Beverage is distinguishable from this case on multiple grounds. In Beverage, the law firm sent promotional material about the firm to the client‘s agent in Arizona in order to secure the client‘s business. Beverage, 232 Ariz. at 417, ¶ 11, 306 P.3d 71. The firm communicated with the client in the course of its representation and drafted and issued an opinion letter knowing the client would rely on the letter. Id. Here, there is no evidence that IBMC took any steps to solicit Hoag, or any other Arizona residents, as beneficiaries of the Unitrusts. Additionally, the letter written by IBMC was not an opinion letter, was not written for Hoag‘s benefit, and was not intended to be relied on by Hoag. Furthermore, in Beverage, the contents of the opinion letter were at the heart of the client‘s claims against the firm; here, the letter written by IBMC is a communication IBMC was required to write in response to Wells Fargo‘s actions, e.g., Wells Fargo‘s subpoenas for information concerning the Unitrusts. See Batton, 153 Ariz. at 274, 736 P.2d 2 (“[T]he requisite minimum contacts are not established when the plaintiff‘s action ‘requires the defendant to send communications into th[e] forum.’ “).
CONCLUSION
¶ 29 Accordingly, Wells Fargo has not shown evidence of sufficient minimum contacts between IBMC and Arizona in order to justify subjecting IBMC to personal jurisdiction in Arizona. We recognize the trial court may have felt compelled to exercise its jurisdiction due to the nature of the fund transfers.4 However, where there is no personal jurisdiction, the court has no power to do so. Thus, we accept jurisdiction and grant relief by reversing the trial court‘s denial of IBMC‘s motion to dismiss for lack of personal jurisdiction, and remand for further proceedings consistent with this opinion.
Campbell, Yost, Clare & Norell, P.C., By Stephen C. Yost, Kenneth W. McCain, Phoenix, Counsel for Defendant/Appellee/Cross-Appellant.
Judge MICHAEL J. BROWN delivered the opinion of the Court, in which Presiding Judge MAURICE PORTLEY and Judge JOHN C. GEMMILL joined.
OPINION
BROWN, Judge:
¶ 1 Blair Preston, Christy Preston, and Melissa Sansing (“Plaintiffs“) appeal the trial court‘s summary judgment in favor of Michael Amadei, M.D., on their medical malpractice claim. Specifically, they argue the court erred in finding they failed to disclose a qualified standard of care expert as required under
BACKGROUND
¶ 2 In June 2009, Jean Preston (“Ms. Preston“) was involved in a motor vehicle accident. She sustained a fractured femur and was later admitted to Kachina Point Health Care and Rehabilitation Center (“Kachina“) for rehabilitation services. At the time of her admission, Ms. Preston had longstanding cardiac issues.
¶ 3 On August 11, Ms. Preston experienced severe chest pain, left-hand numbness, and uncontrolled hypertension, prompting the Kachina nursing staff to ask Dr. Amadei, the facility‘s medical director and primary care doctor, to evaluate her. After conducting an examination, Dr. Amadei ordered the treating nurse to administer nitroglycerin and Ms. Preston‘s pain and other symptoms soon abated. Notwithstanding her symptom relief, Ms. Preston died at Kachina several hours later. Medical examiner Mark A. Fischione, M.D., who conducted the subsequent autopsy, determined she died from complications of congestive heart failure.
¶ 4 Plaintiffs sued Dr. Amadei in April 2011, alleging he was negligent in providing medical care to their mother and that such negligence caused her death.1 Dr. Amadei is board-certified in internal medicine. David Lapan, M.D., Plaintiffs’ standard of care expert, is board-certified in internal medicine and also in cardiology.
¶ 5 In June 2013, after discovery closed, Dr. Amadei sought summary judgment on the following grounds: (1) Dr. Lapan was not qualified as a standard of care expert under
¶ 6 The trial court granted summary judgment in favor of Dr. Amadei, finding that the relevant specialty for evaluating Dr. Amadei‘s care and treatment is internal medicine, and that Dr. Lapan is a cardiologist who “does not currently practice internal medicine.” The court explained that “[i]n the year preceding the events that gave rise to this action, [Dr. Lapan] did not spend a majority of his time practicing or teaching in the specialty of internal medicine.” The court thus determined that Dr. Lapan failed to meet the statutory qualifications to be able to offer standard of care testimony. The court also granted Dr. Amadei‘s motion in limine as well as the request for sanctions, concluding Plaintiffs “should have known” that the content of their Dr. Fischione disclosure “was false and misleading.” Although the court was “unable to conclude [Plaintiffs] knew the disclosure was false and misleading,” the court found Plaintiffs were under a “duty to ensure the disclosure was accurate before disseminating the information,” and expressly noted that Plaintiffs failed to inquire as to whether Dr. Fischione agreed with the opinions as set forth in the disclosure until “after the disclosure was made rather than before.” (Emphasis in original.) The court therefore determined Plaintiffs bore “the consequences of an erroneous disclosure” and awarded Dr. Amadei his reasonable attorneys’ fees and costs “incurred by
¶ 7 Plaintiffs filed a motion to substitute a new standard of care expert and requested a trial continuance. They also filed a motion for new trial, requesting that the court vacate its entry of summary judgment in favor of Dr. Amadei. The court denied the motion to substitute, reasoning that Plaintiffs made no attempt to cure the defect until after oral argument was held on Dr. Amadei‘s motion for summary judgment. The court also denied the motion for new trial. Plaintiffs timely appealed and Dr. Amadei cross-appealed the denial of his motion for summary judgment on causation.
DISCUSSION
A. Disqualification of Expert Witness
¶ 8 Plaintiffs argue the trial court erred by disqualifying their standard of care expert pursuant to
¶ 9 Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.
¶ 10 A plaintiff who asserts a medical negligence claim against a health care professional must prove that the health care professional failed to comply with the applicable standard of care.
1. If the party against whom or on whose behalf the testimony is offered is or claims to be a specialist who is board certified, the expert witness shall be a specialist who is board certified in that specialty or claimed specialty.
2. During the year immediately preceding the occurrence giving rise to the lawsuit, devoted a majority of the person‘s professional time to the following:
(a) The active clinical practice of the same health profession as the defendant and, if the defendant is or claims to be a specialist, in the same specialty or claimed specialty.
¶ 11 As explained by our supreme court, the statute “is clear: in a medical malpractice action, only physicians with comparable training and experience may provide expert testimony regarding whether the treating physician provided appropriate care.” Baker, 231 Ariz. at 383, ¶ 9, 296 P.3d at 46. Expertise in a medical specialty is relevant to the standard of care in a particular case, however, only if the care or treatment rendered involved a medical specialty. Id. at 384, ¶ 12, 296 P.3d at 47. Accordingly, the statutory requirement that a testifying expert specialize in “the same specialty or claimed specialty” as the treating physician applies “only when the care or treatment at issue was within that specialty.” Id. at ¶ 14.
¶ 12 Given these considerations, a court “must initially determine if the care or treatment at issue involves the identified specialty, which may include recognized subspecialties.” Baker, 231 Ariz. at 386, ¶ 27, 296 P.3d at 49. “If it does, testifying experts must share the same specialty as the treating physician.” Id. “Because an individual cannot devote a ‘majority’ of his or her time to more than one specialty, only the one relevant specialty need be matched.” Id. at ¶ 28.
¶ 13 It is undisputed that an internist may treat chest pain and related symptoms, among other things, and Dr. Amadei was therefore not practicing outside his internal medicine specialty when treating Ms. Preston. At the time of Ms. Preston‘s cardiac episode and death, and the year preceding, Dr. Lapan, like Dr. Amadei, was a board-certified internist. Unlike Dr. Amadei, however, Dr. Lapan did not have an active clinical practice in the specialty of internal medicine. Except for his occasional treatment of patients for conditions that turned out to be unrelated to cardiology, Dr. Lapan‘s clinical practice was limited during that time to cardiology, a distinct subspecialty Dr. Amadei neither claims nor practices.
¶ 14 To qualify as a standard of care expert in this case under
B. Motion to Substitute
¶ 15 Plaintiffs argue that even if Dr. Lapan was properly disqualified from testifying, the trial court erred by denying their motion to substitute a standard of care expert. We will not disturb a court‘s ruling on discovery and disclosure matters absent an abuse of discretion. Link v. Pima County, 193 Ariz. 336, 338, ¶ 3, 972 P.2d 669, 671 (App.1998). A court abuses its discretion when it commits an error of law in the process of reaching a discretionary decision. Grant v. Ariz. Pub. Serv. Co., 133 Ariz. 434, 456, 652 P.2d 507, 529 (1982).
¶ 16 In his preliminary expert opinion affidavit, disclosed in July 2011, Dr. Lapan avowed he was board-certified in both internal medicine and cardiology and stated that
¶ 17 Section 12-2603 sets forth the requirements for preliminary expert opinion affidavit disclosures in medical malpractice cases and the procedural framework for dealing with deficient affidavits. Subsection (F) states that “[u]pon any allegation of insufficiency of the affidavit, the court shall allow any party a reasonable time to cure any affidavit, if necessary.” (Emphasis added.)
¶ 18 As explained in Sanchez v. Old Pueblo Anesthesia, P.C., 218 Ariz. 317, 323, ¶ 20, 183 P.3d 1285, 1291 (App.2008),
¶ 19 Similar to the facts in Sanchez, Plaintiffs timely disclosed Dr. Lapan‘s affidavit well within the discovery period. Dr. Amadei did not raise any direct challenge to the sufficiency of the affidavit, even upon conducting Dr. Lapan‘s deposition, and instead filed a motion for summary judgment after the disclosure deadline had expired. Under these circumstances, and consistent with the purpose of
C. Motion in Limine
¶ 20 Plaintiffs argue the trial court erred by granting Dr. Amadei‘s motion in limine to preclude the introduction of evidence or argument that he fell below the standard of care as medical director or breached his contract in fulfilling his role as medical director. We review a court‘s decision on a motion in limine for an abuse of discretion. Warner v. Southwest Desert Images, LLC, 218 Ariz. 121, 133, ¶ 33, 180 P.3d 986, 998 (App.2008).
¶ 21 In his motion, Dr. Amadei asserted that “any duty” imposed by his role as medical director was one created by his employment contract with Kachina and therefore any violation of such a duty would be a breach of contract with Kachina, not a tort against Plaintiffs. Dr. Amadei further argued that no standard of care expert had been disclosed to testify regarding the duties
¶ 22 In their reply brief, Plaintiffs argue they have standing as third-party beneficiaries to raise a claim regarding Dr. Amadei‘s alleged breach of his employment contract with Kachina. Generally, we do not address arguments raised for the first time in a reply brief. Nelson v. Rice, 198 Ariz. 563, 567 n. 3, ¶ 11, 12 P.3d 238, 242 n. 3 (App.2000). Moreover, even applying an expansive reading of Plaintiffs’ complaint, it does not frame a breach of contract claim. Instead, Plaintiffs’ single claim, as alleged in their complaint, is that Dr. Amadei was “negligent in that [he] failed to exercise that degree of care, skill, and learning expected of reasonable and prudent health care providers in the profession ... acting in the same or under similar circumstances.”
¶ 23 The negligence claim asserted in the complaint could allow for expert testimony that the standard of care for Dr. Amadei, as a treating physician, required him to apprise the family of developments and include them in the treatment plan, but it does not encompass a breach of contract claim relating to his role as the medical director. Furthermore, as noted by Dr. Amadei, Plaintiffs have failed to disclose any expert witness to testify regarding the standard of care owed by a person acting as a medical director, distinct from the role of a treating physician. Therefore, the trial court did not abuse its discretion by granting Dr. Amadei‘s motion in limine to exclude evidence that he violated his employment contract with Kachina or fell below the standard of care of a medical director.
D. Sanction for Disclosure Violation
¶ 24 Plaintiffs contend the trial court erred by awarding attorneys’ fees as a sanction based on their “false and misleading” disclosures regarding Dr. Fischione‘s expected trial testimony. Specifically, Plaintiffs argue the court erred “by finding that [Plaintiffs‘] counsel‘s conduct was intentional and that he prepared the ‘misleading’ disclosure with the intent to deceive” and gain “an advantage in the lawsuit.” We will affirm a court‘s ruling on a motion for sanctions absent an abuse of discretion. Taeger v. Catholic Family and Comm‘y Servs., 196 Ariz. 285, 295, ¶ 34, 995 P.2d 721, 731 (App.1999).
¶ 25 Both parties disclosed Dr. Fischione as an expert to testify at trial. On August 24, 2011, Plaintiffs served their initial disclosure statement, which stated, generally, that Dr. Fischione was expected to testify consistent with his autopsy report. Plaintiffs’ attorney met with Dr. Fischione on July 26, 2012 and questioned him regarding his expected trial testimony. Shortly before the October 5, 2012 disclosure deadline, Plaintiffs’ attorney served a supplemental disclosure statement, revising the prior disclosures regarding Dr. Fischione‘s expected testimony, without presenting the prepared disclosures to Dr. Fischione for approval. The supplemental disclosure stated, in relevant part:
Dr. Fischione performed the autopsy on Jean Preston.... In addition to testifying consistent with the autopsy report he prepared, Dr. Fischione will testify as follows.
There is nothing inconsistent in his findings in his report of the autopsy of Jean Preston with the fact that she had had an acute cardiac event which consisted of ischemia the day before she died. Her symptoms of 10/10 chest pain and numbness were indicative of the development of arrhythmias and that, in the end, is what she died from.... She died because her heart developed arrhythmias. She had a physiological mechanism (arrhythmias) which caused her death. She did not die from congestive heart failure. Her cause of death was arrhythmias.
Dr. Fischione will also testify that there is nothing inconsistent in his report which would contradict the fact had Jean Preston been taken to the emergency room when
she displayed cardiac symptoms, or shortly thereafter, she would have survived. (Emphasis added.)
¶ 26 Although counsel for Plaintiffs stated he mailed a letter and a copy of the disclosure to Dr. Fischione on October 10, 2012, at his subsequent deposition, Dr. Fischione stated he never received the mailing. Dr. Fischione addressed Plaintiff‘s supplemental disclosure as follows: “I don‘t know where this came from ... why would I say on the death certificate, as well as on my autopsy report, that she died of congestive heart failure, and then put she did not die from congestive heart failure. And besides that, her cause of death was an arrhythmia. That‘s not a cause of death, that‘s a mechanism of death.” Dr. Fischione further testified that Ms. Preston‘s heart problems “relate[d] to an arrhythmia, not ischemia, but an arrhythmia ... we‘ve already established that there‘s no ischemia here ... there‘s no evidence of acute ischemia[.]”
¶ 27 After conducting Dr. Fischione‘s deposition, Dr. Amadei filed a motion for sanctions, asserting Plaintiffs’ “false and misleading disclosure regarding Dr. Fischione‘s purported opinion necessitated” an additional disclosure from Dr. Amadei. In addition, Dr. Amadei argued he was compelled to conduct additional research on the governing statutes, regulations, and Medical Examiner‘s Handbook protocols that would need to be followed should a medical examiner opine contrary to the official autopsy report and death certificate.
¶ 28
A party or attorney who makes a disclosure pursuant to Rule 26.1 that the party or attorney knew or should have known was inaccurate or incomplete and thereby causes an opposing party to engage in investigation or discovery, shall be ordered by the court to reimburse the opposing party for the cost, including attorney‘s fees of such investigation or discovery. In addition to or in lieu of these sanctions, the court on motion of a party or on the court‘s own motion, and after affording an opportunity to be heard, may impose other appropriate sanctions.
¶ 29 After oral argument on the motion for sanctions, the trial court found Plaintiffs “should have known” their supplemental disclosure, which was inconsistent with the death certificate and official autopsy report, was “false and misleading.” The court also found that the false disclosure “caused [Dr. Amadei] to engage in additional investigation and discovery.” Contrary to Plaintiffs’ representations on appeal, the court specifically found it was “unable to conclude [Plaintiffs] knew the disclosure was false and misleading.” Instead, the court found they “should have known,” explaining they “were under a duty to ensure the disclosure was accurate before disseminating the information, rather than after the fact.” The record supports the court‘s findings and thus the court did not abuse its discretion in ordering payment of attorneys’ fees as a sanction.
E. Denial of Motion for Summary Judgment on Alternative Grounds
¶ 30 On cross-appeal, Dr. Amadei argues the trial court erred by denying his motion for summary judgment on the alternative basis that Plaintiffs’ causation theory was too speculative and wholly reliant on expert testimony that was inadmissible pursuant to
¶ 31 First, Dr. Amadei contends Plaintiffs’ causation theory is based on the unsupported speculation that, had Kachina staff fully and properly apprised Blair Preston of his mother‘s condition, he would have gone to Kachina and convinced Ms. Preston “to go to the emergency room.” In support of his motion for summary judgment, Dr. Amadei presented evidence that Ms. Preston was resistant to medical treatment and repeatedly failed to follow the advice of her physicians, and argued she therefore would have refused to be transported to the hospital
¶ 32 Dr. Amadei‘s remaining challenges are governed by
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.
¶ 33 Aside from his
¶ 34
¶ 35 In interpreting the federal rule, the United States Supreme Court explained that
¶ 36 Accordingly, when applying
¶ 37 Given these principles,
CONCLUSION
¶ 38 We affirm the trial court‘s rulings disqualifying Dr. Lapan as a standard of care expert witness, granting Dr. Amadei‘s motion in limine, imposing sanctions for the disclosure violation, and denying Dr. Amadei‘s motion for summary judgment on the alternative basis that Plaintiffs’ causation theory was too speculative and their expert‘s proffered testimony failed to satisfy