IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO
VIRGINIA LYNN HENRY, on behalf of ) the Estate of KATHLEEN S. WILSON, ) deceased, ) ) Plaintiff/Appellee, ) ) 2 CA-CV 2000-0136 v. ) DEPARTMENT A ) HEALTHPARTNERS OF SOUTHERN ) OPINION ARIZONA, dba TUCSON MEDICAL ) CENTER, ) ) Defendant/Appellant. ) )
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. C-324589
Honorable Nanette M. Warner, Judge
AFFIRMED
Law Offices of Ronald D. Mercaldo, Ltd. By Ronald D. Mercaldo Tucson Attorneys for Plaintiff/Appellee
Smith Law Group By Christopher J. Smith and Roger W. Perry Tucson Attorneys for Defendant/Appellant
F L Ó R E Z, Judge. ¶1 Virginia Henry filed this medical malpractice action as personal representative of
the estate of her aunt, Kathleen Wilson. All defendants except appellant HealthPartners of
Arizona, doing business as Tucson Medical Center (TMC), settled the case before trial. A jury
rendered a verdict in favor of TMC, and the trial court later granted Henry’s motion for a new
trial. TMC challenges that ruling on appeal. For the reasons set forth below and in a separate
memorandum decision that addresses other issues not worthy of publication, see Rule 28(g), Ariz.
R. Civ. App. P., 17B A.R.S., we affirm.
BACKGROUND
¶2 In July 1995, Wilson was examined by her gynecologist, Dr. Jon Long, at his
office. Nothing in the medical record on that date shows that Wilson reported any lumps in her
breast or that Long had detected any lumps while conducting a breast examination. In August
1995, Wilson had a routine screening mammogram at TMC. A screening mammogram requires
a technician to x-ray each breast twice from different angles; this method is used when the person
has reported no breast problems. If the screening mammogram reveals problems or if the person
reports problems, a diagnostic mammogram is used. A diagnostic mammogram requires x-rays
with other views of the breast, including magnification as needed. To complete a diagnostic
mammogram, a radiologist examines all x-rays taken in both mammograms.
¶3 A TMC volunteer who conducted the intake interview for Wilson’s screening
mammogram wrote on the mammography information sheet, “*lump—x6 weeks.” That sheet was
placed in Wilson’s medical chart. The mammography technologist also wrote, “‘Dr. Long thinks
it’s fibrous tissue’, patient states,” on Wilson’s clinical history form. The screening mammogram
x-rays, the results of Wilson’s 1992 mammogram, the clinical history form, and the medical chart
2 were placed near the diagnostic x-rays for Dr. Donald Mar to read. He was employed by
Radiology Limited, with whom TMC had contracted to provide radiology services. When Mar
read Wilson’s screening x-rays, he noted: “Normal mammogram, except for moderate to severe
increased density. No evidence of cancer. It should be appreciated that a negative mammogram
should not supersede clinical concern if present. No significant change from 12/11/92.” He did
not read the mammography technologist’s note or the information sheet in Wilson’s clinical history
record. On the patient notification form, Mar wrote, “No mammographic evidence of cancer.”
TMC sent Wilson a letter stating her mammogram result was normal.
¶4 During the next ten months, Wilson continued to see Long, but the medical records
do not mention breast lumps or problems. Then, in May 1996, Wilson told Long that she had had
a sore, tender lump in her breast for about a month. On a referral from Long, TMC did a
diagnostic mammogram, which revealed that Wilson had breast cancer. The next day, Wilson
underwent a mastectomy, which was followed by chemotherapy treatment. The cancer
metastasized, however, before the full course of chemotherapy could be completed. Wilson died
in April 1997. Henry then brought this action.
¶5 Henry settled with Mar and Long immediately before trial. On the first day of trial,
TMC mentioned in its mini-opening statement to the potential jurors that “[Henry had] originally
sued [Long and Mar]. You do not see them in the courtroom today.” Henry immediately moved
for a mistrial on the ground TMC was “talk[ing] about prior settlements.” The trial court granted
the motion for mistrial and issued what it characterized as the “rule in the case”:
Okay, rule in the case: No mentioning settlements, who were previously parties in the case. You can in your mini-opening, opening and closing say, the[y] are the really bad guys. That’s who
3 you should find to be responsible on the verdict forms. You put zero by TMC, you put 50/50, whatever you want, in those other things. Okay.
After some discussion about the ambit of the rule in the case, the trial court summoned a new
panel of prospective jurors and began the trial again. Based on our review of the record, we
conclude the parties understood the “rule in the case” to be that they were not to mention prior
settlements to the jury or to identify former parties as such.
READING OF ALLEGATIONS IN COMPLAINT
¶6 TMC asked the trial court for permission to read to the jury Henry’s allegations in
her complaint that Mar had been negligent in causing Wilson’s death. Henry had alleged that Mar
had been negligent in failing to “order the appropriate diagnostic studies,” to “appropriately
evaluate Ms. Wilson’s complaints,” and “to diagnose Ms. Wilson’s breast cancer.” Although the
court initially denied the motion, near the end of Henry’s case-in-chief, the trial court announced
to the parties that it planned to grant TMC’s request and read the allegations because it agreed with
TMC that Henry’s allegations were “admission[s].” After all the evidence was presented and
immediately before TMC rested its case, the trial court read the aforementioned allegations.
¶7 Relying on Egurrola v. Szychowski, 95 Ariz. 194, 388 P.2d 242 (1964), and Dunn
v. Maras, 182 Ariz. 412, 897 P.2d 714 (App. 1995), Henry argues that, practically speaking, by
reading the complaint in which she had asserted that Mar had been negligent, the trial court
improperly told the jury she had settled her claims against Mar. TMC counters that the allegations
in Henry’s complaint were admissions of a party opponent under Rule 801(d)(2), Ariz. R. Evid.,
17A A.R.S., and that the trial court properly read the allegations to the jury. Rule 801(d)(2) states
in pertinent part as follows:
4 (d) Statements which are not hearsay. A statement is not hearsay if—
....
(2) Admission by party-opponent. The statement is offered against a party and is . . . (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment.
To obtain admission of a statement under Rule 801(d)(2)(D), its proponent “must show only that
the statement: (1) was made by the opposing party’s agent or servant, (2) was made during the
existence of the relationship, and (3) concerned a matter within the scope of the agency or
employment.” Shuck v. Texaco Ref. & Mktg., Inc., 178 Ariz. 295, 298, 872 P.2d 1247, 1250
(App. 1994). For example, the opening statement of plaintiff’s counsel in Copeland v. City of
Yuma, 160 Ariz. 307, 772 P.2d 1160 (App. 1989), was found to have met the requirements of
Rule 801(d)(2)(D). Similarly, concessions by a party’s attorney during oral argument to a trial
court may be considered statements adverse to the party. Ulibarri v. Gerstenberger, 178 Ariz.
151, 871 P.2d 698 (App. 1993). And a declarant need not “have personal knowledge of the
matter asserted in the statement” for it to be admissible. Shuck, 178 Ariz. at 299, 872 P.2d at
1251. Such evidence may emanate from the pleadings of a party, whether signed by the client or
the attorney. Buehman v. Smelker, 50 Ariz. 18, 68 P.2d 946 (1937). And, finally, in Reed v.
Hinderland, 135 Ariz. 213, 216, 660 P.2d 464, 467 (1983), the court held that a letter by
plaintiff’s counsel stating that plaintiff’s son had caused the accident was “properly admitted for
5 the legitimate purpose of attacking the credibility of [plaintiff’s] testimony as to the cause of the
accident.”
¶8 Contrary to Henry’s argument, State v. Fulminante, 193 Ariz. 485, 975 P.2d 75
(1999), did not nullify the holding in Reed. Fulminante is simply inapposite here. As TMC points
out, the prosecutor’s statements in the first trial in Fulminante were held not to be admissible at
retrial because additional factual evidence was available at the time of retrial. Here, Henry’s
allegations reflected her view of Mar’s negligence. We have found no Arizona case undermining
Reed.
¶9 We conclude, then, that Henry’s factual allegations in her complaint supporting her
claim that Mar had been negligent are evidentiary admissions, albeit that they are disputed and are
not, in and of themselves, conclusive evidence of Mar’s fault. See Starkovich v. Noye, 111 Ariz.
347, 529 P.2d 698 (1974) (when proper foundation established, statement in complaint is
admission against interest); Joseph M. Livermore et al., Law of Evidence § 801.5 (4th ed. 2000)
(discussing admissibility under Rule 801(d)(2)(D)); see also Bank of America Nat’l Trust & Sav.
Ass’n v. Maricopa County, 196 Ariz. 173, 993 P.2d 1137 (App. 1999) (bank’s pleadings and
admission in tax court were evidentiary admissions even though not judicial admissions). “The
time has passed when allegations in a pleading will be treated as mere fictions, rather than ‘as
statements of the real issues in the cause and hence as admissions of the parties.’” Dreier v.
Upjohn Co., 492 A.2d 164, 168 (Conn. 1985), quoting 2 Jones, Evidence 693 (5th ed.). Cf.
Dugan v. EMS Helicopters, Inc., 915 F.2d 1428 (10th Cir. 1990) (inconsistent allegations in prior
pleadings admissible); Redwing Carriers, Inc. v. Stone, 310 So. 2d 206 (Ala. 1975) (reversible
error not to admit into evidence party’s previous complaint against third party whom plaintiff
6 alleged had been responsible for its injuries); State Farm Mut. Auto. Ins. Co. v. Shuman, 370
N.E.2d 941 (Ind. Ct. App. 1977); McWilliams v. Szymanski, 792 P.2d 457 (Or. Ct. App. 1990);
but see Lytle v. Stearns, 830 P.2d 1197 (Kan. 1992) (acknowledging split of authority in
comparative negligence cases on admissibility of pleadings alleging negligence against defendants
who have been dismissed and finding error in admitting statements in prior pleading). Because
Henry’s agent made the allegations during the time he represented her in the lawsuit against Mar,
the allegations were admissible under Rule 801(d)(2)(D). See Shuck.
¶10 Henry’s factual allegations against Mar were also admissible because they were
relevant nonhearsay. Hearsay is “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
Ariz. R. Evid. 801(c). TMC did not offer Henry’s complaint allegations for their truth—that Mar
had indeed been negligent. Instead, TMC offered them to discredit Henry’s claim at trial that
Mar’s negligence had been, at most, minimal. Because we have determined that Henry’s
complaint allegations were admissible under Rule 801(d)(2)(D) as nonhearsay, we need not
consider whether they were also admissible under Rule 801(d)(2)(B) and (C).
¶11 After the trial court read Henry’s allegations about Mar’s negligence to the jury,
TMC used the allegations to discredit the theory of the case that Henry had presented throughout
trial, namely, that Mar had been, at most, minimally negligent in failing to review Wilson’s
medical record, including the clinical history TMC’s mammography technologist had prepared.
Because TMC had named Mar as a nonparty at fault, it was entitled to offer Henry’s own words
in her complaint to essentially impeach her claim at trial that Mar had been, at most, minimally
negligent. To rule otherwise would allow Henry to have her proverbial cake and eat it too—that
7 is, she would be permitted to reap the benefits of her allegations of negligence against Mar on the
one hand, yet minimize his fault in a trial against the only remaining defendant and place all blame
on TMC for Wilson’s death.
¶12 We also reject Henry’s claim, based on Egurrola and Dunn, that, by reading the
allegations to the jury, the trial court improperly informed it of Henry’s settlement with Mar. In
Egurrola, plaintiff had sued the driver of the car in which she had been a passenger for the injuries
she had suffered in an accident involving another vehicle. Pursuant to the parties’ stipulation,
plaintiff introduced into evidence a covenant in which she had agreed not to sue the driver of the
other car in exchange for $10,000. She then sought unsuccessfully to introduce a separate letter
from that driver’s attorney stating the coverage limit on the driver’s automobile liability policy was
$10,000, fearing that introduction of only the covenant, “unexplained by [the] letter, would imply
some ill-defined or well-concealed defect in the plaintiffs’ case on the question of liability.”
Egurrola, 95 Ariz. at 198, 388 P.2d at 244. The supreme court noted that the plaintiff’s
predicament had arisen from her introduction into evidence of the covenant, which was not
otherwise admissible. It was inadmissible, the court ruled, based on the principle of joint
tortfeasor liability.1 The court explained that the proper method of accounting for settlement
proceeds is to subtract them from the total damages awarded by the jury. Thus, nothing in
Egurrola renders inadmissible Henry’s allegations in her complaint about Mar’s negligence.
¶13 Dunn is similarly inapplicable. It involved a juror’s improper communication of
extraneous information to other jurors that the plaintiff had settled his case against a former
1 Egurrola was decided long before comparative fault was the law in Arizona. See A.R.S. § 12-2505; 1984 Ariz. Sess. Laws, ch. 237, § 7.
8 defendant. Division One of this court ruled that the “reasonable possibility standard” for
evaluating a claim that a jury purportedly has received extraneous information applies in both civil
and criminal cases, concluding that the trial court had erred in evaluating the jurors’ affidavits for
potential prejudice. 182 Ariz. at 421, 897 P.2d at 723. In Dunn, the focus was the extraneous
information one juror had provided the others, not the fact of settlement. Thus, neither Egurrola
nor Dunn resolves the question before us.
¶14 Rule 408, Ariz. R. Evid., permits admission of the fact of settlement in certain
circumstances. It states, in relevant part: “This rule also does not require exclusion when the
evidence is offered for another purpose, such as proving bias or prejudice of a witness.” In this
case, Henry’s trial strategy was to create a bias in favor of Mar and against TMC. The fact that
Henry had settled her case against Mar provided an explanation for his absence at trial, causing
TMC then to assert he was a nonparty at fault because of his failure to read the clinical history
notes. Thus, the allegations of Henry’s complaint were evidence of her “knowledge and state of
mind with respect to the merits of the wrongful death action filed against [TMC].” Bradshaw v.
State Farm Mut. Auto. Ins. Co., 157 Ariz. 411, 420, 758 P.2d 1313, 1322 (1988). The
complaint’s allegations do not fall within Rule 408’s purview because they were not made in
compromise of a disputed claim. In any event, litigants must be held “accountable for setting forth
one version of the facts to obtain a settlement and describing another version at trial.” Hernandez
v. State, No. CV-01-0437-PR, ¶14, 2002 WL 1969884, ¶14 (Ariz. Aug. 26, 2002). Rule 408 did
not preclude TMC’s use of the allegations in Henry’s complaint to undermine her trial strategy.
¶15 Henry next argues that these allegations were inadmissible because they were
irrelevant and unfairly prejudicial. Only relevant evidence is admissible at trial. Ariz. R. Evid.
9 402. Relevant evidence is “evidence having any tendency to make the existence of any fact that
is of consequence to the determination of the action more probable or less probable than it would
be without the evidence.” Ariz. R. Evid. 401. Because Henry’s trial strategy was to minimize
Mar’s fault to defeat TMC’s assertion that he had been at fault, Henry’s allegations delineating
Mar’s negligence were clearly relevant in undercutting that strategy. See Dreier, 492 A.2d at 168
(“Given that the statements [in the plaintiff’s original complaint] have some probative value, we
believe that the circumstances under which they are made, as with any other ‘admission,’ go to
the weight to be accorded the statements rather than their admissibility.”); McWilliams.
GRANT OF MOTION FOR NEW TRIAL
¶16 Following the unanimous jury verdict in favor of TMC, Henry moved for a new
trial on the ground that the trial court’s reading of the allegations in her complaint had been
improper. The trial court granted the motion, explaining in a detailed minute entry that its initial
decision to read to the jury the allegations in Henry’s complaint had been based on its conclusion
that the allegations were judicial admissions under Brenteson Wholesale, Inc. v. Arizona Public
Service Co., 166 Ariz. 519, 803 P.2d 930 (App. 1990). But the court subsequently concluded that
the allegations were not judicial admissions and that its reading them had invited the jury to
conclude that Henry and Mar had reached a settlement, contrary to the law in this state that
information about settlements be kept from juries. See Ariz. R. Evid. 408. The court also ruled
that reading the allegations was more prejudicial than probative under Rule 403, Ariz. R. Evid.
Absent a clear abuse of discretion, we will not disturb a trial court’s grant of a motion for new
trial, particularly when based on the admission or exclusion of evidence. Gordon v. Liguori, 182
10 Ariz. 232, 895 P.2d 523 (App. 1995); see also Koepnick v. Sears Roebuck & Co., 158 Ariz. 322,
762 P.2d 609 (App. 1988).
¶17 Henry asserts she was prejudiced by the timing of the trial court’s decision to read
the allegations in the complaint to the jury. Henry notes that, before empaneling the jury, the trial
court had stated the parties could not mention any settlements with nonparties or identify those
“who were previously parties in the case,” but they were not precluded from mentioning in their
mini-opening statements, opening statements, and closing arguments that others had been the
“really bad guys. That’s who you should find to be responsible on the verdict forms.” Henry
contends that changing this “rule in the case” near the end of her case-in-chief gave TMC a basis
for arguing that she had been “dishonest with the jury.” TMC responds that Henry had painted
herself into a corner by taking the position at trial that Mar had not been at fault and claiming “that
TMC was trying to avoid responsibility by trying to blame Dr. Mar.” In its minute entry granting
Henry’s motion for new trial, the trial court stated:
While the jury was not advised that there was a settlement between [Henry] and Dr. Mar, [Henry’s] expert stated that Dr. Mar was negligent. It would not be a giant leap for the jury to infer that because Dr. Mar was sued by [Henry], [and Henry’s] expert stated that Dr. Mar was negligent, . . . there had been a settlement between [Henry] and Dr. Mar for some undisclosed amount. This alone has a prejudicial effect. Thus,
THE COURT FINDS THAT the fact that Dr. Mar had been a party defendant is not relevant to [Henry’s] claims against T.M.C.
The trial court’s finding of nonrelevance, however, ignores a defendant’s right to place blame on
a nonparty, see A.R.S. § 12-2506, and, as noted in paragraph 15 above, overlooks the probative
value of the factual allegations against Mar in Henry’s complaint. TMC, then, was permitted to
11 name Mar as a nonparty at fault and to argue that he had been negligent and that Henry had so
alleged in her complaint.
¶18 Still, we must review the trial court’s conclusions in granting a new trial that
reading Henry’s allegations of negligence against Mar had unfairly prejudiced Henry and that the
unfair prejudice substantially outweighed any probative value under Rule 403. As TMC notes,
an admission by a party opponent is, by its very nature, prejudicial to the party against whom it
is admitted. “Relevant evidence generally will adversely affect the party against whom it is
offered, but that is not the type of prejudice of which Rule 403 speaks.” Yauch v. Southern Pac.
Transp. Co., 198 Ariz. 394, ¶28, 10 P.3d 1181, ¶28 (App. 2000). But relevant evidence is
inadmissible under Rule 403 if it “has an undue tendency to suggest decision on an improper basis,
such as emotion, sympathy, or horror.” State v. Mott, 187 Ariz. 536, 545, 931 P.2d 1046, 1055
(1997). Although Henry was undoubtedly prejudiced by the trial court’s reading of the
allegations, we cannot say that the jury was encouraged by that reading to decide the case on the
basis of emotion, sympathy, or horror. Under the unique circumstances of this case, we conclude
the trial court did not err in reading the allegations of the complaint to the jury.
¶19 Even so, for the reasons stated below, we conclude that the trial court did not abuse
its discretion in granting a new trial. See Gordon; Linder v. Brown & Herrick, 189 Ariz. 398, 943
P.2d 758 (App. 1997) (appellate court may affirm for reasons other than those relied upon by trial
court). We base this conclusion on Rule 59(a), Ariz. R. Civ. P., 16 A.R.S., Pt. 2, which states:
A verdict, decision or judgment may be vacated and a new trial granted on motion of the aggrieved party for any of the following causes materially affecting that party’s rights:
12 1. Irregularity in the proceedings of the court, referee, jury or prevailing party, or any order or abuse of discretion, whereby the moving party was deprived of a fair trial.
6. Error in the admission or rejection of evidence, error in the charge to the jury, or in refusing instructions requested, or other errors of law occurring at the trial or during the progress of the action.
¶20 The trial court’s “rule in the case” set out a framework for the trial, and the parties
made strategic decisions accordingly. Having been told there would be no mention of settlement
or identification of nonparties as previous parties to the case, Henry adopted a strategy that
minimized Mar’s culpability. Only after she had presented such a case did the trial court,
persuaded by TMC that the complaint’s allegations were admissible, reverse itself. As the trial
court recognized in its order granting Henry’s motion for new trial, the timing of its reading of
the allegations unfairly prejudiced Henry. Thus, there was, essentially, an “[e]rror in the
admission or rejection of evidence” that resulted from the timing of the admission of the evidence.
Ariz. R. Civ. P. 59(a)(6). Therefore, we cannot say that the trial court abused its discretion in
granting Henry a new trial.2
DISPOSITION
¶21 Accordingly, we affirm the trial court’s grant of Henry’s motion for new trial.
______________________________________
2 We do not address the trial court’s reference to Rule 59(a)(7), Ariz. R. Civ. P., 16 A.R.S., Pt. 2, because it appears to be superfluous to the court’s decision. TMC so asserts in its opening brief, an assertion to which Henry did not respond. Thus, we deem the issue conceded. See In re 1996 Nissan Sentra, 201 Ariz. 114, 32 P.3d 39 (App. 2001).
13 M. JAN FLÓREZ, Judge
CONCURRING:
________________________________________ J. WILLIAM BRAMMER, JR., Presiding Judge
________________________________________ JOHN PELANDER, Judge