SOLIMENO v. Yonan

227 P.3d 481, 224 Ariz. 74, 578 Ariz. Adv. Rep. 32, 2010 Ariz. App. LEXIS 35
CourtCourt of Appeals of Arizona
DecidedMarch 18, 2010
Docket1 CA-CV 09-0139
StatusPublished
Cited by47 cases

This text of 227 P.3d 481 (SOLIMENO v. Yonan) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
SOLIMENO v. Yonan, 227 P.3d 481, 224 Ariz. 74, 578 Ariz. Adv. Rep. 32, 2010 Ariz. App. LEXIS 35 (Ark. Ct. App. 2010).

Opinions

OPINION

DOWNIE, Judge.

¶ 1 Abdullah M. Yonan, M.D., Nawal P. Yonan, and Phoenix Medical Group, P.C. (“defendants”) challenge the superior court’s order that they pay attorneys’ fees and costs as a sanction for a mistrial declared after the court found they violated pretrial disclosure requirements. We affirm and hold that a medical malpractice defendant who also testifies as a standard of care expert is subject to expert disclosure requirements regarding that issue. We also hold that a party who causes a mistrial may, under appropriate circumstances, be assessed monetary sanctions under Arizona Revised Statutes (“A.R.S.”) section 12-349(A)(3) (2003).

FACTS AND PROCEDURAL HISTORY

¶ 2 Doreen Pullin was admitted to the intensive care unit (“ICU”) of a local hospital with breathing difficulties. Tests revealed she had “extensive bilateral pulmonary emboli” or blood clots in both lungs.1 Dr. Yonan, a pulmonologist, managed Ms. Pullin’s care in the ICU. The day after she was admitted, Ms. Pullin suffered cardiac arrest and died as a result of the blood clots.

¶ 3 Plaintiffs filed a medical negligence/wrongful death action against defendants.2 The primary contested issue was whether Dr. Yonan fell below the standard of care by using heparin to prevent further propagation of the clots rather than prescribing thrombolytic drugs (“thrombolytics”) to dissolve Ms. Pullin’s blood clots.

¶ 4 A jury trial began May 27, 2008. During plaintiffs’ case in chief, defendants made numerous objections on the grounds of nondisclosure. On those occasions, the trial court asked plaintiffs’ attorney whether and how disclosure had been made. It sustained objections when counsel could not establish proper pretrial disclosure.

¶ 5 On the fifth day of trial, plaintiffs rested. Defendants began their ease in chief by [77]*77calling Dr. Yonan to the stand. Dr. Yonan testified about the physiology of shock, interpreted Ms. Pullin’s test results, and explained his experience with and professional opinions regarding treating blood clots with thrombolyties. Believing Dr. Yonan’s opinion testimony had not been properly disclosed, plaintiffs objected and, outside the jury’s presence, moved for a mistrial. The trial court found a disclosure violation about key disputed issues and declared a mistrial.

¶ 6 Plaintiffs filed a motion for sanctions, seeking attorneys’ fees and costs under Arizona Rule of Civil Procedure (“Rule”) 37(c) and A.R.S. § 12-349(A)(3). After briefing and argument, the trial court awarded plaintiffs $125,000 pursuant to AR.S. § 12-349(A)(3) because defendants’ failure to disclose “both expanded and delayed the proceedings.”

¶ 7 Defendants timely appealed. We have jurisdiction pursuant to A.R.S. § 12-2101(B), (D) (2003).

DISCUSSION

¶ 8 Defendants assert three errors on appeal: (1) the determination they violated pretrial disclosure requirements; (2) the imposition of sanctions under A.R.S. § 12-349; and (3) the amount of the sanctions award.

1. Disclosure Issues

¶ 9 Whether a disclosure obligation exists in the first instance is a question of law that we review de novo. Assuming such an obligation exists, a trial court has broad discretion in determining whether evidence has been properly disclosed and whether it should be admitted at trial. See Link v. Pima County, 193 Ariz. 336, 338, ¶3, 972 P.2d 669, 671 (App.1998). Trial judges are better able than appellate courts to decide if a disclosure violation has occurred in the context of a given case and the practical effect of any non-disclosure. Such decisions will not be disturbed on appeal absent an abuse of discretion. Id. See also Allstate Ins. Co. v. O’Toole, 182 Ariz. 284, 287, 896 P.2d 254, 257 (1995) (“We have encouraged trial courts to take firm, active roles in the application and enforcement of [the disclosure] rules that were specifically designed to curb discovery abuse, excessive cost, and delay. We have pledged to support them if they do.”).

a. Dr. Yonan was testifying as an expert

¶ 10 We disagree with defendants’ assertion that Dr. Yonan was not testifying as an expert witness and that the general disclosures they made about him prior to trial were sufficient. In their initial disclosure statement, defendants revealed Dr. Yonan would “testify that his treatment of Doreen Pullin complied with the applicable standard of care in all respects.” Defendants made this disclosure under a heading that read:

NAME AND ADDRESS OF EACH PERSON WHOM THE DISCLOSING PARTY EXPECTS TO CALL AS AN EXPERT WITNESS AT TRIAL, THE SUBJECT MATTER ON WHICH THE EXPERT IS EXPECTED TO TESTIFY, THE SUBSTANCE OF THE FACTS AND OPINIONS TO WHICH THE EXPERT IS EXPECTED TO TESTIFY, A SUMMARY OF THE GROUNDS FOR EACH OPINION, THE QUALIFICATIONS OF THE WITNESS, AND THE NAME AND ADDRESS OF THE CUSTODIAN OF COPIES OF ANY REPORTS PREPARED BY THE EXPERT.

(Original emphasis.)

¶ 11 In medical malpractice cases, a defendant physician may testify regarding his or her adherence to the standard of care in addition to calling an independent standard of care expert witness. Rule 26(b)(4)(D), dealing with expert witnesses, states, in pertinent part:

In medical malpractice cases, each party shall presumptively be entitled to only one standard-of-care expert. A defendant may testify cm the issue of that defendant’s standard-of-care in addition to that defendant’s independent expert witness and the court shall not be required to allow the plaintiff an additional expert witness on the issue of the standard-of-care.

(Emphasis added.)

¶ 12 The challenged trial testimony related to the standard of care. Dr. Yonan’s defense [78]*78was that he complied with the standard of care by prescribing heparin for Ms. Pullin (which his counsel described as “the gold standard treatment”) versus thrombolytic drugs, which carry “significant risk” and are indicated only if a patient is in shock. The testimony at issue was clearly intended to inform the jury that, in Dr. Yonan’s opinion, the' patient was not in shock, and thus his course of treatment complied with the standard of care.

b. Disclosures of Dr. Yonan’s opinions were inadequate

¶ 13 Arizona’s rules of civil procedure mandate extensive pretrial disclosures regarding expert witnesses, requiring disclosure of:

The name and address of each person whom the disclosing party expects to call as an expert witness at trial, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, a summary of the grounds for each opinion, the qualifications of the witness and the name and address of the custodian of copies of any reports prepared by the expert.

Rule 26.1(a)(6) (emphasis added).

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Cite This Page — Counsel Stack

Bluebook (online)
227 P.3d 481, 224 Ariz. 74, 578 Ariz. Adv. Rep. 32, 2010 Ariz. App. LEXIS 35, Counsel Stack Legal Research, https://law.counselstack.com/opinion/solimeno-v-yonan-arizctapp-2010.