Opinion
No. 1 CA-CV 14-0290
12-22-2015
JOHN L. BEDWAY, a married man, Plaintiff/Appellant, v. RONNEY FERGUSON, M.D.; RONNEY L. FERGUSON, M.D., P.C., Defendan ts/Appellees.
COUNSEL Lloyd Law Group, P.L.L.C., Payson By Arthur E. Lloyd Counsel for Plaintiff/Appellant Jones, Skelton & Hochuli, P.L.C., Phoenix By J. Russell Skelton, Eileen Dennis GilBride Counsel for Defendant/Appellee
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Navajo County
No. S0900CV201200354
The Honorable Michala M. Ruechel, Judge
AFFIRMED
COUNSEL Lloyd Law Group, P.L.L.C., Payson
By Arthur E. Lloyd
Counsel for Plaintiff/Appellant Jones, Skelton & Hochuli, P.L.C., Phoenix
By J. Russell Skelton, Eileen Dennis GilBride
Counsel for Defendant/Appellee
MEMORANDUM DECISION
Judge John C. Gemmill delivered the decision of the Court, in which Presiding Judge Maurice Portley and Chief Judge Michael J. Brown joined. GEMMILL, Judge:
¶1 A jury issued a verdict in favor of defendants Ronney L. Ferguson, M.D., and his professional corporation. On appeal, plaintiff John Bedway argues the court abused its discretion by refusing to strike three jurors for cause and not permitting his standard of care expert to testify about the interpretation of the MRI films. He also argues this court should grant him a new trial because of statements made by defense counsel during closing arguments that were not based on evidence. For the following reasons, we affirm.
BACKGROUND
¶2 Bedway sought medical treatment on January 21, 2011 for an injury to his right distal biceps tendon after slipping on ice. Dr. Ferguson, a general orthopedic surgeon, examined Bedway and testified he was able to palpate the tendon. Because he could palpate the biceps tendon, Dr. Ferguson did not believe there was a complete rupture of the tendon. The doctor scheduled Bedway for an MRI, and Bedway went for the procedure. The radiologist interpreted the films and reported that
"Palpate" means "to examine by the hand; to feel." Dorland's Illustrated Medical Dictionary 1386 (31st ed. 2007).
[o]n this exam, this patient has definite rupture involving the distal biceps tendon. It is an incomplete rupture, and the tendon is quite circuitous in route. Significant fluid is seen adjacent to it.
Radial and lateral collateral ligaments are intact. No other abnormality present.
¶3 Bedway returned to Dr. Ferguson's office on February 7, 2011, and was seen by Shane Walker, Dr. Ferguson's physician assistant. Prior to the visit, Walker reviewed the MRI report, and then in the hallway, he and Dr. Ferguson discussed the report, the diagnosis, and the treatment plan. Walker then met with and examined Bedway, noted he was able to palpate the tendon, and recorded that Bedway said his pain was decreasing. In Bedway's medical record under Diagnostics, Walker wrote "MRI of his right elbow shows a partial tear of his distal biceps tendon," and under Impression wrote, "Right partial distal biceps tendon rupture." Walker noted physical therapy was offered as the treatment plan, but that Bedway indicated he could do it on his own. Walker instructed Bedway on non- resistive range of motion exercises and told him to return in four weeks. Dr. Ferguson subsequently reviewed the report and signed it.
¶4 Bedway did not return to Dr. Ferguson's office. Eight months after his injury, he went to another doctor, discovered the distal biceps tendon was completely torn, and was advised that surgery to repair the tendon after the passage of time carried numerous risks.
¶5 Bedway filed suit against Dr. Ferguson for medical malpractice and a jury trial was held in December 2013, resulting in a defense verdict. After the verdict, Bedway unsuccessfully moved for a new trial. A final judgment was entered and Bedway timely appeals. This court has jurisdiction under Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) and -2101(A)(1).
DISCUSSION
¶6 Bedway argues he is entitled to a new trial for three reasons. First, he argues the court erred when it denied his request that four jurors be struck for cause. Second, he contends that the court committed legal error when it precluded his expert medical witness from testifying about his interpretation of the MRI films. Finally, he asserts that statements made by Dr. Ferguson's counsel during closing arguments were prejudicial and constituted reversible error.
¶7 This court reviews the trial court's decision to deny a new trial for abuse of discretion and it is Bedway's burden to establish such an abuse. See Sandretto v. Payson Healthcare Mgmt., Inc., 234 Ariz. 351, 355, ¶ 8 (App. 2014). "[A] court abuses its discretion when it commits an error of law in reaching its decision or the record fails to provide 'substantial support' for the decision." American Family Mut. Ins. Co. v. Grant, 222 Ariz. 507, 511, ¶ 11 (App. 2009) (citation omitted).
I. Selection of Turors
¶8 Bedway argues that he was unduly prejudiced when the court denied his request to strike for cause certain jurors who were familiar with Dr. Ferguson. He maintains that he was prejudiced by the jurors' participation in the case and that the jurors had an interest in the outcome because several of them had family members who had been patients of Dr. Ferguson.
¶9 "Removing a juror for cause is within the trial court's discretion, and this court will not reverse absent an abuse of discretion." Lopez v. Farmers Ins. Co. of Ariz., 177 Ariz. 371, 374 (App. 1993). According to A.R.S. § 21-211:
The following persons shall be disqualified to serve as jurors in any particular action:(Emphasis added.)
1. Witnesses in the action.
2. Persons interested directly or indirectly in the matter under investigation.
3. Persons related by consanguinity or affinity within the fourth degree to either of the parties to the action or proceedings.
4. Persons biased or prejudiced in favor of or against either of the parties.
¶10 The phrase "interested directly or indirectly" is not defined by the rule, but we may draw guidance from past cases. See State v. Eddington, 228 Ariz. 361, 363, ¶ 10 (2011). In Lopez, jurors who were insured by the insurance company that was a party in the case were deemed interested persons because of the possibility that they might improperly consider whether the outcome of the case could affect their insurance premiums. 177 Ariz. at 374. Similarly, "every stockholder of a private corporation, or a corporation exercising the functions defendant exercises, is interested in the event of a suit brought against his company." Salt River Valley Water Users' Ass'n v. Berry, 31 Ariz. 39, 43-44 (1926). Furthermore, a juror's potential interest is "not limited to pecuniary concerns" — it may also encompass persons who "desire to see one side prevail in litigation or an alignment with or loyalty to one party or side." Eddington, 228 Ariz. at 363, ¶ 11. In Eddington, the court held that a peace officer employed by the law enforcement agency that investigated the case was disqualified to sit as a juror. Id. at 365, ¶ 18.
¶11 During voir dire, the parties spoke with six jurors who indicated that they knew Dr. Ferguson. Juror 5 said his wife had been a patient of Dr. Ferguson. Juror 10 disclosed that Dr. Ferguson had treated his teenage son for a broken arm a few months earlier and the cast had recently been removed. Juror 13 said he was a former patient of Dr. Ferguson's and expressed discomfort with being a juror. Juror 29 explained that Dr. Ferguson performed back surgery on his wife more than ten years earlier. When Juror 29 was asked if it would make him uncomfortable to have to judge Dr. Ferguson, he responded, "possibly." Bedway's counsel followed up by asking if he would need "a little more proof" that Dr. Ferguson was wrongful to find against him and Juror 29 answered in the negative. Juror 31 stated that her teenage daughter was examined by Dr. Ferguson for a fractured wrist two or three years earlier. Finally, Juror 41 explained that his wife worked for a surgical center and that it was possible that she worked with Dr. Ferguson. But he expressed uncertainty whether she in fact worked with the doctor.
Additionally, two other jurors expressed familiarity with Dr. Ferguson but they were deemed to be too far down the juror list to be considered for the final jury list. Also, at one point Dr. Ferguson's counsel believed another juror had said he was familiar with Dr. Ferguson but counsel later stated that he was incorrect.
¶12 Bedway argued that he would not receive a fair trial unless all these jurors were stricken for cause. The court struck Jurors 13 and 41 for cause but did not find cause to strike the four remaining jurors familiar with Dr. Ferguson, given their responses during their individual questioning and their assurances they could be fair and impartial.
¶13 The parties had five preemptory strikes each and the jury was to consist of eight jurors and two alternates. Before the preemptory strikes were made, the court excused all but twenty of the prospective jurors. The litigants made their strikes from that group. Bedway used one of his strikes on Juror 5. After both parties made their strikes, Jurors 10, 29, and 31 remained on the final jury panel. At the end of trial, both parties agreed to allow all ten jurors to deliberate, with a majority of eight or more needed for a verdict.
¶14 Dr. Ferguson contends that Bedway's failure to use his preemptory strikes on the three remaining jurors in question waives the issue, citing State v. Rubio, 219 Ariz. 177, 181, ¶ 12 (App. 2008) (holding a "defendant is required to use an available peremptory strike to remove an objectionable juror whom the trial court has refused to remove for cause in order to preserve the issue for appeal" and failing to do so waives any error). This bright line rule is most often cited in criminal prosecutions, but we choose to apply it here as well. See Nightengale v. Timmel, 256 P.3d 755, 762 (Idaho 2011) (applying the rule in a medical malpractice case); Cortez ex rel. Estate of Puentex v. HCCI-San Antonio, Inc., 159 S.W.3d 87, 90-91 (Tex. 2005) (applying the rule in civil action against a nursing facility).
¶15 Bedway declined to strike three of the jurors he claims were interested or biased but he did use a preemptory strike on Juror 5. He has therefore waived his claims regarding Jurors 10, 29, and 31, but he has not waived his argument regarding Juror 5. Even setting aside the waiver, the analysis regarding Juror 5 also applies to Jurors 10, 29, and 31 because their background and voir dire responses were similar.
¶16 Our review of the jury selection process reveals no abuse of discretion by the trial court in refusing to strike these jurors for cause. We note initially that all four of these jurors indicated they could be fair and impartial. None of the four jurors had a direct relationship with the doctor. Although Juror 5's wife had been treated by the doctor, there was no suggestion that the doctor-patient relationship, or any other relationship, still continued at the time of jury selection. Moreover, the relationship between Dr. Ferguson and the potential jurors did not involve an employer-employee relationship or any possible pecuniary benefit similar to those who are insured by a party to the case or stockholders of a company being sued. See Eddington, 228 Ariz. at 365, ¶ 18; Lopez, 177 Ariz. at 374; Berry, 31 Ariz. at 43-44.
¶17 It is clear the trial court carefully considered the circumstances and the degree of contact or relationship between each prospective juror and Dr. Ferguson. In our rural counties, it is not unusual that prospective jurors may know doctors or other parties in lawsuits, and the court exercised its discretion based on specific answers and the demeanor of the prospective jurors. In doing so, the court struck two other prospective jurors for cause before the parties used their preemptory strikes: one who was previously Dr. Ferguson's patient and expressed discomfort with passing judgment on the doctor; and another whose wife worked as an registered nurse at a hospital, which possibly caused her to occasionally work with Dr. Ferguson and another doctor, who testified as a witness. Consequently, based on this record, we discern no abuse of discretion in the court's decision not to strike Jurors 5, 10, 29, and 31 for cause.
¶18 Alternatively, even if there had been some error, it is Bedway's burden to persuade us that such error resulted in prejudice, because prejudice will not be presumed. See State v. Reasoner, 154 Ariz. 377, 384 (App. 1987). He has not met that burden. Bedway argues that prejudice is shown because the jury returned a verdict after only 30 minutes of deliberation. Although 30 minutes of deliberation may be considered "brief" after five days of trial, Bedway has cited no statute, rule, or case law that imposes a minimum time for deliberation or compels the conclusion that 30 minutes of deliberation means the jurors were biased or otherwise acted improperly. Also, in civil cases the jurors could have talked about the evidence during breaks when they were all together. See Arizona Rule of Civil Procedure ("Rule") 39(f). On this record, we cannot presume that 30 minutes of deliberation demonstrates the jurors were biased or unfair.
II. Expert Testimony
¶19 Bedway's standard of care and causation expert was Dr. Williams, an orthopedic surgeon who specializes in treatment of upper extremities. Bedway argues that the court erred by not allowing Dr. Williams to testify to his interpretation of the MRI films or to give his opinion that Dr. Ferguson should have reviewed the films.
¶20 During the direct examination of Dr. Williams, Dr. Ferguson objected when Bedway asked Dr. Williams to express his opinions regarding what he saw in the MRI films and whether Dr. Ferguson should have reviewed them. Dr. Williams would have testified that Dr. Ferguson should have read the MRI report, and had he read the report, it would have raised suspicions that would require him to look at the MRI films. Dr. Williams also would have testified that if Dr. Ferguson had reviewed the MRI films, he would have seen that the tendon was completely — rather than partially — ruptured.
¶21 At a bench conference, Dr. Ferguson objected that the proposed testimony was improper because Dr. Williams was not an expert qualified to render an opinion on the films, these opinions had not been disclosed, and Dr. Williams had already acknowledged in deposition that the standard of care permitted orthopedic surgeons to rely on the radiologist's MRI report rather than the actual films. Bedway asked the court to allow him to lay the necessary foundation to qualify Dr. Williams for further opinions and said the opinions were disclosed in Dr. Williams's affidavit and his disclosure statement.
¶22 The trial court sustained Dr. Ferguson's objection. However, Bedway continued to question Dr. Williams after the objection was sustained, and Dr. Williams testified that the radiologist's report was suspicious and the standard of care required an orthopedic surgeon to clarify the report with the radiologist. He also testified that he believed Bedway had suffered a complete rupture and that failing to treat it was below the standard of care. Additionally, Dr. Williams explained:
Well, I did have an opportunity to read that report, and then I looked at the MRI. And I read a number of MRIs, because the radiologist -- that's his profession, but it's also my responsibility to follow up on particularly a report that's confusing. And, from that, I concluded that he had a complete rupture.
The trial transcript records that Dr. Ferguson objected after this answer was given by Dr. Williams and the trial court sustained the objection, but the testimony was not stricken from the record and the court did not instruct the jury to disregard the answer. The testimony remains in the record, therefore. See Greene v. Hereford, 12 Ariz. 85, 97 (1908) (explaining that "although the court sustained the objection to the question, the witness nevertheless answered the question after the objection was sustained, and the answer was neither withdrawn nor stricken out on motion, but remains in the record"); State v. Fendler, 127 Ariz. 464, 477 (App. 1980) (stating that even if the court erred in sustaining an objection, such error was harmless because there was no motion to strike and therefore the answer remained on the record); State v. Abbey, 13 Ariz. App. 55, 56 n.1 (App. 1970) ("Where objection to testimony is sustained, but no motion to strike is made, the answer becomes part of the record"); cf Fairway Builders, Inc. v. Malouf Towers Rental Co., 124 Ariz. 242, 247 (App. 1979) (distinguishing bench trials from jury trials and stating that striking testimony to which an objection has been sustained is not necessary in bench trials).
¶23 We review the court's ruling limiting Dr. Williams's testimony for an abuse of discretion. See Sandretto, 234 Ariz. at 356, ¶ 11; see also Solimeno v. Yonan, 224 Ariz. 74, 77, ¶ 9 (App. 2010) (trial courts are in a better position to determine whether a disclosure violation has occurred and a trial court's decision regarding alleged disclosure violations will not be disturbed absent an abuse of discretion). We view excluded evidence in favor of the proponent. Larsen v. Decker, 196 Ariz. 239, 241, ¶ 6 (App. 2000).
¶24 Rule 26.1(a)(6) requires parties to disclose information about the expert witnesses they expect to call at trial, including "the substance of the facts and opinions to which the expert is expected to testify" and "a summary of the grounds for each opinion." There is also a continuing duty to disclose new or additional discovered information. Ariz. R. Civ. P. 26.1(b)(2). The purpose of the pretrial disclosure rules is "to provide the parties 'a reasonable opportunity to prepare for trial.'" Breitbart-Napp v. Napp, 216 Ariz. 74, 80, ¶ 21 (App. 2007) (quoting Bryan v. Riddel, 178 Ariz. 472, 476 n.5 (1994)).
¶25 In suing Dr. Ferguson for malpractice, Bedway had to prove that Dr. Ferguson breached the standard of care when he diagnosed Bedway's injured tendon. Although Dr. Williams testified in deposition that an orthopedic surgeon meets the standard of care when he relies on a radiologist's MRI report, Bedway wanted Dr. Williams to testify that Dr. Ferguson had a duty to read and interpret the MRI films as an orthopedic surgeon and not merely rely on the radiologist's report. In the disclosure statement, which was served before the deposition, Bedway disclosed that Dr. Williams would testify that Dr. Ferguson "should have reviewed the MRI images" and that if he had, he "most likely would have discovered the biceps tendon was ruptured." Although the initial objection sustained by the trial court may have excluded some testimony that had been disclosed, Dr. Williams's subsequent answers addressed nearly all of the disclosed opinions. Bedway wanted Dr. Williams to testify to the following opinions:
Although the disclosure statement itself was not part of the record before the trial court and as such this court struck it from appellant's appendix, this portion of the statement was read to the court by Bedway's attorney without objection by Dr. Ferguson, according to the trial transcript.
• The MRI report was internally inconsistent or ambiguous, and the standard of care therefore required Dr. Ferguson to review the MRI images.Dr. Williams actually testified to the following opinions:
• The MRI images showed a complete rupture.
• Had Dr. Ferguson reviewed the MRI images he would have seen that the tendon was completely ruptured.
• Dr. Williams would demonstrate the complete rupture on enlarged images of the MRI films.
• Dr. Ferguson did not review the MRI report, which violated the standard of care.
• The standard of care would require a reasonable orthopedic surgeon reviewing the MRI report to get clarification from the radiologist.
• The standard of care requires at least some action on the part of the orthopedic surgeon to determine what the MRI report meant.
• Dr. Williams had read the MRI report and looked at the MRI images and concluded from those things that there had been a complete rupture.
• Dr. Ferguson violated the standard of care in the manner in which he treated Bedway.
• Bedway suffered a complete rupture of the tendon and failing to treat it was below the standard of care.
• A partial rupture must be treated in a more aggressive manner.
Although the objection to this answer was sustained, the answer was not stricken and remained in the record previously noted. See supra ¶ 22 n.3 and cases cited therein. --------
¶26 Other than Dr. Williams showing jurors the actual pictures of the MRI to demonstrate that the tendon was completely ruptured, essentially all of the testimony Bedway wanted included was presented to the jury. Also, Bedway argued in closing without objection that Dr. Williams thought the tendon was completely ruptured; if Dr. Ferguson had read the MRI report he would have perceived inconsistencies requiring further investigation; and such further investigation would have revealed a complete rupture.
¶27 Bedway argues that the trial court based its ruling solely on the rationale that Dr. Williams was not qualified to read an MRI because he was not a radiologist. The trial court did opine in its denial of a new trial that it had not allowed Dr. Williams to testify as an expert regarding what the MRI showed. However, Dr. Ferguson had also argued that the testimony was not disclosed. "We will uphold the trial court if it is legally correct for any reason." First Credit Union v. Courtney, 233 Ariz. 105, 107, ¶ 7 (App. 2013). Therefore, based on the record, and based on the testimony that ultimately was received, we do not discern an abuse of discretion by the trial court in limiting Dr. Williams' testimony.
III. Closing Arguments
¶28 Bedway also contends the court erred in denying his motion for new trial because of alleged misconduct by Dr. Ferguson's counsel during closing arguments. He cites two statements as evidence of misconduct: Ferguson's counsel stated (1) that Bedway did not sue or take the deposition of the radiologist who performed the MRI, interpreted the results, and prepared the report; and (2) that an NFL player was able to play an entire season and make the pro bowl after tearing his biceps tendon. The denial of a motion for a new trial is reviewed for an abuse of discretion. Ritchie v. Krasner, 221 Ariz. 288, 303, ¶ 51 (App. 2009). A trial court should grant a motion for a new trial based on attorney misconduct only in "the most serious cases in order to prevent a miscarriage of justice." Id. at 303, ¶ 52.
¶29 Bedway did not object to the first statement. "Generally, counsel's failure to object to the argument at trial waives the issue on appeal." Id. at 303, ¶ 51 (citing Monaco v. HealthPartners of S. Ariz., 196 Ariz. 299, 304-05 n.2, ¶¶ 16, 18 (App. 1999); Grant v. Ariz. Pub. Serv. Co., 133 Ariz. 434, 451 (1982)); see also Sandretto, 234 Ariz. at 364, ¶ 56 (holding that the "assertion of improper closing arguments [was] waived on appeal" because a party failed to object at trial). Accordingly, Bedway's complaint regarding the statement in argument about the radiologist not being sued is waived.
¶30 Bedway also contends that defense counsel's statements about an NFL player playing with a torn biceps tendon was not based on evidence in the case. During closing arguments, Dr. Ferguson's counsel stated:
[y]ou know Adrian Peterson? Have you read about Adrian Peterson? 2012, spring ball, or summer ball, before the season started, he tore his biceps tendon. He played the entire season and made the Pro Bowl.Bedway objected to the statement and the court sustained the objection and struck the statement from the record. Later, in its ruling denying the motion for new trial, the court found that Bedway had not demonstrated that he had been deprived of a fair trial because the court had taken prompt remedial action to remove any taint caused by the improper argument.
¶31 Bedway relies on two cases to support his contention that he was prejudiced by the comments in closing argument. In the first, Cal X-Tra v. W.V.S.V. Holdings, L.L.C., the trial court granted a defendant's motion for new trial when the court determined that evidence admitted for a limited purpose had been misused during closing arguments. 229 Ariz. 377, 404-05, ¶ 91-92 (App. 2012). Applying the abuse of discretion standard, this court affirmed because the record supported the ruling. Id. at 405, ¶ 92. In the other case, Sisk v. Ball, the Arizona Supreme Court remanded the case for a new trial because the defendant's counsel had told the jurors that after the case was over, the plaintiff would have an opportunity to recover from a different defendant. 91 Ariz. 239, 246 (1962). The court explained that
[w]here the jury is lead to believe that the plaintiff has another chance to recover from the doctor for this same injury, and are told he will surely do so, they might consider the plaintiff to be avaricious, or they might desire to cast the entire burden of damages upon the offending physician who, in their view, might be better able to pay, or more culpable than the defendant before them.Id.
¶32 Neither case requires that we find that the trial court abused its discretion in denying Bedway's motion for new trial. Appellate courts give considerable deference to a trial court's rulings on such issues, because the court "sees the witnesses, hears the testimony, and has a special perspective of the relationship between the evidence and the verdict which cannot be recreated by a reviewing court from the printed record." Hutcherson v. City of Phoenix, 192 Ariz. 51, 53, ¶ 12 (1998) (citation omitted); see also Ritchie, 221 Ariz. at 303, ¶ 52. Here, the trial court here did not find the portion of the argument that was stricken caused prejudice to Bedway after the court had taken its remedial measures. Also, the trial court instructed the jury that the arguments of counsel are not evidence, and we presume the jurors followed the court's instructions in the absence of evidence to the contrary. See State v. Ramirez, 178 Ariz. 116, 127 (1994). Consequently, we conclude the trial court did not abuse its discretion in denying Bedway's motion for new trial.
CONCLUSION
¶33 For all of these reasons, we affirm the judgment.