Opinion
1 CA-CV 11-0761
06-04-2013
JELENA P. CRAFT, as surviving daughter individually and on behalf of the statutory beneficiaries of the Arizona Wrongful Death Act, Plaintiff/Appellant, v. MICHAEL TRAINOR, D.O., and JANE DOE TRAINOR, husband and wife; ORTHOPAEDIC SPECIALISTS OF CENTRAL ARIZONA; YAVAPAI REGIONAL MEDICAL CENTER; and JOHN NESS, R.N., Defendants/Appellees.
Law Office of Scott E. Boehm, P.C. by Scott E. Boehm Grysen & Associates by B. Elliott Grysen Attorneys for Plaintiff/Appellant Kent & Wittekind, PC by Peter M. Wittekind Attorney for Defendant/Appellee Trainor And Orthopaedic Specialists of Central Arizona Fadell, Cheney & Burt, P.L.L.C by Gary A. Fadell Attorney for Defendants/Appellees YRMC and John Ness, R.N.
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure)
Appeal from the Superior Court in Yavapai County
Cause No. P1300CV20071248
The Honorable David L. Mackey, Judge
AFFIRMED IN PART; REVERSED IN PART AND REMANDED
Law Office of Scott E. Boehm, P.C.
by Scott E. Boehm
and
Phoenix Grysen & Associates
by B. Elliott Grysen
Attorneys for Plaintiff/Appellant
Spring Lake, MI Kent & Wittekind, PC
by Peter M. Wittekind
Attorney for Defendant/Appellee Trainor
And Orthopaedic Specialists of Central Arizona
Phoenix Fadell, Cheney & Burt, P.L.L.C
by Gary A. Fadell
Attorney for Defendants/Appellees YRMC and John Ness, R.N.
Phoenix THUMMA, Judge ¶1 Jelena Craft appeals from a defense verdict in this wrongful death and medical malpractice case arising out of the death of her father, Morris Scoggins. Craft argues the superior court erred in: (1) excluding expert testimony that Scoggins should have been transferred to an intensive care unit (ICU) hours before his death (and nurses should have advocated for that transfer) and that Scoggins would not have died if he had been transferred to the ICU; (2) allowing a treating nurse to testify that giving Scoggins a specific medication did not cause his death and (3) assessing taxable costs against statutory beneficiaries who were not named as parties. Because the expert testimony should have been admitted, the judgment is affirmed in part and reversed in part, the cost award is vacated and this matter is remanded for a new trial.
BACKGROUND
This court "view[s] the evidence and reasonable inferences therefrom in the light most favorable to upholding the jury's verdict." Salica v. Tucson Heart Hosp.-Carondelet, L.L.C., 224 Ariz. 414, 416, ¶ 2, 231 P.3d 946, 948 (App. 2010).
¶2 On February 1, 2006, Scoggins underwent back surgery at Yavapai Regional Medical Center (YRMC). Defendant Dr. Michael Trainor, who practices medicine through defendant Orthopaedic Specialists of Central Arizona (collectively Trainor), performed the surgery. After the uneventful, nearly six-hour surgery, Scoggins was transferred to a general care (i.e., non-ICU) room for an anticipated three to seven day post-operative stay. Trainor prescribed Scoggins significant pain medications, including Dilaudid, a strong narcotic. ¶3 Late the next night and into the morning of February 3, 2006, Scoggins developed pneumonia, his heart rate and breathing became rapid and his blood oxygen levels dropped. Trainor prescribed antibiotics for the pneumonia and, after additional treatment, Scoggins' oxygen levels and heart and breathing rates stabilized. By 9:30 a.m. on February 4, Scoggins appeared stable, was able to take short walks and showed no respiratory distress. As a result, Trainor decreased the Dilaudid prescription to one dose every four hours. ¶4 At approximately 4:45 p.m. on February 4, Scoggins awoke from a deep sleep, became agitated and tried to get out of bed. Concerned that Scoggins might hurt himself, a duty nurse called a "Code Green" to summon assistance from several YRMC staff to keep him safely in bed. After a telephone consultation with Trainor, Scoggins was given a dose of Valium to calm him down. By 5:10 p.m., Scoggins was resting comfortably and was stable. Neither Trainor nor any YRMC staff ordered Scoggins to be transferred to the ICU as a result of the Code Green. ¶5 Defendant John Ness, R.N., began his shift at 7:00 p.m. on February 4. Ness learned of the Code Green and made Scoggins his highest priority patient, observing him many times during the next few hours. At about 7:40 p.m., after finding Scoggins to be responsive and stable, although in "excruciating pain," Ness gave Scoggins a dose of Dilaudid. ¶6 At approximately 9:00 p.m., Scoggins could prop himself up in bed and take medications orally, but complained of severe pain. Although Trainor's Dilaudid prescription called for doses only once every four hours, Ness gave Scoggins Dilaudid at 9:15 p.m., an hour and a half after the prior dose. Seeing no signs for concern, Ness left Scoggins' room when a respiratory therapist arrived at approximately 9:20 p.m. ¶7 The respiratory therapist found Scoggins was not experiencing any respiratory distress, and placed a full ventilation mask on him so he could sleep. Almost immediately, Scoggins pulled off the mask, which the therapist noticed had broken. The therapist then placed a nasal mask on Scoggins and left the room for a few minutes to get a new ventilation mask. Scoggins' oxygen saturation levels then dropped, but increased almost immediately after the therapist placed the new ventilation mask on him. ¶8 After few minutes, Scoggins' oxygen saturation levels dropped again and the therapist called for his team leader and a rapid response team (apparently consisting of ICU nurses). At approximately 9:39 p.m., after the team leader arrived, Scoggins' heart rate dropped suddenly and dramatically and he stopped breathing. The therapist and team leader immediately began emergency treatment, called a "Code Blue" and the rapid response team arrived promptly. Despite the prompt response and emergency treatment, Scoggins died at 9:55 p.m. Craft admits that Trainor was not involved in, and in fact did not know anything about, the Code Blue. ¶9 Craft filed this case individually and on behalf of Scoggins' statutory beneficiaries pursuant to Arizona's Wrongful Death Act, Arizona Revised Statutes (A.R.S.) section 12-611, et seq., claiming wrongful death and medical malpractice. At trial, Craft sought to admit expert testimony, including from Dr. Charles Landers, that Trainor failed to provide proper care because Scoggins was not transferred to the ICU after the 4:45 p.m. Code Green; that Ness failed to advocate for Scoggins' transfer to the ICU; that these failures breached the applicable standards of care and that, more probably than not, Scoggins would have survived if those breaches had not occurred. Stated differently, Craft sought to admit expert testimony, including from Landers, that had Scoggins been transferred to the ICU at any time after the Code Green and before a half an hour preceding his arrest at 9:39 p.m., emergency treatment available in the ICU would have saved his life. ¶10 The superior court granted a motion in limine precluding substantial portions of Landers' causation (and related standard of care) testimony and, during trial, the court affirmed that order following an evidentiary offer of proof hearing. The court found Craft presented no non-speculative expert testimony that the failure to transfer Scoggins to the ICU caused his death. Because that ruling meant there would be no admissible testimony on that theory of causation, the court also excluded any evidence that any defendant fell below the standard of care in not transferring Scoggins to the ICU or advocating for such a transfer. ¶11 The case went to trial against Trainor, YRMC and Ness in May and June 2011. During a seventeen-day trial, Craft provided evidence (including expert testimony) indicating that Scoggins died of respiratory failure caused by his pneumonia and defendants' substandard care, including specifically Ness' improper administration of the second dose of Dilaudid. Craft also presented expert testimony that Scoggins did not die from a heart attack. Defendants provided evidence (including expert testimony) that contradicted Craft's evidence and showed that Scoggins died of an unforeseeable heart attack. Ness opined, over objection, that his second administration of Dilaudid did not cause Scoggins' death. ¶12 After the close of the evidence, the superior court granted Craft's motion for judgment as a matter of law regarding Ness' breach of the standard of care by administering the Dilaudid and instructed the jury that Ness and YRMC "failed to comply with the standard of care in giving . . . Dilaudid to Scoggins at [9:15 p.m.]. You should decide whether the failure to comply with the standard of care was a cause of" Scoggins' death. After deliberating, the jury returned defense verdicts for all defendants. ¶13 Following the entry of judgment on the verdicts, Craft filed a timely appeal and this court has jurisdiction pursuant to A.R.S. § 12-2101(A)(1).
Originally, Scoggins' brother also was a named plaintiff, acting as personal representative for the estate. Prior to trial and pursuant to the parties' stipulation, the claims by Scoggins' brother were dismissed with prejudice and he was dismissed as a party.
Absent material revisions after the relevant dates, statutes cited refer to the current version unless otherwise indicated.
DISCUSSION
I. Standard of Review.
¶14 The superior court's exclusion or admission of evidence will not be disturbed on appeal absent an abuse of discretion and resulting prejudice. See Selby v. Savard, 134 Ariz. 222, 227, 655 P.2d 342, 347 (1982); Lay v. Mesa, 168 Ariz. 552, 554, 815 P.2d 921, 923 (App. 1991). An abuse of discretion occurs where no evidence supports the decision or the reasons given by the court are "clearly untenable [or] legally incorrect." Charles I. Friedman, P.C. v. Microsoft, 213 Ariz. 344, 350, ¶ 17, 141 P. 3d 824, 830 (App. 2006) (citation omitted). Prejudice is not presumed and "must affirmatively appear from the record." Rimondi v. Briggs, 124 Ariz. 561, 565, 606 P.2d 412, 416 (1980).
II. Landers' Intended Trial Testimony Was Admissible.
A. Superior Court Proceedings And Grounds For Exclusion. ¶15 The jury heard competing expert testimony about the cause of death, including Landers' testimony that Scoggins died from respiratory failure due to "pneumonia, fluid overload, sleep apnea, and very low oxygen," not from a heart attack. Craft asserts that her primary theory of liability was that "Trainor and YRMC's staff [including Ness] were negligent in failing to transfer [Scoggins] to the ICU department at the time of the" Code Green, five hours before his death. Craft argues that if Scoggins had been in the ICU "at the time he stopped breathing, that would have been prevented or [Scoggins] would have been resuscitated and would not have died." ¶16 Under Arizona's Medical Malpractice Act, A.R.S. §§ 12-561 through -594, Craft was required to present evidence to show (1) the applicable standard of care; (2) the health care provider fell below the standard of care and (3) the health care provider's deviation from the standard of care caused the claimed injury. A.R.S. § 12-563; Evans v. Bernhard, 23 Ariz. App. 413, 415-16, 533 P.2d 721, 723-24 (1975). ¶17 Craft's standard of care expert for her claims against Trainor was Dr. Dirk Alander, who testified in a trial deposition that the applicable standard of care required that Scoggins be transferred to the ICU at approximately 5:00 p.m. on February 4 (just after the Code Green), which did not occur. Craft's standard of care expert for her claims against YRMC and its nurses (including Ness) was Registered Nurse Valerie Marsh, who testified at an offer of proof that YRMC's nurses breached the standard of care by failing to "advocate for" Scoggins' transfer to the ICU before and after the Code Green. ¶18 The motion in limine claimed that Landers' causation testimony regarding Scoggins being transferred to the ICU was inadmissible and, as a result, the related standard of care evidence also was inadmissible. As particularly relevant here, the motion argued that Landers had no proper basis to testify that Scoggins "was probably going to survive had he been in the ICU, rather than another floor of the hospital" and, therefore, his testimony was inadmissible under Arizona Rule of Evidence 702 (2011). After hearing argument, the superior court granted the motion in limine, finding "that it's just purely speculative at this point that the transfer to the ICU would have been of benefit to Mr. Scoggins" and, as a result, precluded evidence that Trainor "fell below the standard of care by not transferring [Scoggins] to the ICU." In denying Craft's immediate oral motion to reconsider, the court observed that "right now I don't see the link. So the [causal] connection has not been established." The court, however, allowed Craft to again raise the issue during trial. ¶19 Craft re-urged the issue during trial, resulting in the offer of proof hearing. After hearing Landers' testimony outside of the presence of the jury, the superior court reaffirmed the prior ruling
This decision applies the Arizona Rules of Evidence in effect at the time of trial, notwithstanding that the rules were later amended effective January 1, 2012. Although the motion in limine cited two other potentially relevant admissibility standards, there is no indication that Landers' testimony was novel scientific evidence (making inapplicable the "general acceptance" standard originating in Frye v. United States, 293 F. 1013 (D.C. App. 1923)), and the motion mentioned, but did not seek the application of, the standard in A.R.S. § 12-2203, see also Lear v. Fields, 226 Ariz. 226, 245 P.3d 911 (App. 2011) (holding A.R.S. § 12-2203 unconstitutional).
not on a disclosure basis, but on a lack of opinion to a reasonable degree of medical certainty that additional treatment could be provided in an ICU that would have kept Morris Scoggins alive . . . and also there's [a] lack of any connection to information being provided to Dr. Trainor within the 30 minute window before this happened that would have allowed him to make a decision or order with respect to the transfer.Given this preclusion of causation evidence, the court also affirmed the preclusion of evidence "that the doctors or hospital fell below the standard of care for not transferring Mr. Scoggins to the ICU."
B. Applicable Legal Standards. ¶20 Landers' qualifications as an expert are not in dispute. Instead, the issue is whether the superior court abused its discretion in precluding Landers' causation testimony. That issue focuses on whether Landers' testimony would "assist the trier of fact to understand the evidence or to determine a fact in issue." Ariz. R. Evid. 702. The parties do not dispute that for medical expert causation testimony to be admissible, it must be to a reasonable degree of medical certainty (or, more simply, more probably than not) and supported by an appropriate foundation. See, e.g., Benkendorf v. Advanced Cardiac Specialists Chartered, 228 Ariz. 528, 530, ¶ 8, 269 P.3d 704, 706 (App. 2012); Larsen v. Decker, 196 Ariz. 239, 244, ¶ 25, 995 P.2d 281, 286 (App. 2000); Kreisman v. Thomas, 12 Ariz. App. 215, 218, 469 P.2d 107, 110 (1970). As the proponent of the evidence, Craft has the burden to show it should have been admitted. See Gaston v. Hunter, 121 Ariz. 33, 51, 588 P.2d 326, 345 (App. 1978).
C. Analysis. ¶21 The superior court described the offer of proof hearing as providing "a chance for [Craft] to put on an offer of proof to convince [the court that it] should allow Dr. Landers to offer an opinion . . . that the result would have been different if Mr. Scoggins was transferred to the ICU." Although the hearing lasted approximately half an hour, the core of Landers' testimony can be summarized in two questions and two answers:
Q. If at any time up until the time of his arrest, at approximately 9:39 p.m., if he had been transferred to an ICU, you believe his pneumonia could have been treated and more probable than not he would have survived, is that correct?Later, when asked about a disclosure statement, the following exchange with Landers occurred:
A. That's true. I wouldn't put it exactly at 9:39. You need a few minutes to transfer somebody prior to that time, but up to a half hour before his . . . [Code Blue], I think interventions could [have] and should [have] been and would [have] saved him.
Q. And, finally, the fifth paragraph, Dr. Landers stated the Defendants violations of the standard of care as each is described above caused or contributed to the respiratory complications and injuries Mr. Scoggins suffered resulting in his death.Although the transcript shows the offer of proof hearing was not a model of clarity, contrary to the superior court's findings, Landers' proposed trial testimony to a reasonable degree of medical certainty was that, had Scoggins been transferred to the ICU immediately after the Code Green (or, for that matter, at any time at least 30 minutes before the Code Blue), Scoggins would have survived. Because Landers' testimony was to a reasonable degree of medical certainty (more probably than not), the issue is whether there was a proper foundation for his causation testimony. See, e.g., Benkendorf, 228 Ariz. at 530, ¶ 8, 269 P.3d at 706; Larsen, 196 Ariz. at 244, ¶ 25, 995 P.2d at 286; Kreisman, 12 Ariz. App. at 218, 469 P.2d at 110. ¶22 Landers provided testimony about differences in care between ICUs and hospital rooms generally. When asked about the type of care available to Scoggins, Landers testified that all of the relevant types of care he described in ICUs generally would be available in the YRMC ICU:
It is my opinion more probable than not if prudent and reasonable care had been provided, consistent with the standard of care, had been provided by these Defendants, Mr. Scoggins would have survived.
Now, in that -- what -- doesn't that not just summarize all of the things that you told us over the last half an hour now that those things, the transfer the aggressive therapy, would have changed the outcome?
A. That's what it says to me.
All of the things that I mentioned are appropriate to this institution. I looked at the website. There's a 16 bed ICU. They have the, personnel, the training. They have critical care doctors who are pulmonary doctors or internal medicine doctors or critical care doctors who are available to provide consultative services in the ICU and carry out higher level of . . . sophisticated intervention including intubation and ventilation.¶23 Defendants argue that, because Landers could provide statistics about the probability of "surviving a cardiopulmonary resuscitation" but not for surviving respiratory arrest, his intended trial testimony was speculative and, therefore, inadmissible. Landers testified that the cardiopulmonary resuscitation survival statistics were well known but that respiratory arrest statistics simply were not kept. No controverting evidence was presented or is argued. As noted above, the parties' theories about how Scoggins died differed significantly. In context, Landers' testimony was that, more probably than not, had Scoggins been transferred to the ICU as a result of the Code Green, he would have survived. Trainor provides no authority indicating that Landers was required to further quantify, to a percentage or otherwise, that testimony. ¶24 The cases cited by the parties are of limited value. Collectively, defendants cite one case (also cited by Craft): Barrett v. Harris, which declared that "[n]egligence is not actionable in the abstract" and that a plaintiff must prove that defendant's breach of the standard of care caused the plaintiff's claimed injury. 207 Ariz. 374, 382, ¶ 28, 86 P.3d 954, 962 (App. 2004) (citation omitted). Barrett, however, considered the sufficiency of causation evidence admitted at trial in reviewing the grant of a motion for judgment as a matter of law, not admissibility following an order precluding the admission of such evidence. Id at 376, ¶ 1, 86 P.3d at 956. Barrett did not address the standards for admissibility of expert causation testimony, the issue raised in this appeal. ¶25 Nearly all of the cases Craft cites address dispositive pre-trial motions or motions for judgment as a matter of law, not the admissibility of expert testimony. Craft also cites Gosewisch v. American Honda Motor Co. , 153 Ariz. 400, 737 P.2d 376 (1987), for the proposition that "causation should be a question of fact for the jury." By contrast, the issue here is the standard for the admissibility of expert testimony. ¶26 The one case cited addressing the admissibility of expert causation testimony is Pipher v. Loo, 221 Ariz. 399, 212 P.3d 91 (App. 2009). In Pipher, as relevant here, the court on appeal addressed whether the superior court abused its discretion in precluding causation expert testimony on the ground that the proffered testimony lacked foundation and was speculative. Id. at 403, ¶ 14, 212 P.3d at 95. In reversing the exclusion of the evidence, Pipher noted that, to be admissible, such testimony "'must be relevant, the witness must be qualified [and have relevant expertise], and the evidence must be the kind that will assist the jury.' Rule 702 permits a qualified witness to testify in the form of an opinion if it would assist the trier of fact to understand the evidence or determine a fact in issue." Id. at 403-04, ¶ 16, 212 P.3d at 95-96 (quoting Logerquist v. McVey, 196 Ariz. 470, 489, ¶ 57, 1 P.3d 113, 132 (2000)) (citations omitted). "'Questions about the accuracy and reliability of a witness' factual basis, data, and methods go to the weight and credibility of the witness' testimony and are questions of fact . . . [that do] not turn on the judge's preliminary assessment of testimonial reliability. It is the jury's function to determine accuracy, weight, or credibility.'" Id. at 404, ¶ 17, 212 P.3d at 96 (quoting Logerquist). ¶27 Applying Pipher, it is undisputed that as required by Rule 702, causation testimony is relevant (indeed, essential) in this case and would assist the jury in determining a fact in issue. See A.R.S. § 12-563; Evans, 23 Ariz. App. at 415-16, 533 P.2d at 723-24. Moreover, defendants do not dispute that Landers was a qualified witness with relevant expertise. Although they argue Landers' testimony was speculative (and therefore not reliable), given the testimony proffered, such issues go to the weight the jury will give to such testimony, not admissibility. Pipher, 221 Ariz. at 404, ¶ 17, 212 P.3d at 96. On this record, it was for the jury as fact finder, not the court in addressing admissibility, to weigh and assess the accuracy and reliability of Landers' testimony, including the data he relied on and the factual bases for his testimony (such as the services available at the YRMC ICU and whether Scoggins qualified for transfer to the YRMC ICU). Id. The question then becomes whether the erroneous exclusion of such testimony was prejudicial. ¶28 The improper exclusion of evidence "is not grounds for reversal if 'in all probability its admission would not have changed the result.'" Gasiorowski v. Hose, 182 Ariz. 376, 382, 897 P.2d 678, 684 (App. 1994) (quoting Graham v. Vegetable Oil Prods. Co. , 1 Ariz. App. 237, 243, 401 P.2d 242, 248 (1965)). The test is whether the same verdict would have been returned if the precluded evidence had been admitted. See Groener v. Briehl, 135 Ariz. 395, 398, 661 P.2d 659, 662 (App. 1983). Here, the admission of the excluded causation testimony from Landers (and the related standard of care testimony from Alander and Marsh) certainly could have changed the result. See Davis v. Cessna Aircraft Corp. , 182 Ariz. 26, 35, 893 P.2d 26, 35 (App. 1994). ¶29 Trainor argues that the defense verdict means the jury rejected Craft's theory of the case that Scoggins died avoidably from pneumonia and related complications. Such speculation, however, does not necessarily preclude a finding that Scoggins would not have died had he been transferred to the YRMC ICU after the Code Green. Moreover, the jury's analysis was without the benefit of Landers' testimony (and related standard of care evidence) that Scoggins should have been transferred to the ICU after the Code Green and, had he been transferred to the ICU sooner, more probably than not he would have survived. On this record, the court cannot say the same verdict would have been returned if the evidence from Landers, Alander and Marsh had been admitted into evidence. Accordingly, reversal is required. See Gasiorowski, 182 Ariz. at 382, 897 P.2d at 684. Given this reversal, the judgment in defendants' favor is vacated on Craft's claims: (1) that Trainor negligently failed to transfer Scoggins to the YRMC ICU hours after the Code Green and (2) that YRMC nurses (including Ness) should have advocated for that transfer. Those claims are remanded for a new trial.
Craft's standard of care experts (including Alander and Marsh) provided offers of proof that the standard of care required Scoggins to be transferred to the YRMC ICU immediately after the Code Green.
See, e.g. , Petolicchio v. Santa Cruz County Fair, 177 Ariz. 256, 264, 866 P.2d 1342, 1350 (1994) (vacating order granting defendant's motion to dismiss for failure to state a claim); Orme Sch. v. Reeves, 166 Ariz. 301, 311, 802 P.2d 1000, 1010 (1990) (reversing denial of motion for summary judgment); Salica, 224 Ariz. at 415-16, 231 P.3d at 947-48 (affirming denial of motion for judgment as a matter of law); Barrett, 207 Ariz. at 376, ¶ 1, 86 P.2d at 956 (affirming grant of motion for judgment as a matter of law); Kuhnke v. Textron, Inc., 140 Ariz. 587, 588, 684 P.2d 159, 160 (App. 1984) (reversing grant of plaintiff's motion for directed verdict).
Trainor's argument on appeal regarding the standard of care testimony is based on the superior court's exclusion of Landers' causation testimony. Because Landers' testimony was improperly excluded, Trainor's argument regarding the proffered standard of care testimony from Alander and Marsh fails.
III. Admission Of Ness' Testimony Was Not Reversible Error.
¶30 Along with the failure-to-advocate claim by Craft against the nurses (including Ness) and YRMC, Craft also alleged that Ness' administration of Dilaudid contrary to Trainor's orders caused Scoggins' death. As to the latter claim, at the end of Ness' direct testimony, the following exchange occurred:
Q: Do you believe that the administration of Dilaudid earlier than what [Trainor's] order called for was in any way responsible for Scoggins's death?Later that day and the next morning, Craft asked the superior court to direct the jury to disregard Ness' answer and sought dispositive sanctions, claiming Ness was not qualified to testify on causation and had not been disclosed as a causation expert. The court denied Craft's requests, finding Ness testified based on "things that he observed, things that happened;" that his testimony complied with Arizona Rules of Evidence 701 and 704 "and was not a causation opinion offered by an independent expert" and was proper under Arizona law and "not a surprise to anyone." The court did, however, allow Craft to broadly cross-examine Ness, during which Ness admitted he deviated from Trainor's orders, he was not qualified to determine cause of death, he was not a doctor, he had never determined cause of death and he had no skill, training or education in the complications or effects of Dilaudid. Craft argues that allowing Ness to answer the question quoted above requires reversal "because Ness was not a qualified expert on cause of death, the testimony was not disclosed, and [Craft] was prejudiced." ¶31 As the superior court found, Ness is not a qualified causation expert; instead, Ness is a named defendant who testified about his personal belief based on what he observed. Even assuming error in allowing Ness to answer this single question (an issue that need not be decided), Craft has not shown reversible error. ¶32 From the inception of the case, Ness consistently denied that he contributed to Scoggins' death. As a result, the superior court found Ness' testimony was "not a surprise to anyone." Moreover, the case relied upon by Craft for a contrary conclusion is distinguishable. In Solimeno v. Yonan, the defendant was disclosed as an expert witness on the standard of care and was properly precluded from giving expert testimony about causation on disclosure grounds. 224 Ariz. 74, 78-79, ¶¶ 15, 21, 227 P.3d 481, 485-86 (App. 2010). Unlike the defendant in Solimeno, Ness was not disclosed as a causation expert, was not qualified to provide such testimony and did not do so. ¶33 Moreover, Craft has not shown prejudice. The jury heard expert testimony from Craft and Trainor that Ness' second administration of Dilaudid violated the standard of care and the court instructed the jury that Ness' actions violated the standard of care as a matter of law. Craft was given broad latitude in cross-examining Ness and got him to admit that he was not qualified to present an expert opinion on causation. The jury also heard multiple expert witnesses testify that the Dilaudid caused Scoggins' death, including that Ness' action in administering Dilaudid was "the main drug culprit for his respiratory arrest and death," that "Dilaudid is a contributor to his death" and that Dilaudid (coupled with Valium) "caused Scoggins' death." Craft has shown no error, let alone prejudice, in the superior court allowing Ness to answer the question quoted above.
[Craft's counsel]: Objection, Your Honor, he's a nurse. He hasn't been identified as a causation expert.
Court: Overruled.
A: No. I do not.
[Ness's counsel]: Thank you, Mr. Ness. And Your Honor, I'm finished.
Although Craft claims costs were improperly assessed against the non-party statutory beneficiaries, given the reversal and remand for a new trial, the cost award is vacated in its entirety and that issue need not be decided in this appeal.
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CONCLUSION
¶34 The judgment in defendants' favor on Craft's claims that Trainor negligently failed to transfer Scoggins to the YRMC ICU after the Code Green (and that nurses should have advocated for that transfer) is reversed and remanded for a new trial. The defense verdict on Craft's claim against Ness and YRMC based on Ness' giving Dilaudid to Scoggins at 9:15 p.m. on February 4, 2006 is affirmed. The award of costs is vacated, and the matter is remanded to the superior court for further proceedings consistent with this decision.
______________________________
SAMUEL A. THUMMA, Presiding Judge
CONCURRING: ________________________
MICHAEL J. BROWN, Judge
_________________________
DIANE M. JOHNSEN, Judge