Stafford v. Burns

In the

ARIZONA COURT OF APPEALS

DIVISION ONE

DALTON SCOTT STAFFORD and KRISTINE MAJOR STAFFORD,

Parents of JESSE TREY STAFFORD, Deceased, Plaintiffs/Appellants,

v.

ANNE M. BURNS, M.D. and JOHN DOE BURNS, husband and wife;

EMPOWER EMERGENCY PHYSICIANS, P.C., Defendants/Appellees.

No. 1 CA-CV 15-0476

FILED 1-17-2017

Appeal from the Superior Court in Maricopa County

No. CV2013-000019

The Honorable John Christian Rea, Judge

AFFIRMED

COUNSEL

Grysen & Associates, Spring Lake, MI

By B. Elliott Grysen

Co-Counsel for Plaintiffs/Appellants

Knapp & Roberts, P.C., Scottsdale

By David L. Abney

Co-Counsel for Plaintiffs/Appellants

Jones Skelton & Hochuli, P.L.C., Phoenix

By Eileen Dennis GilBride, Cristina M. Chait

Counsel for Defendants/Appellees

STAFFORD v. BURNS et al.

Opinion of the Court

OPINION

Presiding Judge Kenton D. Jones delivered the Opinion of the Court, in

which Judge Randall M. Howe and Judge Donn Kessler joined.

J O N E S, Judge:

¶1 Dalton and Kristine Stafford (the Staffords) appeal the trial

court’s orders denying their motions for new trial and for relief from

judgment following a jury verdict in favor of Appellees (collectively, Dr.

Burns) on the Staffords’ claims for medical malpractice and wrongful death

after their son, Jesse, died of a methadone overdose.

¶2 The Staffords argue the trial court erred in instructing the

jury, pursuant to Arizona Revised Statutes (A.R.S.) section 12-572(A),1 that

the Staffords bore the burden of proof by clear and convincing evidence

because, they contend, Dr. Burns did not provide medical care “in

compliance with” the Emergency Medical Treatment and Active Labor Act

(EMTALA). See 42 U.S.C.A. § 1395dd (West). As set forth below, we hold,

as relevant here, the heightened standard of proof for claims against a

health professional set forth in A.R.S. § 12-572(A) applies whenever the acts

or omissions plaintiff contends were deficient were provided in the course

of evaluating and treating a patient in a hospital emergency department.

¶3 The Staffords also argue the court abused its discretion in

denying their motion for new trial based upon various administrative and

evidentiary rulings, for which we find no error.

¶4 Finally, the Staffords argue the trial court erred in imposing

sanctions pursuant to Arizona Rule of Civil Procedure 68(g) because Dr.

Burns’ pretrial offer of judgment was invalid in that it was not made in good

faith. We do not reach the merits of the Staffords’ contention because Rule

68(g) contains no such good faith requirement, and we decline to impose

one in contravention of the rule’s plain language and purpose.

¶5 For the reasons stated below, we affirm the trial court’s

orders.

1 Absent material changes from the relevant date, we cite a statute’s

current version.

2

STAFFORD v. BURNS et al.

Opinion of the Court

FACTS2 AND PROCEDURAL HISTORY

¶6 In the early morning hours of February 5, 2012, Jesse

presented at the emergency room of St. Joseph’s Hospital after having

ingested an unknown quantity of methadone. After several hours of

testing, evaluation, and monitoring for a possible methadone overdose, Dr.

Burns took over Jesse’s care until he was discharged around 1:00 p.m. Jesse

was found dead the following day.

¶7 In January 2013, the Staffords filed a complaint against Dr.

Burns, asserting she negligently caused Jesse’s death by wrongfully

determining his condition was stable and discharging him prematurely. In

response, Dr. Burns asserted she complied with the standard of care and

presented evidence suggesting Jesse ingested additional methadone after

his discharge that ultimately caused his death.

¶8 After a twelve-day trial, the jury returned a defense verdict.

The Staffords’ motions for new trial and for relief from judgment were

denied. The Staffords timely appealed, and we have jurisdiction pursuant

to A.R.S. § 12-120.21(A)(1) and -2101(A)(1), (2), and (5)(a).

DISCUSSION

I. Application of A.R.S. § 12-572(A)

¶9 A plaintiff must generally prove the elements of his medical

malpractice claim by a preponderance of the evidence. See Harvest v. Craig,

195 Ariz. 521, 523, ¶ 10 (App. 1999) (citing Thompson v. Sun City Cmty. Hosp.,

Inc., 141 Ariz. 597, 608 (1984)). In 2009, however, our legislature adopted

A.R.S. § 12-572(A), which heightened the burden of proving a malpractice

claim against “a health professional . . . who provides or who is consulted

to provide services to a patient of a licensed hospital in compliance with

[EMTALA]” to clear and convincing evidence. EMTALA is a federal statute

enacted to address the growing concern that hospitals were routinely

refusing emergency medical treatment to individuals unable to pay for

services. See Eberhardt v. City of L.A., 62 F.3d 1253, 1255 (9th Cir. 1995) (citing

H.R. Rep. No. 241, 99th Cong., 1st Sess. (1986), reprinted in 1986

U.S.C.C.A.N. 726-27); Scottsdale Healthcare, Inc. v. Ariz. Health Care Cost

2 We view the facts and all inferences to be drawn therefrom in the

light most favorable to sustaining the jury’s verdict and resulting judgment

for costs. Hyatt Regency Phx. Hotel Co. v. Winston & Strawn, 184 Ariz. 120,

123 (App. 1995) (citing Bradshaw v. State Farm Mut. Auto. Ins., 157 Ariz. 411,

414 (1988), and Rhue v. Dawson, 173 Ariz. 220, 223 (App. 1992)).

3

STAFFORD v. BURNS et al.

Opinion of the Court

Containment Sys. Admin., 206 Ariz. 1, 6 n.6, ¶ 20 (2003) (citing Bryant v.

Adventist Health Sys./W., 289 F.3d 1162, 1165 (9th Cir. 2002)). The Staffords

argue the trial court erred in instructing the jury on the clear and convincing

burden of proof set forth in A.R.S. § 12-572(A) because, they contend, Dr.

Burns was not providing services “in compliance with EMTALA” as

another physician had already performed the medical screening and

determined Jesse did not have an emergency medical condition. In

response, Dr. Burns argues A.R.S. § 12-572(A) applies to “all emergency

room services.”

¶10 Although we review a trial court’s denial of a motion for new

trial and its decision to give a jury instruction for an abuse of discretion, we

review de novo whether jury instructions accurately state the law. Delbridge

v. Salt River Project Agric. Improvement & Power Dist., 182 Ariz. 46, 53 (App.

1994) (citing Suciu v. AMFAC Distrib. Corp., 138 Ariz. 514, 520 (App. 1983));

State v. Garcia, 224 Ariz. 1, 18, ¶ 75 (2010) (citing State v. Martinez, 218 Ariz.

421, 432, ¶ 49 (2008)); see also State v. Rios, 217 Ariz. 249, 250, ¶ 5 (App. 2007).

The interpretation and application of statutes also present questions of law

which we review de novo. City of Phx. v. Glenayre Elecs., Inc., 240 Ariz. 80,

84, ¶ 8 (App. 2016) (citing First Fin. Bank, N.A. v. Claassen, 238 Ariz. 160, 162,

¶ 8 (App. 2015)).

¶11 The heightened burden of proof of A.R.S. § 12-572(A) applies

where services are provided “in compliance with EMTALA.” EMTALA

applies to any individual who comes to a hospital’s emergency department

for treatment.3 42 U.S.C.A. § 1395dd(a). Under EMTALA, the hospital is

required to provide appropriate medical screening to determine if an

emergency medical condition exists.4 Id. If the patient has an emergency

3 A person “comes to the emergency department” when he “present[s]

at a hospital’s dedicated emergency department . . . and requests

examination or treatment for a medical condition,” “present[s] on hospital

property . . . other than the dedicated emergency department, and requests

examination or treatment for what may be an emergency medical

condition,” or “[i]s in a ground or air ambulance owned and operated by

the hospital for purposes of examination and treatment for a medical

condition at a hospital’s dedicated emergency department.” 42 C.F.R.

§ 489.24(b).

4 An “emergency medical condition” is a condition “manifesting itself

by acute symptoms of sufficient severity (including severe pain, psychiatric

disturbances and/or symptoms of substance abuse) such that the absence

4

STAFFORD v. BURNS et al.

Opinion of the Court

medical condition, the hospital must either provide “such further medical

examination and such treatment as may be required to stabilize the medical

condition,” or, if safe and appropriate, transfer the patient to another

facility for stabilizing care.5 42 U.S.C.A. § 1395dd(b)(1). For purposes of

EMTALA, a patient is “stabilized” when “no material deterioration of the

condition is likely, within reasonable medical probability, to result from or

occur during the transfer of the individual from a facility.” 42 U.S.C.A.

§ 1395dd(e)(3)(B).

¶12 The gamut of services that may be necessary to comply with

EMTALA cannot readily be distilled into a universally applicable and finite

list, and therefore, the phrase cannot be read narrowly. To adopt the

Staffords’ view, the burden of proof against the health care provider would

shift from clear and convincing to a preponderance of the evidence the

instant: (1) the screening process is completed and reveals the patient does

not have an “emergency medical condition” within the meaning of

EMTALA, or (2) a patient is stabilized to the point that his condition would

not deteriorate during a transfer. This sort of interpretation is not practical

in the context of a person seeking emergency medical care. The evaluation

and treatment of a medical condition is necessarily a fluid process, whereby

a patient’s status as serious or stable may change from moment to moment.

This is particularly true where the condition qualifies as an emergency

under EMTALA — manifesting through acute symptoms, severe pain, and

the risk of serious dysfunction or bodily impairment.

¶13 We do not read EMTALA to relieve the hospital emergency

department from re-screening, re-evaluating, and even possibly re-treating

a patient if his condition changes after an initial status determination.

Indeed, federal courts have held a hospital’s duty under EMTALA can

continue up to and even after a patient is admitted for inpatient care. See,

of immediate medical attention could reasonably be expected to result in —

(i) [p]lacing the health of the individual . . . in serious jeopardy; (ii) [s]erious

impairment to bodily functions; or (iii) [s]erious dysfunction of any bodily

organ or part.” 42 C.F.R. § 489.24(b); see also 42 U.S.C.A. § 1395dd(e)(1)(A).

5 Alternatively, if it is clear from the nature of the person’s request for

services that the medical condition is not of an emergency nature, “the

hospital is required only to perform such screening as would be appropriate

for any individual presenting in that manner, to determine that the

individual does not have an emergency medical condition.” 42 C.F.R.

§ 489.24(c). The Staffords do not argue Jesse’s request for care falls under

this exception.

5

STAFFORD v. BURNS et al.

Opinion of the Court

e.g., Bryant, 289 F.3d at 1168 (concluding EMTALA duty ends when a

patient is admitted in good faith for inpatient care); Thornton v. Sw. Detroit

Hosp., 895 F.2d 1131, 1134 (6th Cir. 1990) (“[O]nce a patient is found to suffer

from an emergency medical condition in the emergency room, she cannot

be discharged until the condition is stabilized, regardless of whether the

patient stays in the emergency room.”); see also 42 C.F.R. § 489.24(a)(1)(ii),

(d)(2)(i).

¶14 We reject the Staffords’ argument that EMTALA was never

implicated during Jesse’s stay in the emergency department because he was

not diagnosed with an emergency medical condition. First, the Staffords

do not identify any record evidence establishing that fact. Furthermore,

“emergency medical condition” is defined, specifically, to include

“symptoms of substance abuse.” 42 C.F.R. § 489.24(b). Viewing the

evidence in the light most favorable to sustaining the verdict, as we are

required to do, we can reasonably infer otherwise from the evidence that

the original emergency room physician chose to keep Jesse for observation

and testing over the course of several hours, rather than immediately

authorizing his discharge.

¶15 Second, EMTALA applies whenever a person comes to the

hospital “for what may be an emergency medical condition.” 42 C.F.R.

§ 489.24(b) (emphasis added). Jesse came to the hospital for this precise

purpose — seeking evaluation and treatment of what may have been an

emergency medical condition — after ingesting an unknown quantity of

methadone, a dangerous narcotic drug. See A.R.S. § 13-3401(20)(k). He was

kept in the emergency department for almost twelve hours for observation,

testing, and evaluation of physical and psychological concerns — all

services required by EMTALA to screen for and stabilize a potentially life-

threatening medical condition. See supra ¶ 14. If Jesse was misdiagnosed

or discharged prematurely, as the Staffords contend, those actions occurred

in the course of providing EMTALA-mandated services, A.R.S. § 12-572(A)

is directly applicable, and the Staffords were required to prove their claims

by clear and convincing evidence. The Staffords cannot both have and eat

their proverbial cake by arguing the very acts that define the scope of the

protections afforded by A.R.S. § 12-572(A) — screening and treatment —

remove Dr. Burns from its protections.

¶16 A broader interpretation is also consistent with the statute’s

purpose to provide a more inviting legal environment for emergency

medical providers, see Ariz. S. Fact Sheet, S.B. 1018 (1st Reg. Sess. Jun. 15,

2009) (noting the heightened burden of proof was recommended “to

address the state’s shortage of emergency and trauma physicians and the

6

STAFFORD v. BURNS et al.

Opinion of the Court

problem of access to emergency care”); Ariz. Emergency Med. Servs. Access

Task Force Rep., at 2-3, 15-16 (2006), https://www.acep.org/

content.aspx?id=5258, as well as the section heading adopted by the

legislature: “Burden of proof for treatment in emergency departments or

rendered by on-call providers,” see Bruce v. Charles Roberts Air Conditioning,

166 Ariz. 221, 225 (App. 1990) (noting that although section headings are

not part of the law, they may aid in interpreting otherwise ambiguous

language). Although the legislature certainly could have described the

extent of the liability protection contained within A.R.S. § 12-572(A)

without reference to EMTALA, as the Staffords suggest it should have, the

intent of the statute is clear, and the statutory language does not preclude a

reasonable interpretation consistent with that intent.

¶17 Finally, the Staffords argue A.R.S. § 12-572(A) does not apply

because they do not specifically reference EMTALA in their pleadings, they

have never asked for a determination whether Dr. Burns complied with —

or violated — EMTALA, and they have no direct right of action against Dr.

Burns for an EMTALA violation.6 These facts are irrelevant. The reference

to EMTALA within A.R.S. § 12-572(A) defines the scope of the liability

protection. Under the statute, the relevant inquiry is whether the acts or

omissions the plaintiff contends were deficient were provided in the course

of evaluating and treating a patient in a hospital emergency department.

That is clearly the case here, and the clear and convincing standard

articulated in A.R.S. § 12-572(A) applies. Accordingly, we find no error in

the trial court’s instructions to the jury regarding the burden of proof.

6 The Staffords cite Moses v. Providence Hospital & Medical Centers, Inc.,

561 F.3d 573 (6th Cir. 2009), and Roberts ex rel. Johnson v. Galen of Virginia,

Inc., 325 F.3d 776 (6th Cir. 2003), to support their argument that EMTALA

does not apply to their claims. In both cases, the Sixth Circuit Court of

Appeals held that stabilizing treatment is required only if the medical

providers “actually recognize that the patient has an emergency medical

condition.” Moses, 561 F.3d at 582-85; Roberts, 325 F.3d at 786-87. Those

holdings are relevant to whether a plaintiff can maintain a federal cause of

action for violation of EMTALA, but inapplicable to the question presented

here — whether the actions forming the basis of the Staffords’ civil

negligence claim were performed by Dr. Burns “in compliance with

EMTALA.”

7

STAFFORD v. BURNS et al.

Opinion of the Court

II. Jury Misconduct

¶18 The Staffords next argue they were entitled to a new trial

because Juror 10 violated the admonition not to discuss the case outside of

the jury room. We review a decision to deny a new trial based upon alleged

jury misconduct for an abuse of discretion. State v. Fitzgerald, 232 Ariz. 208,

210, ¶ 10 (2013) (quoting State v. Hall, 204 Ariz. 442, 447, ¶ 16 (2003)).

¶19 Throughout the twelve-day trial, the jurors were admonished

not to discuss the case outside of the jury room. At the end of the eleventh

day, the court reporter advised the trial court she had been in the elevator

with several jurors when she heard Juror 10 say “something like — if the

parameters were set at 11 to 24, why didn’t the alarm go off.” The court

reporter told the jurors not to talk about the case, and the conversation

ended. When questioned by the court, Juror 10 remembered making the

statement in the elevator and confirmed no other discussion occurred. He

denied having any other conversations about the case outside the jury

room. The Staffords were given an opportunity to question Juror 10 further

but declined to do so.

¶20 The Staffords did, however, move to excuse Juror 10 from

further service. After concluding the comment “d[id]n’t show that he’s

made up his mind, . . . [and was] the exact kind of thing [a juror] would say

in deliberations,” the trial court denied the motion. In denying the

Staffords’ motion for new trial on the basis of jury misconduct, the court

reiterated that:

while the court was upset with the jury upon receiving the

. . . information [regarding Juror 10’s elevator comment], after

interviewing the juror and learning the details and observing

the juror’s demeanor, the court concluded that the remark

was minor, did not influence the other jurors, and did not

indicate any predetermination of the issues by [J]uror 10.

¶21 The Staffords now argue Juror 10 “did not belong on the jury

panel” because his comment was “probably just the tip of the iceberg of his

misconduct — shamelessly committed in a public elevator in the presence

of three other jurors and the court reporter,” and because his conduct

reflects “he was either incapable of following instructions or was

deliberately obtuse and contrary.” The Staffords also suggest Juror 10 could

have assumed it was they who had discovered his misconduct, adding a

“‘get even’ motive to his proven penchant for ignoring the rules.”

8

STAFFORD v. BURNS et al.

Opinion of the Court

¶22 Not every violation of the court’s admonitions requires

dismissal of the juror involved, see State v. Trostle, 191 Ariz. 4, 13 (1997), and

the trial court is in the best position to determine the effect, if any, of a

juror’s misconduct, see Cota v. Harley Davidson, 141 Ariz. 7, 10 (App. 1984)

(citing State v. Reynolds, 11 Ariz. App. 532, 535 (1970)). The record reflects

only that Juror 10 made a single non-committal comment outside the jury

room and immediately discontinued the conversation when reminded to

do so. The court determined Juror 10’s comment was isolated and

innocuous and did not affect his ability to render a fair and impartial

verdict. We defer to that conclusion, particularly where, as here, there is no

evidence to the contrary. The Staffords have not demonstrated, beyond

mere speculation, that the comment or the proceedings that followed

affected Juror 10’s ability to be impartial.7 See Cota, 141 Ariz. at 10-11

(noting “sheer speculation” regarding the effect of purported jury

misconduct cannot serve as grounds for a mistrial).

¶23 That the trial court could have chosen to designate Juror 10 as

an alternate without disrupting the proceedings is of no consequence. The

record does not show Juror 10 individually, or the jury generally, was

biased because of Juror 10’s misconduct. The court did not abuse its

discretion in denying the Staffords’ requests.

III. Dr. Burns’ Testimony

¶24 At trial, evidence was introduced that Jesse died of

respiratory distress approximately thirty hours after he reportedly ingested

the methadone that caused him to present to the emergency room on

February 5, 2012. Dr. Burns testified she observed Jesse experience a mild

respiratory depression characteristic of methadone ingestion while he was

being treated in the emergency department and approved his discharge

only after his respirations returned to the normal range. Dr. Burns testified

7 The Staffords cite In re Hitchings, 860 P.2d 466, 477 (Cal. 1993), for the

proposition that violation of the juror admonition is “commonly regarded”

as serious misconduct that raises a presumption of prejudice. However

common it may be, this is not a correct statement of Arizona law. See Perez

v. Cmty. Hosp. of Chandler, Inc., 187 Ariz. 355, 360 (1997) (declining to adopt

strict rule of presumed prejudice in cases involving ex parte

communications with the jury); see also Trostle, 191 Ariz. at 12-13 (noting the

party challenging a juror’s inclusion on the panel bears the burden of

proving “there is reasonable ground to believe that [the juror] cannot

render a fair and impartial verdict”) (quoting Ariz. R. Crim. P. 18.4(b), and

citing State v. Lavers, 168 Ariz. 376, 390 (1991)).

9

STAFFORD v. BURNS et al.

Opinion of the Court

she had never seen, either in her education or clinical experience, any data

suggesting the respiratory effects occur as long as thirty hours after

ingestion, and, if they did, “pretty much anyone who’s taking methadone

at all would have to stay in the hospital.” Finally, Dr. Burns added:

[T]he biggest concern with methadone is people who take an

additional dose. . . . [Y]ou’re at higher risk of having

respiratory depressant [e]ffects when you take your second

dose because you still have some in the body. So then you’re

basically adding, almost like you’re stair-stepping on top of

that. So that’s the second dose is what is the most concerning.

¶25 The Staffords argue this testimony transformed Dr. Burns into

“a second, undisclosed causation expert willing to opine that a purely

hypothetical second dose of methadone at Jesse’s home contributed to his

death,” and the trial court erred in denying their motion for new trial on

this basis. See Ariz. R. Civ. P. 26(b)(4)(D) (“In all cases including medical

malpractice cases each side shall presumptively be entitled to only one

independent expert on an issue, except upon a showing of good cause.”);

Ariz. R. Civ. P. 26.1(a)(6) (requiring detailed disclosure regarding the

qualifications and anticipated testimony of an expert witness). Whether Dr.

Burns provided expert testimony in violation of Rules 26(b)(4)(D) or

26.1(a)(6) are questions of law, which we review de novo. See State v. Salazar-

Mercado, 234 Ariz. 590, 592, ¶ 4 (2014) (citing State v. Gutierrez, 229 Ariz. 573,

576, ¶ 19 (2012)); Solimeno v. Yonan, 224 Ariz. 74, 77, ¶¶ 9-10 (App. 2010).

¶26 The Staffords acknowledge they were timely advised that Dr.

Burns would provide expert testimony on the standard of care. The

testimony identified above was appropriate for that purpose. It provided

both an illustration of the extent of Dr. Burns’ knowledge of the relevant

area of medical practice and the basis for Dr. Burns’ opinion that she did

not violate the standard of care by discharging Jesse after he experienced

the anticipated effects of methadone ingestion within the anticipated

timeframe and his respirations returned to the normal range. Although Dr.

Burns did express concern of “re-ingestion” after observing Jesse’s

condition and mannerisms in a video taken twelve hours after his

discharge, she did not provide any opinion about what caused or

contributed to his death, despite repeated questioning on the issue from the

Staffords’ counsel.

10

STAFFORD v. BURNS et al.

Opinion of the Court

¶27 Dr. Burns did not testify as a causation expert and was not

required to make any additional disclosures; nor did she violate the one-

expert-per-issue presumption articulated in Rule 26(b)(4)(D). We find no

error.

IV. Expert Testimony Regarding Post Mortem Gastric Methadone

Levels

¶28 Before trial, the Staffords moved to preclude any expert

testimony extrapolating the timing of Jesse’s last methadone ingestion from

his post mortem gastric methadone levels, arguing the method was not

scientifically valid because of the way the drug redistributes in the body

after death. Counsel for Dr. Burns explained that the conclusion that Jesse

re-ingested methadone was based upon the significant amount of

methadone in his stomach, the rate the stomach empties, and the time that

passed between his discharge and death. The trial court denied the motion

and related request for evidentiary hearing after concluding the dispute

was simply a “difference of opinion” between the experts.

¶29 On appeal, the Staffords argue that admitting any testimony

based upon this “junk science” was error without holding a hearing

pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993),

to determine its reliability. We review the necessity of a hearing to resolve

a dispute in the admissibility of expert testimony for an abuse of discretion.

See Ariz. State Hosp./Ariz. Cmty. Prot. & Treatment Ctr. v. Klein, 231 Ariz. 467,

474, ¶¶ 31-32 (App. 2013) (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137,

152 (1999)).

¶30 Although the trial court may hold an evidentiary hearing to

evaluate proposed expert testimony, it is not required to do so. See id. Here,

both parties presented lengthy and detailed pleadings, cited supporting

medical literature, and attached affidavits containing the specific opinions

of their other disclosed medical and pharmacological experts. There is no

indication the court required additional information to make a decision on

the reliability of the methodology, and the Staffords do not articulate

otherwise in their briefs. We find no abuse of discretion.

V. Cocaine Metabolite

¶31 The Staffords also argue the trial court erred by allowing the

jury to hear evidence that a postmortem urine sample contained cocaine

metabolites because the evidence was unfairly prejudicial. Because the trial

court is in the best position to balance the probative value of challenged

evidence against the danger of unfair prejudice, we review for an abuse of

11

STAFFORD v. BURNS et al.

Opinion of the Court

discretion and will affirm absent a clear abuse of discretion or legal error

and prejudice. See State v. Salamanca, 233 Ariz. 292, 296, ¶ 17 (App. 2013)

(quoting State v. Connor, 215 Ariz. 553, 564, ¶ 39 (App. 2007)); Gasiorowski v.

Hose, 182 Ariz. 376, 382 (App. 1994) (citing Selby v. Savard, 134 Ariz. 222, 227

(1982)); see also Ariz. R. Evid. 403.

¶32 The trial court originally granted the Staffords’ motion in

limine precluding reference to the cocaine metabolite, agreeing the presence

of cocaine was irrelevant in the absence of some evidence that the cocaine

contributed to Jesse’s death. But after the court considered the Staffords’

evidence attempting to portray Jesse as a person who would not or could

not have re-ingested methadone after being discharged from the emergency

department, “giving the jury a pretty sanitized view of Jesse,” the court

reconsidered its ruling, explaining:

There’s been testimony that Ms. Stafford searched the house

for drugs before, that, you know, so far the alcohol bottles that

we saw [in Jesse’s room] were decorative items. What this

evidence would tend to show is that Jesse had been — had

been using drugs for some period of time and his parents

didn’t know, that he knew where to get drugs, that he knew

how to hide his use from his parents. All of those are

legitimate items for the jury to consider in determining

whether his death was caused by the methadone taken before

the hospital or whether he may have had access and used

methadone afterwards. . . . [T]he 403 balancing is a lot

different now that we’ve had two days of testimony than it

was before trial. And after listening to the testimony that’s

been presented so far, I think the permissible uses under 404

B of this evidence, that is to show . . . that Jesse knew where

to get drugs, that he knew how to hide drugs and hide drug

use from his parents. And those issues, I think, are directly

relevant to what the jury has to decide and they are

permissible under Rule 404 B.

The court limited the admissibility of the cocaine metabolite evidence to

those purposes and permitted the Staffords to recall their toxicologist to

address the issue on rebuttal. After the Staffords moved for

reconsideration, stressing the prejudicial nature of evidence of illegal drug

use, the court affirmed its ruling, reiterating that “after listening to the two

and a half days of testimony, the balancing has shifted considerably.”

12

STAFFORD v. BURNS et al.

Opinion of the Court

¶33 We find no abuse of discretion. The evidence was relevant to

rebut the testimony of the Staffords’ witnesses that Jesse did not, could not,

or would not have sought out additional methadone after his discharge

from the emergency department. And although evidence of drug use may

be prejudicial, the danger of prejudice was not so obviously unfair here,

where it is undisputed that Jesse had previously ingested methadone

illegally.

VI. Use of Dr. Burns’ Video Deposition

¶34 The Staffords argue the trial court erred by refusing to let

them play excerpts from Dr. Burns’ video deposition “when and how the

[Staffords] wanted to play them.” They do not elaborate on when or how

excerpts from Dr. Burns’ video deposition were used, when or how the

Staffords wished to use the video, how the court interfered with the

Staffords’ presentation, or how the court’s restrictions affected the verdict.

See ARCAP 13(a)(7)(A) (requiring an opening brief to contain “contentions

concerning each issue presented for review, with supporting reasons for

each contention . . . and appropriate references to the portions of the record

on which the appellant relies”). Because the Staffords failed to develop this

argument in a meaningful way, it is waived, and we do not address it. See

Polanco v. Indus. Comm’n, 214 Ariz. 489, 491 n.2, ¶ 6 (App. 2007) (noting a

party waives an issue on appeal when he fails to develop and support his

argument) (citations omitted).

VII. Judgment as a Matter of Law

¶35 The Staffords argue the trial court erred in denying their

motions for judgment as a matter of law that: (1) the immediate cause of

Jesse’s death was methadone intoxication, (2) the mechanism of death was

respiratory failure, and (3) the manner of death was accidental. Whether a

trial court should have granted judgment as a matter of law presents a

question of law, which we review de novo. A Tumbling-T Ranches v. Flood

Control Dist. of Maricopa Cty., 222 Ariz. 515, 524, ¶ 14 (App. 2009) (citing

Aegis of Ariz., L.L.C. v. Town of Marana, 206 Ariz. 557, 566, ¶ 34 (App. 2003)).

We also review de novo the interpretation and application of the Arizona

Rules of Civil Procedure. See Duckstein v. Wolf, 230 Ariz. 227, 231, ¶ 8 (App.

2012) (citing Vega v. Sullivan, 199 Ariz. 504, 507, ¶ 8 (App. 2001)).

¶36 Arizona Rule of Civil Procedure 50(a)(1) states:

If during a trial by jury a party has been fully heard on an

issue and there is no legally sufficient evidentiary basis for a

reasonable jury to find for that party on that issue, the court

13

STAFFORD v. BURNS et al.

Opinion of the Court

may determine the issue against the party and may grant a

motion for judgment as a matter of law against that party with

respect to a claim or defense that cannot under the controlling

law be maintained or defeated without a favorable finding on

that issue.

By its plain language, Rule 50 allows the trial court to enter judgment “with

respect to a claim or defense.” See also Salica v. Tucson Heart Hosp.-

Carondelet, L.L.C., 224 Ariz. 414, 417, ¶ 11 (App. 2010) (holding judgment as

a matter of law appropriate where “the facts produced in support of the

claim or defense have so little probative value, given the quantum of evidence

required, that reasonable people could not agree with the conclusion

advanced by the proponent of the claim or defense”) (emphasis added)

(quoting A Tumbling-T Ranches, 222 Ariz. at 524, ¶ 14).

¶37 Here, the Staffords did not request judgment on their claims

for medical malpractice or wrongful death; they simply asked the trial court

to remove from the jury, and instead resolve as a matter of law, particular

factual issues regarding the cause, mechanism, and manner of Jesse’s death.

Although seemingly undisputed, a substantive decision on these issues

would not resolve the Staffords’ claims that Dr. Burns was negligent, nor

quash Dr. Burns’ defense that Jesse’s death resulted from the re-ingestion

of methadone after discharge. Judgment as a matter of law is not available

to dispose of issues of fact that do not defeat a claim or defense, and the

court did not err in denying the Staffords’ motions.

VIII. Rule 68 Sanctions

¶38 Finally, the Staffords argue the trial court erred in imposing

sanctions pursuant to Arizona Rule of Civil Procedure 68(g) because the

$10,000 offer of judgment was invalid, as it was not made in good faith. We

review the interpretation and application of the offer of judgment rule de

novo. Berry v. 352 E. Va., L.L.C., 228 Ariz. 9, 15, ¶ 31 (App. 2011) (citing Levy

v. Alfaro, 215 Ariz. 443, 444, ¶ 6 (App. 2007)). We review the trial court’s

decision to impose Rule 68 sanctions for an abuse of discretion. Id. (citing

Hmielewski v. Maricopa Cty., 192 Ariz. 1, 4, ¶ 13 (App. 1997)).

¶39 A party may make an offer “to allow judgment to be entered”

in a civil case “any time more than 30 days before the trial begins.” Ariz. R.

Civ. P. 68(a). Rule 68(g) states:

If the offeree rejects an offer and does not later obtain a more

favorable judgment other than pursuant to this Rule, the

offeree must pay, as a sanction, reasonable expert witness fees

14

STAFFORD v. BURNS et al.

Opinion of the Court

and double the taxable costs, as defined in A.R.S. § 12-332,

incurred by the offeror after making the offer and

prejudgment interest on unliquidated claims to accrue from

the date of the offer.

The Staffords argue an offer of judgment must be “at least arguably

reasonable . . . compared with a lawsuit’s probable damages” to warrant

imposition of sanctions under Rule 68, and to hold otherwise impermissibly

allows the offeror to benefit from a “no-risk offer.” We disagree.

¶40 The Staffords rely on a Seventh Circuit Court of Appeals

decision, August v. Delta Airlines, Inc., 600 F.2d 699 (7th Cir. 1979), to support

their position. This case is not persuasive for several reasons. First, the

holding in August, allowing the trial court to exercise discretion whether to

allow a defendant to recover costs under Federal Rule 68, was specifically

limited to cases brought under Title VII of the Civil Rights Act of 1964, 42

U.S.C. §§ 2000e to e-17. See August, 600 F.2d at 700, 702 (“[W]e believe that

a liberal, not a technical, reading of Rule 68 is justified, at least in a Title VII

case. We need not decide whether this same approach should be taken in

other kinds of cases.”). In reaching its conclusion, the Seventh Circuit Court

of Appeals contraposed the plain language of the rule and the federal policy

of encouraging aggrieved individuals to seek redress for violations of their

civil rights, ultimately deciding “not . . . to permit a technical interpretation

of a procedural rule to chill the pursuit of that high objective.” Id. at 701.

No similar overarching goal is at issue in this tort action. Additionally,

Federal Rule of Civil Procedure 68 is materially different than the Arizona

correlate because it does not authorize an award of costs where judgment

is entered in favor of the defendant, as occurred in the immediate case. See

Fed. R. Civ. P. 68(a) (authorizing only “a party defending against a claim”

to make an offer of judgment), (d) (requiring the offeree to pay costs only if

he obtains a less favorable judgment than the defending party’s unaccepted

offer); Goldberg v. Pac. Indem. Co., 627 F.3d 752, 756-57 (9th Cir. 2010) (noting

Federal Rule 68 does not allow recovery where judgment is entered in favor

of the defendant).

¶41 Moreover, Arizona courts have uniformly held, consistent

with the rule’s plain language, that sanctions imposed by Rule 68(g) are

both mandatory and punitive. See Ariz. R. Civ. P. 68(g) (stating “the offeree

must pay, as a sanction, reasonable expert witness fees and double the

taxable costs”) (emphasis added); Arellano v. Primerica Life Ins., 235 Ariz.

371, 381, ¶ 48 (App. 2014); Levy, 215 Ariz. at 445, ¶ 8; Davis v. Disc. Tire Co.,

182 Ariz. 571, 573-74 (App. 1995). We are reluctant to stray from this plain

language. See Robertson v. Alling, 237 Ariz. 345, 347, ¶ 10 (2015) (“When a

15

STAFFORD v. BURNS et al.

Opinion of the Court

rule’s language is unambiguous, we apply it as written.”) (citing Salazar-

Mercado, 234 Ariz. at 592, ¶ 4). The Staffords urge us to do so as a matter of

public policy. However, we find the policy behind Rule 68(g) — to promote

settlement and avoid protracted, unnecessary litigation, see, e.g., Warner v.

Sw. Desert Images, L.L.C., 218 Ariz. 121, 138, ¶ 57 (App. 2008) (citing Wersch

v. Radnor/Landgrant-A Phx. P’ship, 192 Ariz. 99, 102 (App. 1997)) — will not

be served by judicially grafting additional requirements onto the offer. A

reasonableness requirement would only increase the cost of litigation by

inviting the expenditure of time to resolve an offer’s validity, driving the

parties’ settlement positions further apart. See Brown v. Valley Nat’l Bank of

Ariz., 26 Ariz. App. 538, 540-41 (1976) (“Public policy is better served by

encouraging settlements in proper cases rather than to encourage

continuing litigation in the courts.”) (quoting Broadway Plan v. Ravenstein,

364 S.W.2d 741, 744 (Tex. Civ. App. 1963)).

¶42 Ultimately, it is solely within the purview of the parties to

prudently evaluate their causes of action and defenses and the potential

risks and benefits of proceeding to trial. If the defendant/offeror

underestimates his exposure and the plaintiff/offeree obtains a more

favorable judgment — even by a single dollar — the offeror stands liable

for costs and expert witness fees. Likewise, if the plaintiff/offeror

exaggerates his likelihood of success by presenting an offer the other party

perceives as too high, the defendant/offeree need only work to obtain an

award of damages against him that is less than the offer — again, by a single

dollar. The offeror should not be punished for investing in the necessary

calculation to determine, correctly, the existence and extent of his financial

exposure at trial. Nor should the offeree benefit from his failure to properly

value a case or be permitted, after the verdict is returned, to argue either

what was “reasonable” so as to justify his refusal to accept the offer or,

alternatively, to make some belated and collateral assertion of what the jury

should have awarded.

¶43 Accordingly, we decline to impose a requirement that offers

of judgment be deemed reasonable before sanctions are imposed under

Rule 68(g). That other jurisdictions have held otherwise does not vitiate

Arizona’s interest in encouraging settlement, nor change our analysis.

16

STAFFORD v. BURNS et al.

Opinion of the Court

CONCLUSION

¶44 The trial court’s orders are affirmed.

AMY M. WOOD • Clerk of the Court

FILED: AA

17