Pipher v. Loo (3/10/2009)

March 20, 2009

Arizona Court of Appeals Division One Holds That Expert’s Opinion Based on Expert’s Own Experience in Field, Experience With Plaintiff’s Type of Injury, and Knowledge of Other Testimony in the Case Had Sufficient Foundation and Reliability to Be Admitted to Jury.

Dr. Loo gave Pipher dental treatment which required anesthesia.  During the treatment, Pipher suffered injury to his lingual nerve.  Pipher brought suit, alleging that Loo’s administration of anesthetic breached the standard of care and that his breach caused Pipher’s injury.  During trial, the court excluded from evidence two portions of Pipher’s causation expert’s videotaped testimony.  First, the court excluded the expert’s statement that, in his own dental practice, he followed the standard of care that Pipher’s standard-of-care expert described in earlier testimony.  Second, the court excluded the expert’s testimony that if Loo had followed the standard of care, then there would not have been injury to Pipher’s nerve.  In addition, the court overruled Pipher’s hearsay objection to the testimony of Loo’s standard-of-care expert.  After the jury returned a defense verdict, the court awarded Loo costs under Rule 68(d), Arizona Rules of Civil Procedure.  Pipher appealed the admission of Loo’s expert’s testimony, the exclusion of Pipher’s expert’s testimony, and the Rule 68 award.

Judge Irvine, writing for a unanimous court, affirmed the admission of Loo’s expert’s testimony, reversed the exclusion of some of Pipher’s expert’s testimony, vacated the judgment and the Rule 68 award, and remanded for a new trial.

Addressing the admission of Loo’s expert’s testimony first, the Court held that the trial court did not abuse its discretion in allowing the testimony.  Under Arizona Rule of Evidence 703, an expert may offer an opinion based on otherwise inadmissible information if that information is of a type reasonably relied upon by experts in the same field in forming opinions or inferences on the subject.  In his testimony, Loo’s expert relied on various sources to form his opinion, including his own laboratory research and clinical experience.  The Court rejected Pipher’s argument that the expert’s opinions were based on inadmissible hearsay.  Because no evidence suggested that the expert’s opinion was based on unreliable or untrustworthy sources, the Court held that the trial court was within its discretion to allow the testimony.

Turning to the exclusion of Pipher’s causation expert’s testimony, the Court first affirmed the exclusion of the expert’s testimony that he followed in his own practice the standard of care that Pipher’s standard-of-care expert had previously described.  The Court held that exclusion was in accordance with the rule Arizona medical malpractice cases that each side is presumptively limited to one independent expert on an issue, such as the definition of the standard of care.  Pipher already had an expert offer testimony on the standard of care; because Pipher did not show good cause for a second expert on the same issue, the trial court properly excluded that portion of the second expert’s testimony. 

The Court held, however, that it was improper to exclude the causation expert’s testimony that Pipher’s injury would not have occurred if Loo had followed the standard of care.  At trial, Loo objected because the testimony was about the standard of care, and, alternatively, because the expert’s opinion was speculative, lacked sufficient foundation, and had an inadequate basis under Arizona Rules of Evidence 702 and 703.  The Court rejected both arguments.  First, the Court reasoned that the expert’s discussion of the standard of care was merely a “predicate to his opinion that Dr. Loo’s violation of the standard of care caused Pipher’s injury.”  Thus, the testimony concerned causation and could not be excluded based on Loo’s first argument. 

Second, the Court concluded that the expert’s opinion was based on an adequate foundation and had sufficient basis to be presented to the jury.  Although no scientific study supported the expert’s opinion, the Court reasoned that the opinion was sufficiently reliable because it was based on extensive experience in the field and with the specific injury at issue.  Furthermore, an adequate foundation existed because the expert relied on the testimony of Pipher’s other expert witness and on Pipher’s personal description of Loo’s actions.  Quoting Logerquist v. McVey, 196Ariz. 470, 188, 1 P.3d 113, 131 (2000), the Court held that this was enough to survive the trial court’s “preliminary assessment of testimonial reliability.”  Remaining “questions about the accuracy and reliability” of the expert’s testimony “go to the weight and credibility of the witness’ testimony and are questions of fact.”  Id.  Thus, the trial court abused its discretion by excluding the expert’s opinion from the jury.  Because the error caused the exclusion of Pipher’s most important causation evidence, the Court vacated the judgment and remanded for a new trial.

Judge Irvine authored the opinion; Judges Orozco and Swann concurred.