Ryan v. San Francisco Peaks Trucking Co., Inc. – 8/25/2011

September 6, 2011

Arizona Court of Appeals Division One Holds that Defendant Alleging Non-Party at Fault May Rely on Plaintiff’s Expert Witness Affidavits to Establish Prima Facie Case of Non-Party’s Medical Malpractice.

Plaintiff’s husband died following a vehicle collision with a driver for a trucking company.  Plaintiff filed suit for negligence and wrongful death against the driver, the trucking company, and others involved in the collision.  She brought a separate wrongful death lawsuit alleging medical malpractice and other claims against certain medical providers who had treated her husband after the accident.  The cases were consolidated in the trial court.

Plaintiff reached a partial settlement and dismissed with prejudice the claims against the medical providers.  The trucking company (“SFP”) filed a notice designating the dismissed defendants as nonparties at fault. 

Plaintiff sought to preclude SFP from using statements in Plaintiff’s pleadings and discovery disclosures as affirmative evidence in support of the nonparty-at-fault allegations.  The trial court ruled that SFP could not compel the Plaintiff’s experts to testify or provide additional evidence, but that SFP could rely on the expert opinion affidavits and other documents previously disclosed by the Plaintiff. 

Plaintiff later moved for summary judgment, arguing that SFP could not present a prima facie case of negligence against the nonparties because SFP had not come forward with a medical standard-of-care expert witness.  The trial court granted SFP’s motion to strike, effectively ruling that SFP could rely on the Plaintiff’s preliminary expert affidavits as prima facie evidence in support of SFP’s nonparty-at-fault designations.        

At trial, SFP cross-examined Plaintiff regarding her prior allegations against the medical providers in her complaint and her preliminary expert affidavits.  The jury was instructed on comparative fault but returned a general verdict in favor of SFP.  Plaintiff appealed.

The Court of Appeals affirmed.  The trial court did not err by allowing SFP to introduce and rely on the Plaintiff’s expert affidavits at trial.  Plaintiff’s disclosures were not hearsay but were admissions of a party-opponent pursuant to Rule 801(d)(2) of the Arizona Rules of Evidence.  As “evidentiary” admissions, but not “judicial” admissions, the statements were admissible but not conclusive as to fault.  They could also be used for the purpose of impeachment, and as prior inconsistent statements of Plaintiff regarding the extent of the nonparties’ fault.    

Because a nonparty’s comparative fault is an affirmative defense, a defendant has the burden to prove the nonparty’s fault.  In a medical malpractice case, a party alleging malpractice must prove the medical provider(s) fell below the standard of care and thereby proximately caused the claimed injury.  This showing typically requires “expert medical testimony.”  Such testimony, however, may be in the form of an expert affidavit, provided that the affidavit is admissible under the rules of evidence and satisfies the elements of a medical malpractice claim.  The trial court therefore did not err by permitting SFP to present its nonparty-at-fault defense at trial on the basis of the Plaintiff’s affidavits.

Judge Brown authored the opinion; Presiding Judge Johnsen and Judge Gemmill concurred.

Practice Pointer:  A party that wishes to preserve a summary judgment issue for appeal after trial generally must reassert the issue during or after trial in a Rule 50 motion for judgment as a matter of law or other motion.  An exception exists, however, if the denial of the motion for summary judgment is based on a purely legal issue, for which the facts are immaterial.  Here, the Court of Appeals reviewed the summary judgment ruling despite the Plaintiff’s failure to reassert the issue during or after the trial, because the ruling presented a purely legal issue.