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Englert v. Carondelet Health Network11/28/2000
AFFIRMED
In this medical malpractice wrongful death case, appellants Dr. Randall Bennett and Carondelet Health Network challenge the trial court's post-verdict orders granting appellee Denise Englert a new trial. Dr. Bennett also challenges a pretrial, interlocutory order precluding him from arguing that a Carondelet nurse (Nurse Carr) was comparatively negligent. Because the trial court did not abuse its discretion, we affirm.
BACKGROUND
Dwight Englert and his wife, Denise, went to Carondelet's hospital's emergency room around midnight because Dwight felt pressure in his chest and pain radiating to his neck and ear. Dr. Bennett met with Dwight and Denise, examined Dwight, conducted tests, and diagnosed him as having esophagitis. Dr. Bennett sent Dwight home but prescribed Mylanta and instructed Dwight and Denise to return to the hospital if the pain recurred.
Approximately an hour and a half later, Denise called Nurse Carr at the hospital because Dwight's symptoms had returned. The nurse spoke to Dr. Bennett, who instructed her to tell Denise that Dwight should take another dose of Mylanta and, if his pain did not subside, that Dwight should return to the hospital. Dwight took a second dose of Mylanta and he and Denise went to bed. When Denise awoke, Dwight was unresponsive. After being rushed to the hospital, Dwight died that morning from a "sudden cardiac event" caused by "atherosclerotic cardiovascular disease."
Denise sued Dr. Bennett and Carondelet for Dwight's wrongful death from their alleged medical malpractice. A jury awarded her $280,000 in damages and apportioned ten percent of the fault to Dr. Bennett, seventy-five percent to the Englerts, and fifteen percent to a non-party physician. Denise then filed a motion for new trial, claiming she had been denied a fair trial because, over her objection, the court had allowed Dr. Bennett to argue an undisclosed affirmative defense in his closing argument: that the Englerts were comparatively at fault for withholding from Dr. Bennett information about Dwight's medical history. The trial court granted the motion for new trial, finding that Dr. Bennett's withholding of medical history theory was not disclosed before trial and that the court's erroneous decision to permit Dr. Bennett to argue that theory to the jury had affected Denise's rights. After Carondelet filed a motion for clarification, in which Dr. Bennett joined, the trial court specifically ordered that the new trial address all contested issues of liability and damages. This appeal followed.
NEW TRIAL
Dr. Bennett challenges, on several grounds, the trial court's decision to grant a new trial. The trial court has the discretion to grant a new trial when it has made a legal error or error in admitting evidence that materially affects a party's rights. Ariz. R. Civ. P. 59(a)(6), 16 A.R.S. Absent an abuse of that discretion, we will not interfere with a trial court's decision to grant a new trial on this basis. MacConnell v. Maricopa County Med. Society, 150 Ariz. 505, 506, 724 P.2d 591, 592 (App. 1986). "We review an order granting a new trial under a more liberal standard than an order denying one . . . ." State Farm Fire & Cas. Co. v. Brown, 183 Ariz. 518, 521, 905 P.2d 527, 530 (App. 1995).
The trial court found that it should have sustained Denise's objection to Dr. Bennett's withholding of medical history theory because that affirmative defense had not been disclosed before trial. A party is required to timely disclose its legal defenses and the factual bases for them, a "fair description" of each witness's expected testimony, and "the substance of the facts and opinions
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