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Englert v. Carondelet Health Network11/28/2000
es, including a new deadline for the disclosure of expert witnesses, or reconsider its disclosure sanction in light of the fact that the parties will have time to conduct discovery on the theory that Nurse Carr was comparatively at fault, see Rule 37(c), Ariz. R. Civ. P., and Rule 1(D) and (E), Ariz. Unif. R. P. Med. Malpractice, 17B A.R.S., we need not address the trial court's ruling on this pretrial discovery issue. See Vincelette v. Metropolitan Life Ins. Co., 968 P.2d 275, (Mont. 1998) ("Because we have remanded this case for a new trial, we presume that a new discovery schedule will be established and that the parties will have the opportunity to complete any discovery they consider necessary. Therefore, we deem it unnecessary to decide the discovery issues presented on appeal.").
CONCLUSION
The trial court's orders granting a new trial on all contested issues of liability and damages are affirmed.
JOSEPH W. HOWARD, Presiding Judge
CONCURRING:
M. JAN FLOREZ, Judge
ESPINOSA, Chief Judge, dissenting in part.
I concur with the majority on all issues except the propriety of the trial court's granting of a new trial on the issue of damages. Although, as the majority correctly notes, this is a matter within the trial court's discretion, Styles, I would find that discretion exceeded here because the liability and damages issues were in no way "inextricably intertwined." A partial retrial is appropriate when the issues are not interwoven and the possibility of prejudice is slight. See Styles, 185 Ariz. at 451-52, 916 P.2d at 1167-68; Martinez v. Schneider Enters., 178 Ariz. 346, 349, 873 P.2d 684, 687 (App. 1994). As the majority concedes, "the issues of liability and damages in a wrongful death action are generally distinct because recoverable damages are not based on the negligent act, but, rather, on the survivors' injuries 'resulting from the [decedent's] death.'" Supra, at . Such is this case. Carondelet's contention that the evidence of damages was separate and distinct from the evidence of liability and the comparative fault of the parties is borne out by the record. It is unfair to nevertheless require Carondelet to retry a valid and untainted damages verdict, particularly when it was not the party responsible for the conduct necessitating a new trial. See Winn.
Moreover, in her new trial motion, Englert asserted error only as to liability issues. She was therefore not entitled to relief from the damages judgment. See Ariz. R. Civ. P. 59(h) (if granted, new trial should be "only" on question "with respect to which the verdict or decision is found erroneous"). I would affirm the trial court's judgment only to the extent of granting Englert a new trial on the liability issues she contested.
PHILIP G. ESPINOSA, Chief Judge
Page 1 2 3 4 5 6 7 Arizona Personal Injury Attorneys
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