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Monaco v. Healthpartners of Southern Arizona6/29/1999
istence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Ariz. R. Evid. 401. See also 2 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence ยง 407.04 (Joseph M. McLaughlin ed., 2d ed. 1999) (admissibility of subsequent remedial measures on issues other than culpability governed by relevancy rules). Finally, by specifically prohibiting a "sending-the-message argument," the trial court adequately addressed appellants' concern that the Monacos' attorney might make such an argument to the jury.
Closing Argument
Appellants contend the Monacos' attorney violated the court's prohibition by arguing as follows to the jury.()
Dr. Ramanna said she felt terrible about [what happened]. She said she breached her duty to her patient. Mr. Slutes still wants to argue, well, she is looking at hindsight. She feels bad, so she really did not do anything wrong. I am sorry, it was wrong. It was wrong. Mr. Monaco suffered.
Tucson Medical Center is not what it used to be. Tucson Medical Center is owned by something called Healthpartners. Healthpartners manages it, Healthpartners owns it. Dr. Ramanna works for them. Healthpartners is responsible for the acts of its employees, and those employees are all the way from Elizabeth Ulmer [office associate] to Mary Schemmer [manager of Nuclear Medicine] to Dr. Ramanna, to people in Risk Management, to everybody else over there. That's where the fault lies. Some tighter controls need to be exercised. Needed to be exercised over there.
Now, Dr. Ramanna was brought in as the head of the Department, and Dr. Ramanna--I am not saying Dr. Ramanna is not a qualified physician, I happen to think she is quite a nice person. But let me suggest to you, if you look at Dr. Ramanna's resume, you are looking at someone who is very, very, very busy, and very, very well traveled. And I would suggest to you, and I would suggest to Healthpartners, that some of the energy that is used in creating or developing a resume like this could be put into putting in controls and putting in safeguards and precautions at the Nuclear Medicine Department where the patients come to be treated. That is where the energy needs to be put in.
On appeal, appellants assert that this portion of the closing argument told the jury "it should send a message to TMC to improve its procedures." Taken as a whole, however, we believe the argument was intended to convince the jury that appellants were negligent or at "fault" in treating Monaco with P32 and that they could have prevented the "wrong" with proper "controls" and "safeguards." Moreover, even if we assume the argument implicitly urged the jury to send TMC a message, appellants failed to object to the argument and have therefore waived the issue on appeal. See Grant v. Arizona Public Service Co., 133 Ariz. 434, 652 P.2d 507 (1982); Liberatore v. Thompson, 157 Ariz. 612, 760 P.2d 612 (App. 1988); Maxwell v. Aetna Life Ins. Co., 143 Ariz. 205, 693 P.2d 348 (App. 1984). Prompt objection allows the trial court to "impose restraints upon counsel once it appears that argument is proceeding past legitimate boundaries." Grant, 133 Ariz. at 453, 652 P.2d at 526.
Appellants nonetheless claim they challenged the propriety of the argument at the first opportunity in their motion for new trial. The record belies this claim. Appellants' counsel readily objected to an earlier portion of the closing argument by the Monacos' attorney and promptly stated two objections to his rebuttal argument. Consistent with Grant, the trial court cautioned the jury appropriately on the first two objections and susta
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