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Kuhn v. St. Joseph''s Hospital and Medical Center12/10/1998
. Mikel as a second causation expert because it found that his causation opinion was within the scope of his treatment of Plaintiff. Dr. Mikel's only treatment of Plaintiff was the emergency surgery that saved the life of Plaintiff and her son. The only testimony on the relationship between Dr. Mikel's treatment of Plaintiff and his causation opinion came from Dr. Mikel, and was as follows:
Q: "Did you form an opinion while you were in [surgery] as to what had caused the uterine rupture?"
A: "No, I was truly concentrating more on the situation rather than considering causation."
Q: "Did you ever think about that issue?"
A: "Certainly afterwards in the cool light of day."
Thus, the trial court's "scope of treatment" ruling was plainly erroneous because Dr. Mikel's causation opinion was a post-treatment reflection that was unrelated to the scope of treatment. This erroneous ruling gave Defendant a "win" in the one-upmanship game that Rule 1(D)(4) was designed to eliminate: For no good cause, the trial court allowed Defendant to call one more causation expert than Plaintiff.
Rule 1(D)(4) was intended to presumptively equalize the number of expert opinions, and it has been so applied since its inception. But the majority has turned the rule upside down by creating a presumptive inequality in favor of the party with the most opinions from treating physicians. In many cases, that interpretation of Rule 1(D)(4) will frustrate both the intent of the rule and the interests of Justice -- and it did so in this case, in my opinion.
As is to be expected, Defendant's final argument took good advantage of the fact that Defendant had two causation experts:
"I would submit, ladies and gentlemen, that when you consider the evidence . . . that you will conclude that what occurred here is as Dr. Mikel concluded, is as Dr. Rockwell concluded, this was what's called an idiopathic spontaneous uterine rupture. Both Dr. Mikel and Dr. Rockwell concluded that."
The facts here are comparable to those in another case where a party improperly evaded the presumptive equality of Rule 1(D)(4); we reversed in that case. See Styles v. Ceranski, 185 Ariz. 448, 453, 916 P.2d 1164, 1169 (App. 1996) (finding that plaintiff improperly elicited standard of care opinions from treating physicians who testified on damages).
The Rule 1(D)(4) error was not harmless in this case. Causation was the issue and Dr. Mikel was the unimpeachable expert. Dr. Mikel's causation opinion was brief, and it was by deposition, but he was the expert who knew the most about Plaintiff's uterus, and he was the expert whose surgical competence undisputably saved the lives of Plaintiff and her son, as she readily acknowledged.
Because Defendant was allowed to call Dr. Mikel as a causation expert in violation of Rule 1(D)(4) and the error was not harmless, the case should be reversed and remanded. (I concur on the Rule 26.1 issue and would affirm on Defendant's cross-appeal).
E. G. NOYES, JR., Judge
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