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Soto v. Brinkerhoff8/31/1995
ndermine the rule's primary purpose of identifying "for the plaintiff any unknown persons or entities who may have caused the injury in time to allow the plaintiff to bring them into the action before the statute of limitations expires." LyphoMed , 172 Ariz. at 428, 837 P.2d at 1163. That opportunity was foreclosed here, however, by appellees' untimely discovery and identification of Dr. Dawson as a nonparty at fault, thus depriving Soto of 10 percent of her recovery.
SUBMITTING DR. DAWSON'S FAULT TO JURY
Soto next contends that the evidence was insufficient to submit the issue of Dr. Dawson's fault to the jury. In light of our holding above, this contention is moot and need not be further addressed.
NEW TRIAL OR ADDITUR
Soto finally contends that the trial court erred in denying her motion for new trial or additur, arguing that fault should not have been apportioned to either Dr. Dawson or MLH. We agree as to Dr. Dawson, for the reasons stated above, but disagree as to MLH because Soto invited any error in submitting the issue of MLH's fault to the jury. While the court was settling instructions and after it had ruled that Dr. Dawson's fault would be submitted to the jury, Soto's counsel requested that MLH "be included as a nonparty at fault because the court has already stated that Dr. Dawson would be included."
Although Soto acknowledges that her request constitutes invited error, she nonetheless argues that the court erred in giving the instruction because of "the lack of sufficient evidence of fault by MLH." In support of her argument, Soto cites Walter v. Simmons, 169 Ariz. 229, 818 P.2d 214 (App. 1991), in which Division One of this court held that even though a party invites the giving of an erroneous instruction, the trial court may nevertheless grant a new trial when (1) there is absolutely no evidence to support the instruction, (2) the court may have caused the error, and (3) a new trial is necessary to prevent a miscarriage of Justice. The first condition is absent here, however, because the record is not totally devoid of evidence to support the instruction. In fact, Soto's counsel argued that sufficient evidence supported the instruction when requesting that it be given.
[SOTO'S COUNSEL]: Obviously, as a matter of strategy, I feel like [appellees] were pointing the finger [at MLH], and certainly by implication, they were . . . using Dr. Brinkerhoff to establish that, and he testified that he didn't have [the hospital lab report] in his box, and he noticed that when the litigation started. When he looked at his records, it wasn't in his records, so he assumed it wasn't in his box. And he testified [at trial] consistent with his deposition that he believes that that was fault on the part of .
Walter is therefore inapposite and the trial court properly denied the motion for new trial or additur as to MLH.
For the foregoing reasons, we reverse only the trial court's order denying Soto's motion for new trial or additur as to Dr. Dawson. Rather than remand for a new trial, however, and pursuant to the parties' agreement on appeal, we reapportion fault on a pro rata basis as follows: Soto 22.2% (2/9), appellees 55.6% (5/9), and MLH 22.2% (2/9). The matter is therefore remanded to the trial court to amend the judgment accordingly.
WILLIAM E. DRUKE, Chief Judge
CONCURRING:
JAMES D. HATHAWAY, Judge
JOHN F. KELLY, Judge
Judges Footnotes
Page 1 2 3 4 Arizona Personal Injury Attorneys
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