Clemens v. Dmb

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT
PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

TODD CLEMENS, Plaintiff/Appellant,

v.

DMB SPORTS CLUBS LIMITED PARTNERSHIP, dba Camelback Village
Racquet and Health Club; DMB MANAGEMENT COMPANY; JAMES
KOOP, D.C., Defendants/Appellees.

No. 1 CA-CV 14-0645
FILED 12-8-2015

Appeal from the Superior Court in Maricopa County
No. CV2012-012780
The Honorable Arthur T. Anderson, Judge

AFFIRMED

COUNSEL

The Law Offices of David W. Dow, Phoenix
By David W. Dow
Counsel for Plaintiff/Appellant

Grasso Law Firm, P.C., Chandler
By Robert Grasso, Jr., Kim S. Alvarado
Counsel for Defendants/Appellees DMB Sports Clubs Limited Partnership &
DMB Management Company

Renaud Cook Drury Mesaros, P.A., Phoenix
By Carol M. Romano, Kelli K. Williams
Counsel for Defendant/Appellee James Koop, D.C.
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Decision of the Court

MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Jon W. Thompson joined.

W I N T H R O P, Judge:

¶1 Todd A. Clemens (“Clemens”) appeals the superior court’s
judgment in favor of James Koop, D.C. (“Dr. Koop”) and DMB Sports Clubs
Limited Partnership and DMB Management Company (collectively,
“DMB”). For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 On September 2, 2010, Clemens was working out at DMB’s
gym using the seated abdominal machine when the weight-bearing
mechanism caught, forcing Clemens back into the head-and-neck pad.
Clemens left the weight room and sat down outside the program director’s
office, where a trainer passing by asked how he was doing. Clemens told
the trainer what happened, and the trainer suggested he get an ice
treatment at the spa. Clemens went to the spa area and asked for an ice
treatment. In response, the receptionist asked Clemens if he would like to
see the chiropractor. Clemens chose to see the chiropractor, Dr. Koop, who
provided chiropractic treatment and sent Clemens home to rest.

¶3 Four days later, Clemens went to an urgent care center, which
directed him to a hospital emergency department. At the hospital, Clemens
complained of neck pain and a headache. Hospital testing showed Clemens
had a brain hemorrhage.

¶4 Clemens filed suit against Dr. Koop and DMB, alleging DMB
failed to supervise his use of DMB’s abdominal machine and that, while
using the machine, he suffered a traumatic brain injury, which Dr. Koop
and DMB failed to recognize and Dr. Koop exacerbated by failing to refer
him for appropriate medical treatment. Clemens brought personal injury
and medical negligence claims against Dr. Koop, and personal injury,
breach of contract, and negligent hiring, retention, or supervision claims
against DMB.

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¶5 Clemens disclosed twenty-three expert witnesses in support
of his claims—none of them causation experts. Clemens did not disclose a
causation expert by the expert disclosure deadline.

¶6 At deposition, Clemens’ standard of care expert, Mark F.
Sutton, D.C. (“Dr. Sutton”) confirmed he was only asked to render opinions
about standard of care. However, Dr. Sutton testified that Dr. Koop’s
failure to meet the standard of care “likely resulted in physical harm,”
which Dr. Sutton described as “the subsequent injuries that Mr. Clemens
apparently suffered as a result of the head trauma.” Dr. Sutton then
admitted both that Clemens’ attorney told him Clemens hit his head
causing a brain hemorrhage and that he had not reviewed any medical
records except for those generated by Dr. Koop. Dr. Sutton ultimately
testified he did not know what happened to Clemens and could not give an
opinion whether “physical harm was caused” to Clemens.

¶7 Shortly before trial, both Dr. Koop and DMB moved for
summary judgment. At oral argument on the motions, because the parties
had differing views regarding the extent to which Dr. Sutton’s testimony
established causation, the court asked pointed causation questions:

THE COURT: All right. Now, as I understand, no healthcare
provider, either someone who treated Mr. Clemens or Dr.
Sutton or otherwise, has opined that the hemorrhage resulted
from the head trauma at the club or developed due to a failure
to refer Clemens for head trauma evaluation.

[DR. KOOP’S COUNSEL]: That’s correct.

[CLEMENS’ COUNSEL]: That’s essentially true, Your Honor.

THE COURT: All right. And no healthcare provider has
linked any of his headaches or cognitive deficits -- deficits or
damage to -- to this hemorrhage.

[DR. KOOP’S COUNSEL]: Correct.

[CLEMENS’ COUNSEL]: Correct, Your Honor. I mean, he --
he’s just sort of globally damaged, and we’ve never tried to
major focus on it.

¶8 After considering the evidence and argument presented, the
superior court found as follows:

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There is no medical testimony that links the Club
incident to the hemorrhage or to any damage of Clemens.
Ironically, while Plaintiff argues that the sequence of events
alone presents a “res ipsa” situation, no healthcare opinion has
been tendered to support the theory that the hemorrhage was
caused by the incident or that delay increased the risk of
harm.

¶9 The superior court granted Dr. Koop’s motion for summary
judgment, dismissed all claims against DMB,1 denied DMB’s motion for
summary judgment as moot, and entered judgment for both Dr. Koop and
DMB. Clemens timely appealed, and we have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) section 12-2101(A)(1) (Supp. 2015).

ANALYSIS

¶10 Clemens argues the superior court erred in finding no
evidence of causation and in granting summary judgment in favor of Dr.
Koop.2 We review de novo whether the superior court properly entered
summary judgment. Awsienko v. Cohen, 227 Ariz. 256, 258, ¶ 7, 257 P.3d 175,

1 It is unclear why the superior court chose to summarily dismiss the
claims against DMB rather than consider the merits of DMB’s summary
judgment motion. However, we “must determine whether the judgment,
not the reasoning, of the superior court was correct.” Picaso v. Tucson
Unified Sch. Dist., 217 Ariz. 178, 181, ¶ 9, 171 P.3d 1219, 1222 (2007) (citation
omitted).

2 Although Clemens also appeals the judgment in favor of DMB, and
argues “[t]he dismissal of the other defendants based on the dismissal of
Appellee Koop should also be reversed,” Clemens does not develop this
argument in his opening brief. In his reply brief, Clemens states his own
testimony regarding DMB’s apparent knowledge of “a possible head injury
due to the incident on the machine,” and subsequently “[s]ending”
Clemens to see Dr. Koop, makes DMB responsible for his injuries. Clemens
then also requests that we “strike” from DMB’s brief the arguments
concerning the sufficiency of the evidence as to all claims against DMB.
Clemens has not made clear what he is arguing on appeal as to DMB;
consequently, he has waived any argument concerning the dismissal of all
claims against DMB. See ARCAP 13(a)(7); Carrillo v. State, 169 Ariz. 126,
132, 817 P.2d 493, 499 (App. 1991) (“Issues not clearly raised and argued on
appeal are waived.” (citation omitted)). Thus, we only address the
propriety of the summary judgment award in Dr. Koop’s favor.

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177 (App. 2011). In our review, we view the evidence in the light most
favorable to Clemens, against whom the superior court entered judgment.
See id. Summary judgment is proper when “there is no genuine dispute as
to any material fact and the moving party is entitled to judgment as a matter
of law.” Ariz. R. Civ. P. 56(a).

¶11 A plaintiff in a negligence action must prove causation.
Purcell v. Zimbelman, 18 Ariz. App. 75, 82, 500 P.2d 335, 342 (1972).
Causation is a question for the jury “unless reasonable persons could not
conclude that a plaintiff had proved this element.” Barrett v. Harris, 207
Ariz. 374, 378, ¶ 12, 86 P.3d 954, 958 (App. 2004). A plaintiff may prove
proximate causation by presenting facts from which a causal relationship
may be inferred, but the plaintiff cannot leave causation to the jury’s
speculation. Robertson v. Sixpence Inns of Am., Inc., 163 Ariz. 539, 546, 789
P.2d 1040, 1047 (1990). Where a plaintiff has insufficient evidence of
causation, summary judgment is appropriate. See id.

¶12 In the ordinary negligence case, a plaintiff must prove
causation by a probability standard. Benkendorf v. Advanced Cardiac
Specialists Chartered, 228 Ariz. 528, 530, ¶ 8, 269 P.3d 704, 706 (App. 2012).
In a limited class of cases relying on the “loss of chance” theory of causation,
a plaintiff only needs to show that negligence “increased the risk” of harm
in order for the jury to decide probable causation. Thompson v. Sun City
Cmty. Hosp., Inc., 141 Ariz. 597, 605-08, 688 P.2d 605, 613-16 (1984).

¶13 Clemens argues Dr. Koop’s testimony that “the faster [a
person suffering a traumatic brain injury] receive[s] treatment, the better
the outcomes” and Dr. Sutton’s testimony that Dr. Koop deviated from the
standard of care together provide sufficient evidence that the delay in
referring Clemens for appropriate medical treatment exacerbated Clemens’
injury—thus bringing Clemens’ claims within the ambit of the “loss of
chance” class of cases.

¶14 Under the “loss of chance” doctrine, the relaxed showing
necessary to get the issue of causation before the jury applies only to “the
limited class of cases in which defendant undertook to protect plaintiff from
a particular harm and negligently interrupted the chain of events, thus
increasing the risk of that harm.” Thompson, 141 Ariz. at 608, 688 P.2d at
616. Clemens, however, does not argue that Dr. Koop negligently
interrupted a chain of events, which increased the risk of harm and
deprived Clemens of a “loss of chance” at a better outcome. Thus, in this
ordinary negligence case, Clemens must offer sufficient evidence of
probable causation to defeat summary judgment. See Robertson, 163 Ariz.

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at 546, 789 P.2d at 1047. This he did not do. Dr. Sutton conceded he did not
know what happened to Clemens. And Dr. Koop’s testimony that “the
faster [a person suffering a traumatic brain injury] receive[s] treatment, the
better the outcomes,” was in response to a general question about treatment
for traumatic brain injuries and did not specifically link Clemens’ alleged
injuries with any act or omission by Dr. Koop. As such, Dr. Koop’s
testimony does not provide the requisite causal link.

¶15 Clemens argues “a lay person could easily determine that the
failure to obtain medical care for a brain hemorrhage would cause an
increased risk and increased injury.” He further argues his own testimony
that he told the DMB trainer he didn’t “feel very well” and explained “what
had happened in the weight room” is “sufficient evidence to show that the
injury to [his] head could be tied to the injury at DMB Sports Club while
using the exercise equipment.” We reject these arguments.

¶16 Where a plaintiff alleges physical injury damages, such as
here, the plaintiff must prove the cause of those physical injury damages
through expert medical testimony, “unless a causal relationship is readily
apparent to the trier of fact.” Gregg v. Nat’l Med. Health Care Servs., Inc., 145
Ariz. 51, 54, 699 P.2d 925, 928 (App. 1985) (citation omitted); see also
Kreisman v. Thomas, 12 Ariz. App. 215, 218, 469 P.2d 107, 110 (1970) (stating
that the parties agreed expert medical testimony was necessary to prove
whether a customer’s severe ear infection was caused by a hearing aid
dealer’s alleged negligence in not properly adjusting the customer’s hearing
aids).

¶17 Although we agree a lay person can easily understand that a
delay in treatment for a brain hemorrhage could cause increased risk for
injury, it is not readily apparent to a lay person that any act or omission by
Dr. Koop caused Clemens’ alleged injuries. Expert medical testimony is
required to prove this causal connection. See Gregg, 145 Ariz. at 54, 699 P.2d
at 928. In the absence of such evidence from the record, Clemens’ claims
fail as a matter of law. Thus, we affirm summary judgment in favor of Dr.
Koop and the judgment in favor of DMB.

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CONCLUSION

¶18 For the foregoing reasons, we affirm. In our discretion, we
deny DMB’s request for attorneys’ fees pursuant to A.R.S. § 12-341.01(A)
(Supp. 2015); however, we award DMB and Dr. Koop their taxable costs
upon compliance with Rule 21, ARCAP.

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