Santos v. Trolley

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

TANI L. SANTOS, Plaintiff/Appellant,

v.

TROLLEY ENTERPRISES, LLC d.b.a. RED ROCK MAGIC TROLLEY,
Defendant/Appellee.

No. 1 CA-CV 18-0584
FILED 10-24-2019

Appeal from the Superior Court in Coconino County
No. S0300CV201600196
The Honorable Cathleen Brown Nichols, Judge

AFFIRMED

COUNSEL

Swenson & Shelley PLLC, St. George, UT
By Kevin Dean Swenson
Counsel for Plaintiff/Appellant

Righi Fitch Law Group, PLLC, Phoenix
By Richard L. Righi, Benjamin L. Hodgson
Counsel for Defendant/Appellee
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MEMORANDUM DECISION

Judge David D. Weinzweig delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Joshua D. Rogers 1 joined.

W E I N Z W E I G, Judge:

¶1 Appellant Tani L. Santos (“Santos”) appeals the superior
court’s exclusion of her expert witnesses based on inadequate disclosure,
and entry of partial judgment as a matter of law for Appellee Trolley
Enterprises, LLC (“Trolley”) on her negligence claim. We affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Trolley runs sightseeing tours of Sedona in historical trolley
cars. Santos was a passenger on one tour in May 2014. She later sued
Trolley for negligence in April 2016, alleging she suffered injuries when
“the bench [she] was sitting [o]n broke,” causing her to fall backwards.

¶3 Santos served an initial disclosure statement on Trolley in July
2016 under Arizona Rule of Civil Procedure (“Rule”) 26.1, listing two
treating physicians, Dr. William Smith and Dr. Andrew Cash, as fact
witnesses. She further disclosed that she “ha[d] not yet retained an expert”
witness, but “may be expected to call any or all of [20 different] treating
physicians” as possible expert witnesses. Santos used the same general
description of anticipated testimony for each physician: “[i]t is expected
that [physician name] will testify regarding [the physician’s] examination
and treatment of [Santos], [ ] her condition,” and that “the treatment
rendered to [Santos] was medically necessary.” She expected six of them to
testify “that her condition and injuries were caused by the [ ] trolley
incident,” including Dr. Smith and Dr. Cash.

¶4 In March 2017, Santos identified 18 treating physicians as
expert witnesses, including Dr. Smith and Dr. Cash. Santos restated that
she had not “retained or specifically employed [any of the treating
physicians] to provide expert testimony in this matter and has not drafted

1 The Honorable Joshua Rogers, Judge of the Arizona Superior Court,
has been authorized to sit in this matter pursuant to Article VI, Section 3 of
the Arizona Constitution.

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any expert reports,” but disclosed that each of them “may . . . testify . . . to
a reasonable degree of medical probability that the subject incident caused
Plaintiff’s claimed injuries.” She provided no further expert disclosures.

¶5 Trolley moved in limine to preclude Santos from introducing
“any expert testimony or expert reports” from these treating physicians
because none of them had “offered an opinion or a report in this matter,”
Santos had not disclosed the substance or summary of their opinions,
identified their qualifications, or even described what the physicians had
reviewed in reaching their undisclosed opinions. Trolley also moved the
court to recognize that Dr. Smith and Dr. Cash may testify, but only as fact
witnesses. The superior court granted the motion in full, finding the
disclosures were inadequate under Rule 26.1 because they did not “give
any summary of the grounds for any expert opinions,” “state any grounds
for any of the purported experts’ opinions,” or “list or provide the[ir]
qualifications.”

¶6 Despite the preclusion order, Santos listed all 18 treating
physicians as witnesses in the parties’ joint pretrial statement, and
separately noticed the deposition of Dr. Cash and another treating
physician, Dr. Ravi Ramanathan. Trolley then moved to strike the
testimony of all treating physicians “in light of this Court’s prior ruling,”
and to restrict Dr. Smith and Dr. Cash to fact testimony. Trolley’s motion
was not decided before trial.

¶7 A jury trial was held in May 2018. After Santos presented her
evidence, Trolley moved for judgment as a matter of law. Among other
things, Trolley argued that Santos presented no evidence showing the
trolley incident caused her alleged injuries, aside from a “self-resolving soft
tissue ankle injury.” The court granted Trolley’s motion “with respect to
all of [Santos’] alleged injuries, except the ankle injury.” The jury later
returned a defense verdict, and Santos appealed following the entry of final
judgment. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(1).

DISCUSSION

I. The Court Did Not Abuse Its Discretion by Excluding Santos’
Purported Expert Witnesses.

¶8 Santos first challenges the court’s decision to exclude the
expert testimony of her treating physicians for inadequate pretrial
disclosure. Trial courts have broad discretion in determining whether
evidence has been properly disclosed and may be admitted at trial.
Solimeno v. Yonan, 224 Ariz. 74, 77, ¶ 9 (App. 2010). We review the court’s

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ruling on motions in limine and exclusion of expert testimony under an
abuse of discretion standard. Warner v. Southwest Desert Images, LLC, 218
Ariz. 121, 133, ¶ 33 (App. 2008); State ex rel. Montgomery v. Miller, 234 Ariz.
289, 297, ¶ 15 (App. 2014).

¶9 Arizona Rules of Civil Procedure require a meaningful
pretrial expert witness disclosure comprised of an expert’s name, address
and qualifications; the subject matter on which the expert is expected to
testify; the substance of the facts and opinions to which the expert is
expected to testify; a summary of the grounds for each opinion; a statement
of the compensation to be paid for the expert’s work and testimony in the
case; and a list of all cases in the past 4 years in which the witness testified
as an expert at a hearing or trial. Ariz. R. Civ. P. 26.1(d)(3).

¶10 The court did not abuse its discretion in finding that Santos
did not meet her minimum disclosure requirements. Santos only told
Trolley that several treating physicians “may . . . testify . . . to a reasonable
degree of medical probability that the subject incident caused [her] claimed
injuries.” She never disclosed the opinions of these treating physicians, the
“substance of the facts and opinions” to which they will testify, the grounds
for those opinions, how they were reached, what documents and
information they reviewed or explained their qualifications.

¶11 We reject any argument that Santos’ disclosures were good
enough and need not be “overly detailed.” The court excluded her expert
witnesses because she provided almost no disclosure, not based on an
“overly detailed” standard. Santos offered one general, meaningless
sentence to describe the potential anticipated testimony of 18 different
medical professionals. She never explains who will testify about what,
which doctors will address which injuries, and who will tackle causation.
See, e.g., Solimeno, 224 Ariz. at 78, ¶ 15 (affirming exclusion of expert witness
testimony based in part on “extremely general” disclosures).

¶12 Santos next contends the court misapplied the restriction of
“one expert per issue” under Rule 26(b)(4)(F)(i). Her threadbare
disclosures, however, prevented the court from reaching any other
conclusion—she lumped all her witnesses together without explaining who
will testify about what. We find no abuse of discretion. See Felder v.
Physiotherapy Associates, 215 Ariz. 154, 167-68, ¶¶ 66-70 (App. 2007) (trial
court ruling about “one expert per issue” rule is reviewed for an abuse of
discretion).

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¶13 Santos further argues that Trolley ignored the meet-and-
confer requirement under Rule 7.2(a). But Trolley’s counsel raised the
disclosure issue with Santos’ counsel in an email and Santos never
responded. Counsel also discussed the issue at other times. The court did
not abuse its discretion by considering the merits of Trolley’s motion.

¶14 And last, Santos argues the court committed reversible error
by precluding her treating physicians from testifying about causation,
pointing to State ex rel. Montgomery v. Whitten, 228 Ariz. 17 (App. 2011). At
issue in Whitten was how and when a treating physician should be
compensated for providing expert testimony in a criminal prosecution. Id.
at 20, ¶ 9. Whitten does not hold that treating physicians may offer
undisclosed expert testimony to show causation in civil negligence cases.
Id. at 22-23, ¶¶ 20, 23 (“Trial judges should . . . be vigilant, and, where
necessary, take steps to protect medical fact witnesses from improper
incursions into their expertise. Motions in limine may also be helpful in
resolving such matters.”). Whitten does not absolve Santos from meeting
her disclosure requirements; she never disclosed the substance or grounds
of the causation opinions. We find no abuse of discretion.

II. The Court Did Not Err in Granting Judgment as a Matter of Law
on Santos’ Non-Ankle Injury Claims.

¶15 Santos next maintains she presented enough evidence,
independent of the excluded expert testimony, to overcome Trolley’s
motion for judgment as a matter of law. We review the grant of a motion
for judgment as a matter of law de novo, viewing the facts and all reasonable
inferences in the light most favorable to the nonmoving party. Warner, 218
Ariz. at 130-31, ¶ 25. The “motion should be granted only if the facts
presented in support of a claim have so little probative value that
reasonable people could not find for the claimant.” Johnson v. Pankratz, 196
Ariz. 621, 623, ¶ 4 (App. 2000).

¶16 A negligence claim requires the plaintiff to prove four
elements: (1) a duty requiring the defendant to conform to the standard of
care, (2) the defendant’s breach of that standard, (3) a causal connection
between the defendant’s conduct and the resulting injury, and (4) actual
damages. Quiroz v. ALCOA Inc., 243 Ariz. 560, 563-64, ¶ 7 (2018). Trolley
conceded it owed a duty of care, and the court found adequate evidence of
breach.

¶17 We turn to causation. “In a cause of action for negligence,
plaintiff must show some reasonable connection between defendant’s act

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or omission and plaintiff’s damages or injuries.” Robertson v. Sixpence Inns
of America, Inc., 163 Ariz. 539, 546 (1990). Actual causation exists if the
defendant’s act “contributed to the final result and if that result would not
have occurred but for the defendant’s conduct.” Patterson v. Thunder Pass,
Inc., 214 Ariz. 435, 438, ¶ 13 (App. 2007). Causation generally presents
questions of fact for the jury unless reasonable persons could not conclude
that the plaintiff proved this element. Barrett v. Harris, 207 Ariz. 374, 378, ¶
12 (App. 2004). But judgment as a matter of law is appropriate if “plaintiff’s
evidence does not establish a causal connection, leaving causation to the
jury’s speculation, or where reasonable persons could not differ on the
inference derived from the evidence.” Robertson, 163 Ariz. at 546.

¶18 Santos claims she offered enough evidence of causation to
defeat Trolley’s motion, pointing to her testimony about (1) work history,
(2) her prior left knee and hip injuries, which she says “were fully resolved”
years before the incident at issue, (3) her claimed right hip, back and foot
injuries in this case, and (4) her “post-accident medical changes such as
increased medications and ‘tremendous’ changes to her physical activities.”
She also contends “[t]he start-up of treatment post-accident along with
additional medication could easily have been interpreted by the jury as
evidence that [her] accident-related injuries extended beyond her ankle,”
citing (1) her own testimony that she first saw her treating physicians after
the accident, and (2) an earlier Social Security Disability application that she
says “disclosed symptoms . . . [that] differ from those associated with the
accident.” Trolley counters that the jury heard this evidence.

¶19 But even accepting the evidence as true, Santos never
connects her alleged injuries to the trolley incident. See id. Indeed, she
admitted she did not seek any treatment until more than a week after the
incident. See Ontiveros v. Borak, 136 Ariz. 500, 504 (1983) (causation element
of negligence claim requires “[a] reasonably close causal connection
between the conduct and the resulting injury.”). And her individual
testimony about differences in pain or pain symptoms before and after the
incident represents only speculation that the trolley incident caused
anything beyond the stipulated-to ankle injury. See Flowers v. K-Mart Corp.,
126 Ariz. 495, 499 (App. 1980) (plaintiff’s testimony that a crosswalk would
have prevented the accident at issue insufficient because he was “not
qualified to render such an opinion.”).

¶20 Santos also generally cites the testimony of Rosemarie Nievez,
Dr. Cash and Dr. Ramanathan as purported causation evidence. But Nievez
only testified that Santos generally complained of pain after the incident;
she did not connect any of Santos’ particular complaints to the trolley

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incident. And while Dr. Cash and Dr. Ramanathan testified about their
treatment of Santos, neither offered any testimony about whether any of the
issues for which she sought treatment traced back to the trolley incident.

¶21 Santos also argues the court improperly weighed the
credibility of witnesses and resolved conflicts of evidence rather than allow
the jury to complete these tasks. This argument misses the mark, however,
because the JMOL decision here hinged on the absence of evidence rather
than the court’s affirmative assessment of evidence.

¶22 She likewise contends the court erred in excluding Dr. Smith’s
and Dr. Cash’s medical bills, citing the doctors’ testimony that their
treatments were reasonable and necessary. Whether their treatments were
reasonable and necessary to address Santos’ claimed injuries does not affect
whether those injuries resulted from the trolley incident. With no
testimony making that connection, the bills lacked foundation. See Larsen
v. Decker, 196 Ariz. 239, 243-44, ¶¶ 19-24 (App. 2000) (“To be relevant, . . .
the medical records must be linked to the issues in [the] case. If the records
and bills do not establish the necessary connection, other evidence may be
needed.”).

¶23 We find no reversible error. The court properly concluded
that no reasonable juror could have found on Santos’ evidence that she
established causation. Barrett v. Harris, 207 Ariz. 374, 378, ¶ 12 (App. 2004);
see also Purcell v. Zimbelman, 18 Ariz. App. 75, 82 (1972) (causation requires
“probable facts from which . . . causal relations may be reasonably
inferred.”).

III. The Court Properly Overruled Santos’ Collateral Source Rule
Objection.

¶24 Santos also contends the court erred in admitting her
testimony on cross-examination about the liens of her treating physicians
against her recovery, citing the collateral source rule. Generally, the
collateral source rule bars evidence of payments made or benefits conferred
on the injured party from other sources because they are not credited
against the tortfeasor’s liability. Lopez v. Safeway Stores, Inc., 212 Ariz. 198,
202, ¶ 13 (App. 2006) (quoting Taylor v. S. Pac. Transp. Co., 130 Ariz. 516, 519
(1981)). It aims to “prevent a tortfeasor from deriving any benefit from the
compensation or indemnity that an injured party has received from a
collateral source,” such as insurance. Id. at 206, ¶ 25 (quoting Acuar v.
Letourneau, 531 S.E.2d 316, 322 (Va. 2000)).

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¶25 Here, the only evidence suggesting Santos received benefits
or payments from a collateral source is her own testimony elicited by her
counsel on redirect. In any event, the fact that some treating physicians
agreed to accept payment from her eventual recovery does not implicate
the collateral source rule.

CONCLUSION

¶26 We affirm. Trolley may recover its taxable costs incurred in
this appeal upon compliance with ARCAP 21.

AMY M. WOOD • Clerk of the Court
FILED: AA

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