NOVALIS-MARINE v. MONASH

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CHERYL NOVALIS-MARINE, et al.,
Plaintiffs/Appellees/Cross-Appellants,

v.

JEFFREY B. MONASH, et al.,
Defendants/Appellants/Cross-Appellees.

No. 1 CA-CV 24-0714
FILED 07-09-2026

Appeal from the Superior Court in Pima County
No. C20202716
The Honorable Wayne E. Yehling, Judge

AFFIRMED

COUNSEL

Jones, Skelton & Hochuli P.L.C., Phoenix
By Rita J. Bustos (argued)
Co-Counsel for Defendants/Appellants/Cross-Appellees

Slutes, Sakrison & Rogers P.C., Tucson
By Tom Slutes, Monika Kozan
Co-Counsel for Defendants/Appellants/Cross-Appellees

McNamara Law Firm, PLLC, Tucson
By Michael F. McNamara, Claire E. McNamara
Co-Counsel for Plaintiffs/Appellees/Cross-Appellants
 NOVALIS-MARINE, et al. v. MONASH, et al.
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The Ammons Law Firm LLP, Houston, TX
By Robert E. Ammons
Co-Counsel for Plaintiffs/Appellees/Cross-Appellants

The Newsome Law Firm, PLLC, Bellaire, TX
By Raina Spielman Newsome
Co-Counsel for Plaintiffs/Appellees/Cross-Appellants

Gallagher & Kennedy, P.A., Phoenix
By Shannon L. Clark (argued), Erin T. Jenkins
Co-Counsel for Plaintiffs/Appellees/Cross-Appellants

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MEMORANDUM DECISION

Judge Brian Y. Furuya delivered the decision of the Court, in which
Presiding Judge Angela K. Paton joined. Judge Daniel J. Kiley dissented.

F U R U Y A, Judge:

¶1 Dr. Jeffrey B. Monash (“Dr. Monash”) appeals the superior
court’s judgment entered after a jury verdict in favor of Cheryl Novalis-
Marine (“Novalis-Marine”) and her two children in this wrongful death
and medical malpractice case. Novalis-Marine cross-appeals the court’s
decision to grant a directed verdict denying punitive damages. For the
following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Dr. Monash performed bariatric surgery on Jeremey Marine
(“Marine”) on January 13, 2020. After the surgery, Marine “was in extreme
pain” and “wasn’t doing well.” Dr. Monash discharged Marine five days
later to recover at home.

¶3 On January 24th, Marine had a post-discharge visit with Dr.
Monash. During that visit, Marine required a wheelchair, was “turn[ing]
kind of light gray and pale[,]” and had a distended abdomen. After
determining that Marine was severely dehydrated, Dr. Monash ordered
Marine to go to the emergency room but did not meet Marine there. When
Dr. Monash arrived the next morning, he examined Marine and ordered a
CT scan, but later told Marine that the scan “was useless” because they did
not do the contrast correctly. The following day, on January 26th, Dr.
Monash ordered an upper gastrointestinal study and informed Marine that
because the test showed no leakage, he would be discharged. At this point,
though, Marine was still very weak, barely talking, and had a remarkably
distended abdomen. Marine passed away the next evening from sepsis, just
two weeks after his surgery.

¶4 In June 2020, Novalis-Marine, Marine’s wife, brought a
wrongful death and medical malpractice suit against Dr. Monash1, alleging
his negligence during Marine’s care caused Marine’s death. After more than

1 Novalis-Marine also named Tucson Medical Center (“TMC”) as a
defendant, but TMC settled and is not a party to this appeal.

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three years of pre-trial proceedings, a twelve-day jury trial was held in early
2024. Near the end of trial, Dr. Monash moved for a mistrial and filed a
motion pursuant to Arizona Rule of Civil Procedure (“Rule”) 50 for directed
verdict denying Novalis-Marine’s claim for punitive damages. The court
denied the motion for a mistrial but granted the directed verdict. The jury
ultimately found in favor of Novalis-Marine and awarded her $2.5 million
and her children $500,000. Dr. Monash subsequently moved for a new trial,
which the court denied.

¶5 Dr. Monash timely appealed and Novalis-Marine timely
cross-appealed. We have jurisdiction pursuant to Article 6, Section 9 of the
Arizona Constitution and Arizona Revised Statutes (“A.R.S.”) Section
12-2101(A)(1).

DISCUSSION

¶6 Dr. Monash argues the court erred by (1) admitting evidence
of his general impairment due to chronic substance abuse and sleep
deprivation, (2) admitting evidence of his treatment of previous patients
and their mortality rates, (3) allowing duplicative and cumulative expert
testimony, (4) providing two improper jury instructions, and (5) denying
him a fair trial through cumulative errors. Novalis-Marine cross-appeals
and argues the court erred by granting a directed verdict denying punitive
damages.

¶7 We note that in her notice of cross-appeal, Novalis-Marine
raised a second issue on the constitutionality of A.R.S. Section 12-352.
Because this issue was not argued in the cross-appeal opening brief, it is
waived and we do not address it further. State v. Carver, 160 Ariz. 167, 175
(1989) (“Failure to argue a claim usually constitutes abandonment and
waiver of that claim.”).

I. The Court Did Not Err in Admitting General Impairment
Evidence.

¶8 We review both evidentiary rulings and denial of a mistrial
for abuse of discretion and “will not reverse unless unfair prejudice resulted
or the court incorrectly applied the law.” Larsen v. Decker, 196 Ariz. 239, 241
¶ 6 (App. 2000) (citation modified); see also Cervantes v. Rijlaarsdam, 190 Ariz.
396, 398 (App. 1997). “We view the facts and the reasonable inferences
therefrom in the light most favorable to upholding the jury’s verdict[].”
Valdez v. Delgado, 254 Ariz. 495, 497 ¶ 3 (App. 2019). We also accept the
court’s factual findings unless clearly erroneous, In re Isler, 233 Ariz. 534,
537 ¶ 3 (2014), and “[w]e do not reweigh evidence or determine the

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credibility of witnesses[,]” Clark v. Kreamer, 243 Ariz. 272, 276 ¶ 14 (App.
2017) (citation modified).

¶9 A defendant’s general impairment “does not create in and of
itself a separate issue or claim of negligence.” Ornelas v. Fry, 151 Ariz. 324,
328 (App. 1986). Evidence of general impairment is admissible only after
the plaintiff “lay[s] a reasonable foundation establishing . . . relevancy.” Id.
at 329. A plaintiff establishes relevancy by providing a factual basis that
shows a defendant was impaired at the time of the negligent conduct, id. at
328, or “sufficiently close in time to the incident to permit an inference of
[impairment,]” Mulhern v. City of Scottsdale, 165 Ariz. 395, 398 (App. 1990).
Requiring a factual basis “ensure[s] that the proffered evidence be both
relevant and probative to the issues in the case, without creating unfair
prejudice.” Ornelas, 151 Ariz. at 329. After the plaintiff establishes the
defendant was impaired at the time of negligence, the plaintiff must also
show that the impairment “translate[d] into conduct falling below the
applicable standard of care[.]” Id. at 328.

¶10 Thus, we discern a two-prong test for admitting and using
general impairment evidence: the plaintiff must establish (1) the doctor was
impaired at the time of the alleged negligence; and (2) the impairment
affected the doctor’s ability to meet the standard of care.

¶11 Dr. Monash argues the court abused its discretion by
admitting evidence of general impairment without a sufficient factual basis.
Specifically, Dr. Monash challenges the admission of testimony from his ex-
wife, Dr. Bushman, Dr. Grandner, and Dr. Joubert, each of whom discussed
Dr. Monash’s substance abuse or sleep deprivation. He further argues that
the court committed legal error by not following Ornelas, in that the court
did not grant a mistrial when at trial Novalis-Marine failed to establish a
link between the general impairment evidence and Dr. Monash’s
negligence.

¶12 Although Dr. Monash contends otherwise, the court did
indeed apply Ornelas by requiring, and ultimately finding, a factual basis
for the general impairment evidence. Thus, we consider only whether the
factual basis found by the court was clearly erroneous. See Valdez, 254 Ariz.
at 499 ¶ 14 (noting we will not disturb a fact determination unless it is
clearly erroneous).

¶13 As to the first prong—i.e., the doctor was impaired at the time
of the negligent conduct—the court received evidence supporting its
inference that Dr. Monash was impaired during his two-week post-op
treatment of Marine. Dr. Bushman testified about the effects of chronic

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marijuana use and how Dr. Monash’s conduct raised an inference of
impairment before, during, and after Marine’s treatment. Dr. Grandner
provided similar testimony on chronic sleep deprivation and how it is
highly likely that Dr. Monash was impaired during Marine’s care. Other
portions of the record further support the court’s inference. The evidence
indicated Dr. Monash had been using marijuana several times a day
starting in 2017. The evidence further shows that Dr. Joubert diagnosed Dr.
Monash with severe cannabis use disorder in 2019, which he failed to treat.
The evidence also shows Dr. Monash was reported to TMC for smelling like
marijuana only a couple months after Marine’s death. This evidence
reasonably supports the court’s inference that Dr. Monash was impaired
while treating Marine, and thus the court did not err in finding this factual
predicate required by Ornelas was satisfied.

¶14 As to the second prong—i.e., the impairment affected the
doctor’s ability to meet the standard of care—the court found that “Drs.
Grandner and Bushman laid a reasonable foundation regarding the
connection between [Dr.] Monash’s impairment and his ability to make
competent medical decisions regarding Jeremy [sic.] Marine’s care.” At
trial, Dr. Grandner testified that when someone is sleep deprived, “[t]hey
could be looking like they are holding things together, but you see this
accumulation of errors, mistakes, errors in judgment, [and] emotional
dysregulation[.]” Dr. Bushman provided similar testimony and stated the
records he reviewed showed “problems with problem solving, fatigue,
concentration, [and] communication,” which were “expected
consequences” of Dr. Monash’s impairment. These expert testimonies
provided the link between Dr. Monash’s impairment and his ability to
make competent decisions, supporting the court’s factual finding.

¶15 “A factual finding is clearly erroneous only when,
considering the totality of the evidence, the reviewing court ‘is left with the
definite and firm conviction that a mistake has been committed.’” Valdez,
254 Ariz. at 499 ¶ 14 (quoting State v. Burr, 126 Ariz. 338, 339 (1980)). Here,
the expert testimonies, in conjunction with the evidence from before and
after Marine’s care, see Mulhern, 165 Ariz. at 398, reasonably support the
court’s inference that Dr. Monash was impaired while treating Marine, thus
establishing the relevancy of the general impairment evidence and its link
with Dr. Monash’s negligence. Given this record, we cannot say the court’s
finding of the requisite factual basis was clearly erroneous. Valdez, 254 Ariz.
at 499 ¶ 14.

¶16 Dr. Monash also argues the court erred because the general
impairment evidence was both irrelevant and prejudicial. Because the
purpose of requiring a factual basis is to prevent irrelevant and prejudicial

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impairment evidence, Ornelas, 151 Ariz. at 329, affirming the court’s factual
basis also indicates the evidence is neither irrelevant nor unduly
prejudicial. Thus, we conclude that the court did not abuse its discretion by
admitting general impairment evidence or denying Dr. Monash’s motion
for a mistrial.

II. The Court Did Not Err by Admitting Evidence of Dr. Monash’s
Previous Patients and Mortality Rates.

¶17 Dr. Monash argues the court erred by admitting evidence of
his previous patients’ deaths and his mortality rates because such evidence
was impermissible character evidence under Arizona Rule of Evidence
(“ARE”) 404(b).

¶18 We review the court’s evidentiary ruling for a “clear abuse of
discretion[.]” Larsen, 196 Ariz. at 241 ¶ 6 (citation modified). A court abuses
its discretion if “there is no evidence to support its conclusion or the reasons
given by the court are clearly untenable, legally incorrect, or amount to a
denial of justice.” Searchtoppers.com, L.L.C. v. TrustCash LLC, 231 Ariz. 236,
241 ¶ 20 (App. 2012) (citation modified).

¶19 ARE 404(b)(1) generally prohibits “evidence of other crimes,
wrongs, or acts . . . to prove the character of a person in order to show action
in conformity therewith.” Our supreme court adopted a four-part test for
analyzing admissibility under this rule, and such evidence is admissible if:
“(1) the evidence is related to a material fact, (2) the evidence tends to make
the existence of a material fact more or less probable than without the
evidence, (3) the material fact that is more or less probable is something
other than a party’s character and the person’s propensity to act in
accordance with that character, and (4) the probative value of the evidence
substantially outweighs the danger of unfair prejudice.” Lee v. Hodge, 180
Ariz. 97, 100 (1994).2

¶20 For the third element, ARE 404(b)(2) lists several permissible
non-character purposes, including absence of mistake or accident. “The . . .
absence of mistake exception to the general rule is predicated primarily on
a theory of increased probability arising from repetitive actions.” Id. at 101.

2 Both parties rely on Purcell v. Zimbelman, 18 Ariz. App. 75 (1972), in
addressing this evidentiary issue. But Purcell was decided before ARE
404(b) was enacted. Because Lee v. Hodge is a supreme court case that
addresses the admissibility of similar evidence under ARE 404(b), we rely
on Lee instead of Purcell.

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To fall under this exception, evidence “must be similar to the alleged acts.”
Id.

¶21 Here, the court found that the evidence in question did not
violate ARE 404(b)(1) because it “was relevant for reasons other than to
show bad character[.]” Dr. Monash argues the evidence was irrelevant
because Novalis-Marine failed to show substantial similarity to Marine’s
case. He also asserts the absence of mistake exception does not apply and
the evidence was highly prejudicial. We disagree with Dr. Monash.

¶22 At trial, Dr. Awad testified about twelve of Dr. Monash’s
deceased patients, describing in detail the type of surgery each patient had,
the mortality rate for that type of surgery, and any post-surgical
complications that arose. He concluded that six of the twelve patients had
the same surgery as Marine, two had different, but similar bariatric
surgeries, and all twelve surgeries had a similar or lower mortality rate
compared to Marine’s surgery. Additionally, eleven of the twelve patients
had post-surgical complications and every patient developed sepsis.

¶23 Dr. Freeman presented a statistical analysis of Dr. Monash’s
mortality rates, highlighting the significance of Dr. Monash’s high number
of patient deaths to show that it was not likely accidental or due to chance.

¶24 Dr. Awad’s testimony established context and relevancy for
Dr. Freeman’s statistical analysis by explaining the similarities between
previous patient cases and Marine’s case, all of which contributed to Dr.
Monash’s high mortality rate. The analysis was relevant because it related
to the material fact of whether Dr. Monash was aware of, or should have
been aware of, an issue within his practice, which then directly related to
Dr. Monash’s breach of the standard of care and to Novalis-Marine’s
punitive damages claim. Thus, these two witnesses’ testimonies were
relevant and satisfy the first two elements of the Lee test.

¶25 The testimonies also fall under the absence of mistake
exception, satisfying the third Lee element. Dr. Monash argues that the
previous cases must utilize “the same procedure and treatment decisions”
as Marine’s case to be sufficiently similar for admissibility purposes. But in
Lee, our supreme court concluded certain prior acts were similar enough to
the case before it because the prior acts “involved the same ‘gross
features’—that is, all [the prior acts] were committed by the ‘same doer’ and
all involve the same type of act, although not necessarily the same method
of acting.” Id. at 101. Here too, Dr. Monash was the “same doer” in each
case about which Dr. Awad testified, and each case involved the same type
of act, which was treating patients in a way that led to sepsis and then

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continued treatment in the presence of sepsis. Although not all twelve
patient cases involved the same type of surgery as Marine’s case, “the same
method of acting” is not required to find the applicable level of similarity.
Id. Thus, because the previous patient cases are sufficiently similar to
Marine’s case, just as in Lee, such evidence, in combination with the
statistical analysis, helps prove that Marine’s death was not the result of a
mistake. Id. (“[T]he laws of probability suggest that the repetition of these
‘bad acts’ diminishes the likelihood that the alleged act was accidental.”).
Thus, the third element of the Lee test is also satisfied.

¶26 The dissent concludes that the absence of mistake exception
does not apply because Novalis-Marine did not allege that Dr. Monash
intentionally harmed Marine. Infra. ¶¶ 65–66. But negligence is generally
unintentional. Negligence can derive from an innocent mistake or be the
unintended consequence of other choices. So, while Novalis-Marine did not
allege intentionality, her theory was that Marine’s death was the
consequence of Dr. Monash’s continuing to treat patients while laboring
under chronic sleep deprivation and an untreated cannabis use disorder,
under which he used marijuana several times a day. The previous patient
cases show Dr. Monash’s history of treating patients in a way that led to
sepsis. In the face of such history, it is less probable that Dr. Monash’s
treatment in Marine’s case was the product of an innocent mistake. See Lee,
180 Ariz. at 101. Thus, we conclude the absence of mistake exception
applies.

¶27 The dissent also asserts that under the second prong of Purcell
v. Zimbelman, 18 Ariz. App. 75 (1972), evidence of the previous patients was
inadmissible because the court did not find that Dr. Monash was negligent
in treating those patients. Infra. ¶¶ 60–61. But predicating admission of
evidence on a court’s finding that a doctor was negligent in prior instances
could lead the jury to conclude that the doctor’s prior negligence means he
is also negligent in the current case. This directly contradicts ARE 404(b)(1),
so we decline to apply this test. See De Camp v. Central Ariz. Light & Power
Co., 47 Ariz. 517, 522 (1936) (noting rules of practice “have the same force
and effect as statutes so far as they are applicable to any case”); see also Duff
v. Lee, 250 Ariz. 135, 138 ¶ 14 (2020) (noting “we seek to harmonize rules
and statutes, reading them in tandem whenever possible”).

¶28 Finally, we find no abuse of discretion in the court’s
determination that the prior acts and the mortality rates were more
probative than prejudicial. The court held that “considering the relevance
of the evidence and the weight of other evidence establishing Defendant
Monash’s negligence . . . any prejudice in admitting the evidence did not
substantially outweigh the probative value of the evidence.” The standard

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of review for determinations of prejudice is highly deferential, Yauch v. S.
Pac. Transp. Co., 198 Ariz. 394, 403 (App. 2000) (“[T]he balancing of factors
under [ARE] 403 is peculiarly a function of trial courts, not appellate
courts.”), and we will not disturb the court’s ruling unless “no reasonable
judge would have reached the same result under the circumstances.” State
v. Armstrong, 208 Ariz. 345, 354 ¶ 40 (2004) (citation omitted).

¶29 As noted, the evidence directly concerned the central issues
of breach and punitive damages, and therefore, was highly probative.
Doubtless, the evidence was harmful to Dr. Monash’s defense. But “not all
harmful evidence is unfairly prejudicial because evidence which is relevant
and material will generally be adverse to the opponent.” State v. Strong, 258
Ariz. 184, 211 ¶ 115 (2024) (citation modified). While we are concerned that
some details in Dr. Awad’s testimony were unnecessary, such that we
might have decided this issue differently in the first instance, we must defer
to the court’s ruling because, based on the record, we cannot say that no
reasonable judge would have come to the same decision as the judge did in
this case. See Armstrong, 208 Ariz. at 354 ¶ 40. Thus, we affirm the court’s
decision to admit evidence of Dr. Monash’s previous patients and mortality
rates.

III. The Court Did Not Admit Duplicative and Cumulative Testimony.

¶30 Dr. Monash argues the court erred by allowing duplicative
and cumulative expert testimony about the standard of care and cause of
death, in violation of Rule 26(b)(4)(D). We note that the rule Dr. Monash
cited, also known as the “One-Expert Rule,” was revised as Rule
26(b)(4)(F)(i) in 2018. McDaniel v. Payson Healthcare Mgmt., Inc., 253 Ariz.
250, 255 ¶¶ 17–19 (2022). As such, we will refer to the current rule.

¶31 The One-Expert Rule establishes the presumption that each
party is “entitled to call only one retained or specially employed expert to
testify on an issue.” Ariz. R. Civ. P. 26(b)(4)(F)(i). This limit may be
extended if the parties agree or the court orders otherwise. Id. Additionally,
our supreme court has recognized that “where an issue cuts across several
professional disciplines, the court should be liberal in allowing expansion
of the limitation upon experts established in [Rule 26(b)(4)(F)(i)].”
McDaniel, 253 Ariz. at 257 ¶ 25 (citing a 1991 comment to Rule 26(b)(4)).

¶32 We review admission of expert testimony for abuse of
discretion, Sandretto v. Payson Healthcare Mgmt., Inc., 234 Ariz. 351, 356 ¶ 11
(App. 2014), but “[i]f an evidentiary ruling is predicated on a question of
law . . . we review that ruling de novo[,]” In re Conservatorship for Hardt, 242
Ariz. 449, 452 ¶ 9 (App. 2017) (noting that even when reviewing for abuse

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of discretion, “a court abuses its discretion if it commits an error of law in
reaching a discretionary conclusion.”). The issue of whether expert
testimony violates the One-Expert Rule is a question of law that we will
review de novo. Stafford v. Burns, 241 Ariz. 474, 481 ¶ 25 (App. 2017).

A. The Court Did Not Admit Duplicative or Cumulative
Testimony About the Standard of Care.

¶33 Dr. Monash argues he should receive a new trial because the
court allowed multiple experts to testify about the standard of care, in
addition to Novalis-Marine’s disclosed expert. He also argues two of the
experts were not qualified under A.R.S. Section 12-2604 to testify about the
standard of care. Because we conclude that none of the experts offered
standard of care testimony, we do not address Dr. Monash’s qualification
argument.

¶34 Dr. Monash first applies this challenge to Dr. Freeman’s
testimony. But Dr. Freeman presented a statistical analysis of mortality
rates for bariatric patients and explained that Dr. Monash’s rate was 6.25
times higher than the national rate. In his brief, Dr. Monash points to Dr.
Freeman’s testimony that “[the higher mortality rate] comes down to
something about Dr. Monash, so whether it’s his training or anything else.”
But this testimony does not address the standard of care in Marine’s case.
Rather, in context, it notes that because there is no evidence of patient
problems contributing to Dr. Monash’s high mortality rate, the rate must be
explained by some factor related to Dr. Monash, such as training,
impairment, or technique. Considering such factors is necessary for Dr.
Freeman’s statistical analysis, so his testimony was within the scope of his
expertise. Thus, we conclude he did not offer duplicative or cumulative
standard of care testimony.

¶35 Dr. Monash next challenges Dr. Awad’s testimony, arguing
he improperly testified about an error during Marine’s surgery and about
his impressions of a post-surgical CT scan. But Dr. Awad was retained to
compare the circumstances of Dr. Monash’s previous patients’ deaths with
Marine’s case, which included comparing any complications that arose
across those cases. As such, Dr. Awad did not comment on the standard of
care in Marine’s case, but rather testified within the scope of his expertise
about complications that arose during Marine’s surgery or appeared in the
CT scan and their similarity to other patients who experienced harmful
outcomes under Dr. Monash’s care.

¶36 Dr. Monash further argues that Dr. Awad improperly
testified about Dr. Monash’s quality of care during an appendicitis case, in

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response to a juror’s question. However, not only did Dr. Monash fail to
object to the question or to Dr. Awad’s answer at trial, but this testimony
also did not address the applicable standard of care in Marine’s case. Thus,
Dr. Awad’s testimony was not duplicative or cumulative standard of care
testimony.

¶37 Finally, Dr. Monash challenges Dr. Bushman’s testimony by
arguing Dr. Bushman improperly testified that Dr. Monash made
“errors . . . in [his] medical decision making.” But, in context, Dr.
Bushman’s testimony did not opine as to the standard of care in Marine’s
case. Instead, Dr. Bushman highlighted how impairment from chronic
substance abuse generally affected Dr. Monash at work. He further
supported Dr. Freeman’s statistical analysis conclusion that Dr. Monash’s
high mortality rate was likely caused by a factor related to Dr. Monash.
Thus, Dr. Bushman did not testify about the standard of care in Marine’s
case, and his testimony was not duplicative or cumulative standard of care
testimony.

B. The Court Did Not Admit Duplicative or Cumulative
Testimony About Marine’s Cause of Death.

¶38 Dr. Monash contends the court erred by allowing Dr. Shikora
to testify about Marine’s cause of death, in addition to Novalis-Marine’s
disclosed expert. Dr. Shikora was called to testify about the standard of care
required in Marine’s case and whether Dr. Monash met that standard. But
to make a proper conclusion, Dr. Shikora had to review Marine’s cause of
death—complication from the surgery—to conclude if it was because of Dr.
Monash’s care. Thus, Dr. Shikora did not discuss the cause of death to prove
Dr. Monash’s negligence, but rather to support his conclusion that Dr.
Monash fell below the standard of care while treating Marine. Therefore,
Dr. Shikora’s testimony was not duplicative or cumulative cause of death
testimony.

¶39 Dr. Monash also challenges Dr. Awad’s testimony. As
previously discussed, the purpose of Dr. Awad’s testimony was to compare
Marine’s death with previous patients’ deaths. Supra ¶ 35. To make an
accurate comparison, it was necessary for Dr. Awad to discuss the cause of
Marine’s death. Thus, Dr. Awad properly testified within the scope of his
expertise and his testimony was not duplicative or cumulative cause of
death testimony.

¶40 In sum, Novalis-Marine presented testimony from multiple
experts to develop her theory regarding Marine’s cause of death, the
standard of care applicable to Dr. Monash’s treatment of Marine, Dr.

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Monash’s breach of that standard, the causal link between Dr. Monash’s
care and Marine’s cause of death, and to refute Dr. Monash’s defenses. The
testimony covered complex professional matters that did result in some
overlap, at least some of which was elicited by Dr. Monash’s own cross-
examination. But on balance, the multiple experts appear reasonably
necessary to establish Novalis-Marine’s case, and the court actively
controlled the progress of testimony to limit that overlap. On our review of
this record, even assuming the court could have done more to reduce
overlapping expert testimony, such would not entitle Dr. Monash to any
relief. See Lane v. Ctr. for Orthopedic & Rsch. Excellence Inc., 1 CA-CV 20-0177,
2021 WL 734737, at *5 ¶ 18 (Ariz. App. Feb. 25, 2021) (mem. decision)
(“[E]rroneous admission of cumulative evidence generally does not require
reversal.”). We discern no abuse of discretion as to this issue.

IV. Dr. Monash Failed to Identify Prejudice Resulting from the Jury
Instructions.

¶41 Dr. Monash argues the court erred by giving a “Pre-existing
Condition, Unusually Susceptible Plaintiff” instruction and a “Magnitude
of the Apparent Risk” instruction. We review the court’s decision to give a
jury instruction for abuse of discretion. State v. Turner, 251 Ariz. 217, 223
¶ 22 (App. 2021). “We review jury instructions as a whole to determine
whether the jury was properly guided in its deliberations.” Powers v. Taser
Intern., Inc., 217 Ariz. 398, 400 ¶ 12 (App. 2007). We will not reverse on the
ground of improper jury instructions unless “the instruction was both
erroneous and prejudicial to the substantial rights of the appealing party.”
Gemstar Ltd. v. Ernst & Young, 185 Ariz. 493, 504 (1996) (citation modified).
Prejudice “will not be presumed, but must affirmatively appear from the
record.” Id. Because Dr. Monash failed to identify any prejudice, we do not
address whether the instructions are erroneous. See id.

¶42 Dr. Monash’s sole argument to establish prejudice is that
under Gilmore v. Wingate, 21 Ariz. 542, 547 (1920), the “Pre-Existing
Condition” instruction is presumptively prejudicial because it “enunciates
an improper measure of damages[.]” But Gilmore is inconsistent with
modern case law. Our supreme court has expressed that prejudice “must
affirmatively appear from the record[,]” and thus we will not presume its
existence. Gemstar Ltd., 185 Ariz. at 504. Dr. Monash did not identify any
prejudice in the record that resulted from either the “Pre-Existing
Condition” instruction or the “Magnitude of the Apparent Risk”
instruction. Because Dr. Monash did not identify any prejudice, we affirm
the court’s jury instructions.

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 NOVALIS-MARINE, et al. v. MONASH, et al.
Decision of the Court
V. The Cumulative Effect Doctrine Does Not Warrant a New Trial.

¶43 Dr. Monash argues he is entitled to a new trial based on the
cumulative effect of the superior court’s errors. Because we find no error,
we reject Dr. Monash’s argument that they amounted to cumulative error
warranting a new trial.

VI. The Court Did Not Err in Granting a Directed Verdict Denying
Punitive Damages.

¶44 In her cross-appeal, Novalis-Marine contends the court erred
by granting Dr. Monash’s motion for a directed verdict denying punitive
damages. Dr. Monash argues Novalis-Marine waived this argument
because she did not file a motion for a new trial, as required by A.R.S.
Section 12-2102(C).

¶45 We have recently held that a “mid-trial motion under Rule
50(a) alone will not preserve our jurisdiction unless followed by a post-
verdict Rule 50(b) motion.” Williams v. King, 248 Ariz. 311, 317 ¶ 31 (App.
2020), as amended (Jan. 29, 2020) (citation modified). Indeed, the express
language commands that appellate courts “shall not consider the
sufficiency of the evidence to sustain the verdict or judgment in an action
tried before a jury unless a motion for a new trial was made.” A.R.S. § 12-
2102(C). Further, “[a] civil appeal is a statutory privilege rather than a right
and strict compliance with statutory and rule requirements is mandatory.”
Wendling v. Sw. Sav. & Loan Ass’n, 143 Ariz. 599, 601 (App. 1984). Because
Novalis-Marine’s punitive damages claim was resolved by a contested mid-
trial motion for directed verdict under Rule 50(a), but she failed to move
post-verdict for a new trial under Rule 50(b), the express language of A.R.S.
Section 12-2102(C) would seem to preclude our review of the directed
verdict. See Williams, 248 Ariz. at 317 ¶ 31. However, Novalis-Marine argues
that this requirement would be futile and conflicts with our supreme court’s
opinion in McClinton v. Rice, 76 Ariz. 358 (1953).

¶46 In McClinton, a plaintiff pursued a claim “involving slander
and malicious prosecution” and sought punitive damages. Id. at 360. That
claim was resolved on the defendant’s motion for directed verdict. Id. After
the jury returned a verdict on other claims, the plaintiff did not file a motion
for a new trial but instead appealed the directed verdict. Id. The defendant
argued that the supreme court was without jurisdiction to review the
directed verdict because the plaintiff did not move for a new trial, citing
Section 21-1703 of the Arizona Code 1939—the like-worded predecessor
statute to A.R.S. Section 12-2102. Id. at 361.

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 NOVALIS-MARINE, et al. v. MONASH, et al.
Decision of the Court
¶47 In reviewing this argument, the court noted that the
defendant’s “motion for a directed verdict was opposed and argued,” id. at
361, and the “sufficiency of the evidence was pointedly before the lower
court,” id. at 362. It opined that:

[t]he purpose of a motion is to obtain a ruling or an order
directing that some act be done in favor of the applicant, and
the essentials of a motion are that the attention of the court
must be called to the particular matter or request, and that the
court be given an opportunity to rule as to the matter.

Id. Under those circumstances, the supreme court reasoned that “to require
a further motion for a new trial to be made . . . would be to require a hollow
procedure opposed to the reasons and purposes for which section 21–1703
exists[.]” Id. Thus, on these facts, the court held that the plaintiff’s failure to
file a motion for new trial did not deprive it of jurisdiction to review the
sufficiency of the evidence. Id.

¶48 Here, after presentation of Novalis-Marine’s case-in-chief, Dr.
Monash moved for a directed verdict as to her punitive damages claim. As
in McClinton, this motion was contested and argued. And after the jury
resolved the remaining claims, Novalis-Marine did not file a motion for a
new trial before appealing the judgment as a matter of law entered against
her. But like in McClinton, the sufficiency of the evidence as to that issue
was certainly raised to the attention of the superior court. Thus, we agree
that the relevant circumstances of this case parallel those present in
McClinton.

¶49 The categorical rule presented in Williams diverges from the
exception established in McClinton. Compare Williams, 248 Ariz. at 317 ¶ 31
with McClinton, 76 Ariz. at 362. But the defendants in Williams “offer[ed] no
authority for a futility exception,” thereby failing to bring McClinton’s
reasoning to our attention. Williams, 248 Ariz. at 317 ¶ 31. And
notwithstanding McClinton’s apparent inconsistency with the express
language of A.R.S. Section 12-2102(C), nevertheless, “[w]e are bound by
decisions of the Arizona Supreme Court and have no authority to overrule,
modify, or disregard them.” State v. Rodriguez, 260 Ariz. 36, 57 ¶ 62 (App.
2025). Therefore, we conclude that we have jurisdiction to review the
sufficiency of the evidence regarding Novalis-Marine’s punitive damages
claim. See McClinton, 76 Ariz. at 362. Even so, Novalis-Marine’s cross-
appeal is unavailing on its merits.

¶50 We review the court’s decision to grant a directed verdict de
novo. Newman v. Select Specialty Hospital-Arizona, Inc., 239 Ariz. 558, 562 ¶ 9

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 NOVALIS-MARINE, et al. v. MONASH, et al.
Decision of the Court
(App. 2016). “When considering whether the issue of punitive damages was
properly withdrawn from the jury, we must construe the evidence and all
reasonable inferences that may be drawn from the evidence in a light most
favorable to [the] party seeking such damages.” Id. at 562 ¶ 10 (citation
modified). The court must deny a motion for directed verdict on punitive
damages “if a reasonable jury could find the requisite evil mind by clear
and convincing evidence.” Thompson v. Better-Bilt Aluminum Prods. Co., Inc.,
171 Ariz. 550, 558 (1992).

¶51 Plaintiffs in negligence cases are entitled to punitive damages
if they can show that the defendant acted with an “evil mind.” Swift Transp.
Co. of Ariz. L.L.C. v. Carman, 253 Ariz. 499, 506 ¶ 22 (2022). This burden is
quite high. To prove an “evil mind,” the plaintiff must show by clear and
convincing evidence “that the defendant’s conduct was outrageous,
oppressive or intolerable, and created a substantial risk of tremendous
harm, thereby evidencing a conscious and deliberate disregard of the
interests and rights of others.” Id. at 506 ¶ 24 (citation modified). The
evidence must also show that the defendant had more than a “reason to
appreciate the severity of the risk; the defendant must have actually
appreciated the severity of the risk before consciously disregarding it.” Id. at
507 ¶ 25.

¶52 There is no evidence in the record establishing that Dr.
Monash actually appreciated, and then consciously disregarded, the risk of
treating Marine while impaired. Despite the evidence of his impairment,
Dr. Monash never acknowledged that he had a problem with marijuana use
or sleep deprivation. To the contrary, he consistently denied any problems,
stated multiple times that he has never treated a patient while impaired,
and never received any recommended treatment.

¶53 Because Dr. Monash himself did not believe he was impaired
at any point while treating Marine, no reasonable jury could conclude that
Dr. Monash “actually appreciated the severity of the risk” of treating Marine
while impaired “before consciously disregarding it.” Id. And because no
reasonable juror could find that the standard for punitive damages could
be established by clear and convincing evidence, we affirm the court’s
decision to grant the directed verdict denying punitive damages.

CONCLUSION

¶54 We affirm the court’s judgment entered pursuant to a jury
verdict and its decision to grant the directed verdict on punitive damages.

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 NOVALIS-MARINE, et al. v. MONASH, et al.
Kiley, J., Dissenting

K I L E Y, J., dissenting:

¶55 Dr. Jeffrey Monash performed a Roux-en-Y gastric bypass
procedure on Jeremey Marine in January 2020. Over the next two weeks,
Marine’s physical condition steadily deteriorated until he died. In the
subsequent suit she brought against Monash, Marine’s widow, Cheryl
Novalis-Marine, alleged no negligence in the performance of her husband’s
Roux-en-Y procedure, claiming instead that her husband died as a result of
Monash’s negligent post-operative care.

¶56 The record shows that Monash performed over 2,000 surgical
procedures of various types on other patients in the six-year period
preceding Marine’s death. At trial, Novalis-Marine was allowed to present
evidence of twelve of these procedures, all of which had negative outcomes.
The trial court held that this evidence was admissible under Purcell v.
Zimbelman, 18 Ariz. App. 75 (1972). The Majority affirms on other grounds,
holding that the evidence was admissible under Arizona Rule of Evidence
(“Rule”) 404(b).3 Because, in my view, evidence of these other procedures
was not admissible on any grounds and, further, that it was unfairly
prejudicial, I would vacate the judgment and remand for a new trial. I
respectfully dissent.

¶57 At trial, Novalis-Marine was allowed to present evidence
that, four years before he performed Marine’s gastric bypass operation,
Monash performed “a repair of a recurrent inguinal hernia” on G.M., who
experienced “bleeding” that “was not detected during the surgery,”
resulting in G.M.’s death the following day. Novalis-Marine also presented
evidence that Monash performed “an elective ventral hernia repair” on S.P.
in 2017, and that a “surgical complication” resulted in S.P.’s death three
months later.

3 Rule 404(b) provides, with certain exceptions not relevant here, that

evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show action in
conformity therewith[,] . . . [but] may . . . be admissible for
other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake
or accident.

Ariz. R. Evid. 404(b).

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 NOVALIS-MARINE, et al. v. MONASH, et al.
Kiley, J., Dissenting
¶58 Similarly, Novalis-Marine presented evidence that when
Monash attempted to perform an appendectomy on J.W. in 2019, the tissue
he removed from the patient’s abdomen was later determined to be
“adipose tissue” rather than the appendix. Because Monash mistakenly
removed fatty tissue instead of J.W.’s appendix, the patient “continued” to
experience “progressive appendicitis” until his appendix was removed by
a different surgeon.

¶59 The nine other surgeries that Monash performed were all
bariatric procedures of one type or another. Novalis-Marine presented no
evidence, however, that Monash performed any of them negligently. On
the contrary, in successfully arguing for the admission of this evidence,
Novalis-Marine’s counsel told the trial judge that Novalis-Marine would
present no evidence or argument “that Dr. Monash was negligent” in
performing these other procedures, or that any of the negative outcomes
“was Dr. Monash’s fault[.]” Indeed, counsel expressly conceded that
“complications occur in the absence of negligence.”

¶60 Novalis-Marine argued, and the trial court agreed, that
evidence of the unsuccessful procedures that Monash performed on twelve
other patients was admissible under Purcell. In Purcell, the plaintiff, who
suffered from diverticulitis, sued the surgeon and the hospital after
undergoing an inappropriate medical procedure known as a “pull-through
operation” on the diseased portion of his bowel. 18 Ariz. App. at 79. At trial,
the plaintiff presented expert testimony that the surgeon fell below the
standard of care by performing the pull-through operation instead of
another, more appropriate procedure. Id. at 80. The plaintiff also presented
evidence that the surgeon had previously been sued by four other
diverticulitis patients – Blickley, Hill, Kelly, and Wolford – after performing
“substantially similar” procedures on them, and that the Blickley and Hill
lawsuits were resolved adversely to the surgeon. Id. at 80, 83, 85. On appeal,
this Court affirmed, holding that evidence that Blickley and Hill
successfully sued the surgeon was properly admitted “since it tended to
show [the surgeon’s] inability to properly treat diverticulitis and his
misconception of the proper surgical treatment[.]” Id. at 85. The Purcell
court further held that the trial court correctly “[t]old the jurors they were
not to consider the Kelly and Wolford cases in connection with the claim
against” the surgeon, evidently because those cases had not yet been
resolved. Id.

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 NOVALIS-MARINE, et al. v. MONASH, et al.
Kiley, J., Dissenting
¶61 Purcell does not support Novalis-Marine’s position here.4 In
upholding the admission of evidence of treatment the surgeon provided to
other patients, the Purcell court emphasized that those procedures were
“substantially similar” to the one the surgeon performed on the plaintiff. 18
Ariz. App. at 83. Moreover, in holding that the jurors were properly
allowed to consider the procedures performed on Blickley and Hill as
evidence of the surgeon’s negligence, the Purcell court indicated that those
procedures were relevant to show the surgeon’s negligence because the
ensuing lawsuits were resolved adversely to the surgeon. The Purcell court
expressly held that the Kelly and Wolford lawsuits, which were not yet
resolved, could not be considered to show the surgeon’s negligence. Purcell
thus stands for the proposition that evidence of prior procedures performed
by the defendant doctor in a malpractice case may properly be considered
by the jurors only if (1) the prior procedures are “substantially similar” to
the one performed on the plaintiff and (2) the plaintiff presents evidence
from which the jurors could conclude that the prior procedures were
performed negligently.

¶62 Here, the hernia and appendectomy procedures that Monash
performed on G.M., S.P., and J.W. were not remotely similar to the Roux-
en-Y procedure he performed on Marine. Evidence of those surgeries was
thus plainly inadmissible under the first prong of the Purcell test. And
because the superior court made no finding that Monash was negligent in
his treatment of the other nine patients (and, indeed, Novalis-Marine

4 I find Purcell’s holding difficult to square with Rule 404(b)’s
prohibition on the admission of prior acts “to show action in conformity
therewith.” Ariz. R. Evid. 404(b); see also Bair v. Callahan, 775 F.Supp.2d
1163, 1170–71 (D.S.D. 2011) (rejecting plaintiff’s claim, in medical
malpractice case, that Federal Rule 404 authorized admission of evidence
that defendant doctor had “previously misplaced pedicle screws” when
performing procedures on other patients; “[Federal Rule] 404(b) bars the
use of evidence of other alleged wrongs to show, circumstantially, action in
conformity therewith[,]” and so prohibited evidence that doctor “had a
propensity to commit malpractice by misplacing pedicle screws and thus
may or perhaps must have committed similar malpractice in [plaintiff’s]
surgery”). Since Purcell predates the adoption of the Arizona Rules of
Evidence in 1977, one may reasonably question whether Purcell remains
good law. See State v. Schurz, 176 Ariz. 46, 51 n.2 (1993) (“[O]nce Arizona
adopted its Rules of Evidence, all prior evidentiary decisions in conflict
with those rules were superseded.”). But since no party asks us to revisit
Purcell’s holding, that issue is not presented here.

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 NOVALIS-MARINE, et al. v. MONASH, et al.
Kiley, J., Dissenting
expressly disclaimed any allegation of negligence), evidence of those
surgeries was not admissible under the second prong of the Purcell test.
Purcell does not, therefore, support the admission of evidence of any of the
unsuccessful surgeries that Monash performed on twelve other patients.

¶63 In affirming the judgment, the Majority does not rely on
Purcell, holding instead that evidence of the unsuccessful procedures that
Monash performed on other patients was admissible under Rule 404(b) to
prove “absence of mistake.” See supra ¶ 25.

¶64 I disagree. Rule 404(b)’s “absence of mistake” exception
applies only when a party seeks to rebut the opposing party’s contention
that he was unaware of a relevant fact or circumstance, or that he lacked the
state of mind necessary to establish a claim or defense. See, e.g., Lee v. Hodge, 180 Ariz. 97 (1994). In Lee, the plaintiffs, after taking their car to a mechanic
for repairs, later sued the mechanic for fraud and other claims, alleging that
he damaged the engine by unnecessarily removing it from the car in order
to increase the repair costs. The trial court precluded the plaintiffs from
presenting evidence that the mechanic had defrauded other customers in
similar ways. On appeal, the Lee court reversed, holding that the proffered
evidence was admissible under Rule 404(b). Noting that “whether the
damage to the engine in [the plaintiffs’] car was done intentionally, not
accidentally[,]” was the “critical” issue, the Lee court held that evidence of
the defendant’s “intentional acts of damage to [other] customers’ cars” was
admissible to show that the damage to the plaintiffs’ car was “not the result
of a mistake[.]” 180 Ariz. at 101.

¶65 As Lee makes clear, the “absence of mistake” exception to Rule
404(b) applies when the parties dispute whether the act on which the claim
of liability is based was done deliberately or in error. Accord Stephenson v.
Durrani, 221 N.E.3d 1037, 1054 (Ohio App. 2023) (“[T]he absence of mistake
exception only applies when a defending party claims that his wrong or
crime was done mistakenly, which opens the door for the other side to
provide evidence of previous wrongs or crimes to demonstrate that the
defendant did not act mistakenly.”). This exception often applies in criminal
cases when the defendant admits committing the charged act but claims to
have done so under a mistaken understanding of the relevant facts. Courts
have held, for example, that if a criminal defendant charged with cocaine
possession claims that he did not realize that the substance was cocaine, the
prosecutor may properly rebut the defendant’s claim of ignorance with
evidence of his prior cocaine use. See United States v. Hegwood, 977 F.2d 492,
497 (9th Cir. 1992) (holding that because “the defense theory at trial was
that the defendants did not know what was in the package[,] . . . [e]vidence
of [their] prior involvement with drugs” was admissible “to prove absence

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 NOVALIS-MARINE, et al. v. MONASH, et al.
Kiley, J., Dissenting
of mistake or accident”). Similarly, if a defendant charged with burglary
claims that he simply entered the wrong house by mistake, the prosecutor
may properly rebut that contention with evidence that the defendant
previously burglarized another house under similar circumstances. See
State v. Drew, 891 A.2d 621, 625–27 (N.J. App. Div. 2006) (holding that
because defendant claimed he entered the victim’s home under the
“mistaken” belief that his friend was inside, evidence of a prior, similar
burglary was admissible “to show the absence of mistake”).

¶66 The “absence of mistake” exception does not apply, however,
when the parties’ dispute involves no assertion of inadvertence or
misunderstanding in performing the act on which the claim of liability is
based. See State v. Torres, 162 Ariz. 70, 73 (App. 1989) (holding, in
prosecution for heroin possession, that trial court erred in admitting
evidence of defendant’s prior heroin use because defendant’s contention
“that the heroin was not his” did not “bring[] into play any issue of motive,
knowledge, intent, absence of mistake or accident”); see also United States v.
Brizuela, 962 F.3d 784, 788, 798 (4th Cir. 2020) (holding, in prosecution of
physician on 21 counts of unlawfully distributing controlled substances to
“pill-seekers and addicts” who fatally overdosed, that trial court erred in
admitting evidence of physician’s uncharged conduct in improperly
prescribing opioids to four other patients; evidence of uncharged conduct
was not admissible to show “absence of mistake” because physician “never
asserted he wrote any of the 21 prescriptions charged in the indictment due
to a mistake”).

¶67 Here, Monash’s state of mind when he treated Marine was not
a disputed issue. Because Monash never claimed that he was unaware of
the nature of the treatment he provided to Marine, and Novalis-Marine
never alleged that Monash deliberately harmed her husband, evidence that
Monash previously performed unsuccessful procedures on other patients
was not admissible to establish “absence of mistake” in his treatment of
Marine. See Malcolm v. Duckett, 996 N.E.2d 988, 992 (Ohio App. 2013) (“[I]n
the absence of a credible allegation that [surgeon] intentionally caused and
failed to recognize a [bowel] perforation” when performing surgery on
plaintiff, evidence of perforations in prior surgeries was not admissible to
establish absence of mistake); see also Comment, “Help Me Doc! Theories of
Admissibility of Other Act Evidence in Medical Malpractice Cases,” 87
Marq. L. Rev. 981, 995 (2004) (“[P]roof of the absence of mistake or accident
can be relevant in the context of a criminal case by helping to show that
whatever occurred must have been the result of an intentional act.
However, this logic does not function in a negligence action, where the
intent of the actor to cause harm is not at issue.” (footnote omitted)).

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 NOVALIS-MARINE, et al. v. MONASH, et al.
Kiley, J., Dissenting
¶68 A review of the record makes it apparent, in my view, that
evidence of the unsuccessful procedures that Monash performed on twelve
other patients was offered for only one reason: to convince the jury that
Monash was bad at his job. Proving a party’s negligence by presenting
evidence that he was negligent in his dealings with other people on other
occasions is precisely what Rule 404(b) prohibits. See Elia v. Pifer, 194 Ariz.
74, 79 (App. 1998) (citing Rule 404(b) in reversing judgment for defendant
in legal malpractice case based on improper admission of evidence of
plaintiff’s unrelated prior misconduct). “[O]ne cannot[,]” in other words,
properly “present evidence the relevance of which is based on the
forbidden inference” that “the person did X in the past, therefore he
probably has a propensity for doing X, and therefore he probably did X this
time, too.” United States v. Shirley, 214 F.Supp.3d 1124, 1144–45 (D.N.M.
2016) (citation omitted); see also Torres, 162 Ariz. at 73 (reversing defendant’s
conviction for heroin possession based on improper admission of
defendant’s prior heroin use; “[T]he only relevance the evidence of prior
drug use had . . . was the forbidden inference that because the defendant
had used heroin in the past, he was using it now.”).

¶69 Numerous courts have applied this principle in the medical
malpractice context, holding that a plaintiff cannot properly establish a
doctor’s negligence by presenting evidence of the doctor’s negligent
treatment of other patients. See, e.g., Rives v. Farris, 506 P.3d 1064, 1070 (Nev.
2022) (citing Nevada’s counterpart to Rule 404(b) in reversing judgment for
plaintiff in medical malpractice case based on improper admission of
evidence of defendant doctor’s prior negligent treatment of another patient;
“[T]he fact that [doctor] . . . acted inconsistently with the standard of care
in a prior case does not make it more or less probable that he acted below
the standard of care in this case.”); Hounchell v. Durrani, 221 N.E.3d 1020,
1033 (Ohio App. 2023) (citing Ohio’s counterpart to Rule 404(b) in reversing
judgment for plaintiff in medical malpractice case based on improper
admission of evidence of prior malpractice lawsuits against defendant
doctor; “The evidence . . . had little to no probative value on the question of
[defendant’s] malpractice with regard to [plaintiff]” and, instead, “ask[ed]
the jury to infer that . . . because [doctor] had been charged with malpractice
in the past, he must have committed malpractice against [plaintiff.]”);
Wlosinksi v. Cohn, 713 N.W.2d 19, 21–22 (Mich. App. 2005) (citing
Michigan’s counterpart to Rule 404(b) in reversing judgment for plaintiff in
medical malpractice case based on improper admission of evidence that
defendant doctor performed “a string of failed [kidney] transplants” on
other patients before performing decedent’s; evidence “that [defendant]
had a propensity to botch transplants” impermissibly suggested “that the
defendant, who has made so many mistakes before, made one again.”); Lai

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 NOVALIS-MARINE, et al. v. MONASH, et al.
Kiley, J., Dissenting
v. Sagle, 818 A.2d 237, 247–48 (Md. 2003) (citing Maryland’s counterpart to
Rule 404(b) in reversing judgment for plaintiff in medical malpractice based
on her counsel’s reference during trial to other malpractice suits against the
same defendant doctor; “[S]imilar acts of prior malpractice litigation should
be excluded to prevent a jury from concluding that a doctor has a
propensity to commit medical malpractice.”). Consistent with the result
reached by these courts, I would hold that Rule 404(b) did not authorize the
admission of evidence of the procedures that Monash performed on twelve
other patients to prove his negligence in treating Marine.

¶70 Of course, a jury’s verdict will not be disturbed based on
erroneous evidentiary rulings absent a showing of prejudice. Brown v. U.S.
Fid. & Guar. Co., 194 Ariz. 85, 88, ¶ 7 (App. 1998). The requisite prejudice
will be found “if the reviewing court is unable to conclude that the jury
would have reached the same verdict” but for the “[e]rror in admitting
evidence[.]” Groener v. Briehl, 135 Ariz. 395, 398 (App. 1983) (citations
omitted).

¶71 Here, prejudice from the improperly-admitted evidence is
readily apparent. Evidence of the deaths of the defendant doctor’s other
patients is bound to weigh heavily on the jurors’ minds in any medical
malpractice case. See Rives, 506 P.3d at 1072–73 (reversing judgment in
malpractice case after concluding that error in admitting evidence of
doctor’s prior act of medical negligence when treating another patient “was
not harmless due to the evidence’s tendency to encourage the jury to reach
an improper propensity conclusion, as well as to cause unfair prejudice to
[defendant] due to the severe injuries suffered by that patient.”). Moreover,
when other-act evidence is improperly admitted, the risk of unfair
prejudice is exacerbated when the opposing party focuses the jury’s
attention on the improperly-admitted evidence. See Devers v. La Mesa RV
Center, Inc., 1 CA-CV 24-0499, 2025 WL 1711425 at *11, ¶ 53 (Ariz. App. June
19, 2025) (mem. decision) (vacating judgment in favor of defendant based
on improper admission of evidence impeaching plaintiff’s character for
truthfulness in part because defendant “made [plaintiff’s] purported
untruthfulness the linchpin of its defense”); see also Rives, 506 P.3d at 1070
(holding that improper admission of evidence of defendant doctor’s
negligent treatment of another patient was “not harmless” in part because
evidence was mentioned frequently at trial).

¶72 Here, the deaths of eleven other patients of Monash’s, as well
as J.W.’s botched appendectomy, were the central focus of Novalis-
Marine’s case. In opening statement, Novalis-Marine’s counsel told the jury
that his client “brought this lawsuit” to hold Monash accountable not only
for her husband’s death, but also for “Dr. Monash’s actions with respect to

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 NOVALIS-MARINE, et al. v. MONASH, et al.
Kiley, J., Dissenting
those other patients[.]” According to counsel, Monash “has not only denied
any responsibility” for Marine’s death, “[h]e’s denied any responsibility for
any of these deaths except for one where there was a lawsuit[.]” Referring
to the eleven patient deaths as “the body count,” counsel told the jury that
“the cycle” of “[d]eath, death, death” is “what this case comes down to.”
Counsel’s parting words to the jury were, “We need you to end the cycle.”

¶73 Because the improperly-admitted evidence of unsuccessful
procedures Monash performed on other patients was central to the
plaintiff’s case, I don’t see how one could possibly conclude that the
evidence had no effect on the jury’s decision. I would vacate the judgment
and remand for a new trial, untainted by evidence of Monash’s
unsuccessful treatment of other patients.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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