amer/banner v. Hon. talamante/palmer

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

HAMMAD MOHAMED AMER, M.D., FATMA AMER, and
BANNER HEALTH, Petitioners,

v.

THE HONORABLE DAVID TALAMANTE, Judge of the SUPERIOR
COURT OF THE STATE OF ARIZONA, in and for the County of
MARICOPA, Respondent Judge,

STARR PALMER, Real Party in Interest.

No. 1 CA-SA 18-0274
FILED 3-7-2019

Appeal from the Superior Court in Maricopa County
No. CV2016-094573
The Honorable David Talamante, Judge Retired

JURISDICTION ACCEPTED; PARTIAL RELIEF GRANTED

COUNSEL

Jones, Skelton & Hochuli, P.L.C., Phoenix
By Eileen Dennis GilBride
Co-Counsel for Petitioners

Slattery Petersen PLLC, Phoenix
By Elizabeth A. Petersen
Co-Counsel for Petitioners
Udall Shumway, PLC, Mesa
By H. Michael Wright, Jason C. Chapman, Fletcher R. Carpenter,
Lincoln Wright
Co-Counsel for Real Party in Interest

Davis Miles McGuire Gardner, PLLC, Tempe
By Kevin P. Fine
Co-Counsel for Real Party in Interest

MEMORANDUM DECISION

Presiding Judge David D. Weinzweig delivered the decision of the Court,
in which Judge Kent E. Cattani and Judge James P. Beene joined.

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

¶1 Banner Health and Dr. Hammad Mohamed Amer
(collectively, “Petitioners”) seek special action relief from the superior
court’s December 6, 2018 order (1) precluding ex parte communications
between Banner and its employees and (2) requiring Banner to disclose all
information obtained via ex parte communications with trial witnesses to
be used at trial. We accept jurisdiction and grant partial relief.

FACTS AND PROCEDURAL BACKGROUND

¶2 This special action arose from a medical malpractice lawsuit.
Plaintiff Starr Palmer alleges that Dr. Amer’s negligence caused her left
forearm to be amputated. She sued Dr. Amer and Banner Health. Dr. Amer
is a physician and employee of Banner Health. During discovery, Banner’s
counsel learned that Palmer’s counsel had ex parte contact about the
lawsuit with Dr. Jessica Regnaert, another Banner employee and Palmer’s
primary care physician. Banner’s counsel warned Palmer’s counsel to
immediately stop all ex parte communications with Banner employees.
Palmer’s counsel later argued the inverse position—that only Palmer could
have ex parte contact with Dr. Regnaert pursuant to the physician-client
privilege.

¶3 This disagreement resulted in dueling motions to preclude ex
parte communication with Dr. Regnaert. In a minute entry dated December
6, 2018, the superior court ruled for Palmer on two issues raised in this
special action. As relevant here, the court’s order (1) prohibited Banner
from having ex parte communications with any “witnesses [who] have a

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physician-patient privilege relationship with Plaintiff,” including Banner
employees such as Dr. Regnaert, and (2) required Banner to disclose all
information obtained via ex parte communications with “any trial witness
that is intended for use at trial.”

¶4 Petitioners moved to stay the lawsuit pending a special
action, which the superior court denied. In denying the stay, however, the
court clarified that it “has not ordered the disclosure of confidential
information. The order is limited to information that is intended for use at
trial. The intent to use at trial requires a waiver of the privilege.”
Petitioners then sought special action relief and a stay of proceedings by
petition in this court. After staying the lawsuit on December 12, 2018, we
accepted jurisdiction and granted relief on January 4, 2019. We also lifted
the stay and promised a written decision to follow. This is that decision.

JURISDICTION

¶5 We accept special action jurisdiction because Petitioners lack
an equally plain, speedy and adequate remedy by appeal. Salvation Army
v. Bryson, 229 Ariz. 204, 205, ¶ 1 (App. 2012).

DISCUSSION

¶6 Petitioners first challenge the superior court’s order
preventing Banner’s counsel from having ex parte communications with
Banner physician-employees about the lawsuit. We review the court’s
decision for an abuse of discretion. Id. at 207, ¶ 8.

¶7 Petitioners argue the order is “legally erroneous,” pointing to
Phoenix Children’s Hospital v. Grant, 228 Ariz. 235 (App. 2011), as controlling
and dispositive. Grant held that counsel for a hospital defendant in a
medical malpractice lawsuit may have private, confidential
communications with treating physicians who are hospital employees if
their care is relevant to plaintiff’s claims. Grant, 228 Ariz. at 239-40, ¶¶ 15,
19. The filing of a medical malpractice lawsuit does not expand the
physician-patient privilege to bar communications that are otherwise
allowed under the employment relationship. Id. at 239, ¶ 15. Palmer
concedes that Grant applies here on its face, but argues we should “either
overrule” Grant because it conflicts with Duquette v. Superior Court, 161 Ariz.
269 (App. 1989), or “narrow the holding in Grant by declaring that it applies
only to those employees who were involved or had first[-]hand knowledge
of the tortious event.”

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¶8 Grant controls here. 1 Banner’s counsel cannot be prevented
from having private communications with Dr. Regnaert about the lawsuit.
Grant authorizes ex parte communication between Banner and all Banner
employees who have relevant testimony to “the injuries at issue in the
lawsuit.” 228 Ariz. at 240, ¶ 19. Dr. Regnaert evaluated and treated Palmer
for “phantom limb pain” shortly after the limb was amputated and has
been Palmer’s primary care physician since 2014. Petitioners have thus
identified Dr. Regnaert as a material witness from the outset, including in
their initial disclosure statement. Petitioners assert Dr. Regnaert has
important information regarding their affirmative defenses, including
contributory negligence and causation, and for damages and life
expectancy. Indeed, Palmer herself identified Dr. Regnaert as a trial
witness and expert witness in her September 28, 2018 disclosure statement.
And, in motion practice below, Palmer conceded that “Dr. Regnaert’s
treatment of Plaintiff spanning 2014 to the present makes her a potential
witness concerning Plaintiff’s damages; her treatment provides some
foundation for projected care needs of ongoing and future damages for this
permanent loss.”

¶9 We grant special action relief on Petitioners’ first argument,
reversing the superior court’s order prohibiting ex parte communication
between Banner and its employees. Banner and its counsel may engage in
ex parte communications with Dr. Regnaert, a Banner physician and
employee, about the lawsuit.

¶10 Petitioners next challenge the superior court’s order that
Banner immediately produce all information learned via ex parte
communications with trial witnesses. Petitioners interpret the court’s
directive as requiring disclosure of information that Banner employees

1 Duquette holds that defense counsel in a medical malpractice case
may not engage in ex parte communications with the plaintiff’s treating
physicians without having obtained the plaintiff’s consent. 161 Ariz. at 277.
But Grant distinguishes itself from Duquette, defeating Plaintiff’s argument
that Grant must be overruled because it conflicts with Duquette. Grant, 228
Ariz. at 239, ¶¶ 13-15 (“[W]e conclude that Duquette does not apply to
treating physicians who are employees of a corporate defendant that is itself
a defendant in a medical malpractice action.”). And we see no reason,
under the facts of this case, to narrow the Grant court’s holding, which is
premised on the employer-employee relationship and patient expectations.
Id. at 239, ¶¶ 16-17.

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conveyed to Banner attorneys, which is protected under the attorney-client
privilege.

¶11 We do not, however, interpret the court’s December 6 order
to compel disclosure of information protected by the attorney-client
privilege. The court directed “the parties [to] disclose all information
obtained through ex-parte communication with any trial witness that is
intended for use at trial,” and later clarified the order was “limited to
information that is intended for use at trial,” rather than “the disclosure of
confidential information.” We read the order to require that the parties
satisfy their standard disclosure obligations under the Arizona Rules of
Civil Procedure, including Rule 26.1(a)(3), which requires the disclosure of
“a description of the substance—and not merely the subject matter—of the
testimony sufficient to fairly inform the other parties of each witness’
expected testimony.” Banner waives any privilege for information it
intends to elicit from its physician-employee at trial. Robert W. Baird & Co.
v. Whitten, 244 Ariz. 121, 127, ¶ 17 (App. 2017) (waiver of attorney-client
privilege occurs only when the party seeks to use protected information as
both sword and shield). We deny special action relief on Petitioners’ second
argument. 2

CONCLUSION

¶12 We accept jurisdiction and grant partial relief as set forth
above.

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

2 Given our holding, we need not reach Palmer’s argument regarding
the constitutionality of A.R.S. § 12-2234.

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