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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

LISA FAULKNER, Plaintiff/Appellant,

v.

LABORATORY CORPORATION OF AMERICA, et al.,

Defendants/Appellees.

No. 1 CA-CV 17-0787

Appeal from the Superior Court in Maricopa County

No. CV2015-004144

The Honorable Dawn M. Bergin, Judge

AFFIRMED

COUNSEL

SL Chapman LLC, Scottsdale

By Bradley Matthew Lakin, Robert W. Schmieder, II

Counsel for Plaintiff/Appellant

Jones Skelton & Hochuli PLC, Phoenix

By Phillip H. Stanfield, Jonathan Paul Barnes, Jr.

Counsel for Defendants/Appellees

FILED 10-11-2018
FAULKNER v. LABORATORY CORP, et al.

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2

MEMORANDUM DECISION

Judge Peter B. Swann delivered the decision of the court, in which Presiding 

Judge Kenton D. Jones and Judge David D. Weinzweig joined.

S W A N N, Judge:

¶1 This is a personal injury case arising from an automobile 

accident. Plaintiff Lisa Faulkner appeals the superior court’s rulings 

precluding expert testimony and evidence, denying her motion for a new 

trial on damages, and awarding sanctions against her under Ariz. R. Civ. P. 

(“Rule”) 68. We conclude that Faulkner’s disclosure violations justified the 

preclusion rulings, the jury’s verdict was consistent with credible evidence, 

and the court properly applied Rule 68 as that rule is currently written. We

therefore affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In 2013, Lance Estervig, while driving a vehicle owned by his 

employer Laboratory Corporation of America (“LCA”), collided with a 

vehicle driven by Faulkner, in which her minor daughter was a passenger. 

Faulkner and her daughter, who is not a party to this appeal, brought a

personal-injury negligence action against Estervig and LCA.

¶3 The defendants stipulated that Estervig had negligently

caused the collision, and that LCA was vicariously liable for Estervig’s

negligence. The defendants denied, however, that the collision caused the 

plaintiffs’ alleged injuries.

¶4 The defendants made a pretrial offer of judgment under Rule 

68(g) to resolve Faulkner’s claims for $35,000 and her daughter’s claims for 

$15,000, conditioned on both offerees accepting the respective offers. The 

plaintiffs did not accept the offer.

¶5 Faulkner timely disclosed Dr. Amit Patel as both a fact and 

expert witness and, after the expert disclosure deadline, sought treatment 

from and disclosed Dr. Igor Yusupov as an additional fact and expert 

witness. Faulkner later clarified that she wished to introduce Dr. Yusupov’s 

medical records but did not plan to call him as a witness. The defendants

moved to preclude Dr. Patel from offering expert opinions based on

Faulkner’s failure to disclose the substance of his anticipated testimony, 
FAULKNER v. LABORATORY CORP, et al.

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and they moved to exclude Dr. Yusupov’s expert opinion on timeliness 

grounds.

¶6 The court excluded Dr. Patel’s calculation of costs for future 

medical care, and precluded Faulkner from eliciting the doctor’s opinions 

on causation “without first providing related medical records to the Court 

sufficiently in advance of the witness testifying for the Court to make a 

ruling.” The court ultimately excluded Dr. Patel’s causation testimony after 

considering records that Faulkner provided on the third day of trial. The 

court held that the records did not articulate causation “because all [Dr. 

Patel] indicates is that she has a history of a motor vehicle accident, and that 

she has pain post motor vehicle collision. It doesn’t indicate that he did 

anything to determine that all of that was actually caused by the motor 

vehicle collision.” With respect to Dr. Yusupov, the court ordered redaction 

of his report’s sentence describing a “professional opinion” that Faulkner’s 

injuries were “casually related to the motor vehicle collision.”

¶7 After a six-day trial, the jury returned verdicts in favor of 

Faulkner in the amount of $15,000 and in favor of her daughter in the 

amount of $200,000. The defendants then moved for an award of sanctions 

against Faulkner under Rule 68. The court imposed an $18,962.05 sanction 

against Faulkner, which reduced her judgment to $0 and created a $3,962.05 

award in favor of the defendants. The court denied Faulkner’s motion for 

a new trial on damages. She appeals.

DISCUSSION

I. THE SUPERIOR COURT DID NOT ABUSE ITS DISCRETION BY 

LIMITING DR. PATEL’S TESTIMONY AND REDACTING DR. 

YUSUPOV’S REPORT.

¶8 Faulkner first contends that the superior court improperly 

limited Dr. Patel’s testimony and redacted Dr. Yusupov’s report.

¶9 The superior court has broad discretion in determining 

whether a party properly disclosed evidence and whether that evidence

should be admitted at trial. Solimeno v. Yonan, 224 Ariz. 74, 77, ¶ 9 (App. 

2010). “Trial judges are better able than appellate courts to decide if a 

disclosure violation has occurred in the context of a given case and the 

practical effect of any non-disclosure.” Id. We will not disturb such 
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decisions on appeal absent an abuse of discretion. Id. We discern no abuse 

of discretion in the rulings at issue here.1

A. The Superior Court Did Not Abuse Its Discretion by Limiting 

Dr. Patel’s Testimony.

1. Dr. Patel was disclosed as an expert witness.

¶10 Faulkner contends that she sought to elicit opinion testimony 

from Dr. Patel as a treating-physician fact witness rather than as an expert. 

But she disclosed him as both a fact and expert witness. Specifically, she 

disclosed that she expected Dr. Patel, as a fact witness, to testify “regarding 

his treatment of [her], the pain and suffering endured by [her], disability, 

and disfigurement, and any other matters relevant to the claims asserted in 

this lawsuit, including, but not limited to, opinions regarding causation, 

treatment and prognosis of [her].” And in her expert disclosure, she added

that she expected Dr. Patel to provide opinions regarding causation, 

permanency, and future medical costs:

Dr. Patel is expected to opine that [Faulkner’s] injuries

and/or conditions referenced above were caused and/or 

made symptomatic by the motor vehicle accident of 

November 6, 2013. He will further testify that [Faulkner] will 

require one office visit, at $200-$300 per visit, for the next two 

to three years; three to four injections per month, at $400-$500 

per injection, for the next two to three years; imaging for the 

next two to three years at $1000 per imaging study four times 

a year; and neuromuscular therapy at $200-$300 per session 

two times a week for the next two to three years. He may 

opine that future care beyond these time frames are [sic] 

necessary.

Dr. Patel is expected to testify that [Faulkner’s] injuries 

were caused and or made symptomatic by the motor vehicle 

crash of November 6, 2013. He is further expected to testify 

as to whether the injuries are permanent in nature. He may 

rely [on] and/or reference medical literature.

¶11 In view of the foregoing, we analyze the preclusion of Dr. 

Patel’s testimony under the then-applicable version of Rule 26.1, which in

subsection (a)(6) required disclosure of “the substance of the facts and 

 

1 We note, however, that we would have found no abuse of discretion 

had the superior court reached opposite conclusions.
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opinions to which the expert is expected to testify [and] a summary of the 

grounds for each opinion.”

2. The superior court acted within its discretion by 

determining that Faulkner failed to disclose sufficient 

grounds for Dr. Patel’s proposed expert opinions.

¶12 When a party fails to timely disclose the substance of the facts 

and opinions of an expert’s expected testimony, the superior court may 

preclude the party from eliciting that testimony at trial. Englert v. Carondelet 

Health Network, 199 Ariz. 21, 25, ¶ 6 (App. 2000); Rule 37(c)(1). In Solimeno, 

for example, we affirmed the court’s grant of a mistrial when the defendants

violated their Rule 26.1(a)(6) disclosure obligation by failing to disclose the 

“substance of the facts and opinions” and a “summary of the grounds” for 

their standard-of-care expert’s opinions. 224 Ariz. at 78, ¶ 15. Similarly 

here, in view of Faulkner’s failure to disclose the required grounds for Dr. 

Patel’s opinions on both causation and future care and costs (and her failure 

at trial to direct the court to medical records describing causation rather 

than merely reciting patient history), we hold that the court did not abuse 

its discretion by precluding Dr. Patel from providing those opinions.

2 For 

the same reasons, neither did the court abuse its discretion by precluding 

Dr. Patel from testifying about causation.

¶13 Citing Allstate v. O’Toole, 182 Ariz. 284 (1995), Faulkner 

contends that the defendants were “lying in wait” and used the disclosure 

violations as a “weapon” for exclusion. Allstaterejected the proposition that 

the court must automatically exclude witnesses and exhibits for late 

disclosures where no good cause is shown, and held that “an opposing 

party’s action or inaction in attempting to resolve a discovery dispute short 

of calling for the exclusion of evidence can be an important factor.” Id. at 

285–88. But an opposing party’s inaction is just one factor. See id. at 288. 

And here, unlike the Allstate plaintiffs, who untimely filed their disclosure 

 

2 Faulkner’s reliance on Greco v. Manolakos, 24 Ariz. App. 490 (1975), is 

misplaced. In Greco, the superior court barred the plaintiff’s claim for future 

medical expenses based on her failure to update her answers to 

interrogatories. Id. at 490–91. We held that on the facts of that case, 

complete foreclosure of the plaintiff’s claim was unwarranted. Id. at 

491–92. Here, no such drastic sanction was imposed. Faulkner was 

permitted to testify about her plans for follow-up care with Dr. Patel, and 

the final jury instructions did not prohibit the jury from addressing future 

care and costs.
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statement after their original attorneys withdrew, id. at 286, Faulkner never

served an adequate disclosure statement regarding the precluded expert 

testimony. Faulkner had an affirmative duty under Rule 26.1(a)(6) to 

disclose the substance of, and grounds for, Dr. Patel’s expert opinions. 

Solimeno, 224 Ariz. at 80, ¶ 23 (citing Norwest Bank (Minn.), N.A. v. 

Symington, 197 Ariz. 181, 185–86, ¶ 17 (App. 2000) (“[A]t the outset of a case 

the parties must make a full . . . disclosure of all relevant information . . . .

No longer will it be advantageous to play games of semantics (‘If he’d have 

just asked the right question, I would gladly have disclosed the 

material’).”)). Faulkner did not do so, and the superior court acted within 

its discretion to exclude the inadequately disclosed testimony.

B. The Superior Court Did Not Abuse Its Discretion by 

Redacting Dr. Yusupov’s Report.

¶14 The superior court redacted the following sentence from Dr. 

Yusupov’s report: “It is my professional opinion to a reasonable degree of 

medical probability that this patient’s lumbar pathologies causally related 

to the motor vehicle collision that she sustained during the MVA that 

occurred on 11/6/13.”

¶15 Faulkner contends that the superior court erred by 

considering Dr. Yusupov, a treating physician, as an expert witness. But, 

as with Dr. Patel, Faulkner disclosed Dr. Yusupov as both a fact and an 

expert witness. And we find no abuse of discretion in the superior court’s 

conclusion that the redacted sentence was the opinion of an expert witness 

rather than a treating physician. Doctors who offer causation opinions 

based on their review of another health care provider’s records are 

generally expert witnesses. Sanchez v. Gama, 233 Ariz. 125, 128, ¶ 9 (App. 

2013); see also Solimeno, 224 Ariz. at 79, ¶ 21 (“[T]here is a significant 

difference between a doctor testifying about raw test results that are 

included in a disclosed medical record . . . and explaining to the jury the 

significance of those results . . . .”). And “while causation questions bearing 

on culpability for an injury . . . may be fact-based in a particular case if the 

professional formed such opinions in treating a patient,” State v. Whitten, 

228 Ariz. 17, 22, ¶ 20 (App. 2011), the superior court reasonably concluded 

that this was not the case here, where Dr. Yusupov’s causation opinion 

invoked standard expert language and relied on his review of other medical 

records. Accordingly, Faulkner was required to disclose the grounds for 

the opinion under Rule 26.1(a)(6). She did not do so, and the superior court 

did not abuse its discretion by excluding the opinion.
FAULKNER v. LABORATORY CORP, et al.

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II. THE SUPERIOR COURT DID NOT ABUSE ITS DISCRETION BY 

DENYING FAULKNER’S MOTION FOR A NEW TRIAL ON 

DAMAGES.

¶16 Faulkner next contends that she was entitled to a new trial on 

damages under Rule 59(a)(1)(E) because her medical expenses far exceeded 

the jury’s award.

¶17 We review the superior court’s denial of a new trial motion

for an abuse of discretion. Spring v. Bradford, 243 Ariz. 167, 170, ¶ 11 (2017). 

The court must grant a motion for new trial based on insufficient damages 

if “the damage award is tainted by ‘passion or prejudice,’ or is ‘shocking[ly] 

or flagrantly outrageous.’” Soto v. Sacco, 242 Ariz. 474, 478, ¶ 9 (2017)

(citation omitted). “The test for whether the jury award is the result of 

passion or prejudice is whether the amount of the verdict is so unreasonable 

and outrageous as to shock the conscience.” Mammo v. State, 138 Ariz. 528, 

532 (App. 1983). A “verdict will not be deemed the result of passion and 

prejudice if within the range of credible evidence.” Flieger v. Reeb, 120 Ariz. 

31, 33 (App. 1978).

¶18 Faulkner presented evidence to the jury that she incurred 

$103,217.38 in medical expenses resulting from the collision. The 

defendants stipulated that the expenses were reasonable, usual, and 

customary for the listed services, but they disputed that the expenses 

related to the collision.

¶19 The jury received credible evidence supporting the 

defendants’ position. For example, the defendants presented medical 

records documenting, less than a month before the collision, Faulkner’s 

“[l]ow back pain” and “persistent discomfort” in her lumbar spine and 

right shoulder. The jury also heard testimony and evaluated medical 

records demonstrating that Faulkner’s chiropractor observed a 98% 

improvement in her overall function and pain less than five months after 

the collision. Further, a defense expert testified that Estervig’s vehicle was 

going no greater than 7.2 miles per hour at the time of the collision, and that 

the impact would not have caused the long-term injuries alleged by 

Faulkner, but rather would likely have resulted in “minor transient 

soreness.” An independent medical examiner testified that Faulkner had 

not incurred any new injuries, and that her pre-existing conditions had not 

changed because of the collision.

¶20 In view of the foregoing evidence, we cannot say that the

jury’s award of $15,000 to Faulkner shocks the conscience.
FAULKNER v. LABORATORY CORP, et al.

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III. THE SUPERIOR COURT PROPERLY AWARDED RULE 68 

SANCTIONS.

¶21 Faulkner finally contends that the superior court erred by 

imposing Rule 68 sanctions. We review the interpretation and application 

of the rule de novo. Stafford v. Burns, 241 Ariz. 474, 484, ¶ 38 (App. 2017).

¶22 Rule 68(g) provides that “[a] party who rejects an offer, but 

does not obtain a more favorable judgment, must pay as a sanction . . . the 

offeror’s reasonable expert witness fees and double the taxable 

costs . . . incurred after the offer date; and . . . prejudgment interest on 

unliquidated claims accruing from the offer date.”

¶23 Faulkner contends that because the defendants’ rejected 

pretrial offer of judgment made a “hybrid offer” to her and her daughter, 

the court was required to measure the combined offers ($35,000 to Faulkner 

and $15,000 to her daughter) against the combined judgments ($15,000 to 

Faulkner and $200,000 to her daughter) when assessing the propriety of 

sanctions under Rule 68(g). We reject Faulkner’s argument. The offer was 

structured in accordance with Rule 68(f), which prohibits unapportioned 

offers to multiple offerees, authorizes “apportioned offer[s] to multiple 

offerees conditioned by acceptance by all of the offerees,” and provides that 

“[t]he sanctions provided in this rule apply to each offeree who did not 

accept the apportioned offer.”3 Adoption of Faulkner’s theory would 

transform the defendants’ apportioned offer into an invalid unapportioned 

offer. The superior court properly measured the $35,000 offer to Faulkner 

against her $15,000 judgment, and properly awarded sanctions.4

 

3 Because neither plaintiff accepted the offer, Rule 68(f)(1), which 

describes the circumstances under which the maker of an apportioned offer 

may enforce acceptance by fewer than all offerees, does not apply.

4 We note, as a general matter, that the correct application of Rule 68 

may have counterintuitive and even unjust consequences in some cases. 

For example, “[i]f the defendant/offeror underestimates his exposure and 

the plaintiff/offeree obtains a more favorable judgment—even by a single 

dollar—the offeror stands liable for costs and expert witness fees.” Stafford, 

241 Ariz. at 484, ¶ 42 (emphasis added).
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CONCLUSION

¶24 We affirm for the reasons set forth above.