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

.

IN THE 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

LISA FAULKNER
, Plaintiff/Appellant
,

v.

LABORATORY CORPORATION OF AMERICA, et al.
,

Defendant s

/Appellee s

.
No. 1 CA

- CV 17

- 0787

Appeal from the Superior Court in Maricopa County

No. CV 2015

- 0041 4 4 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. C ounsel for Defe ndant s

/Appellee s FILED 10-11-2018FAULKNER v. LABORATORY CORP, et al. Decision of the Court

2 MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the c ourt, 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, den ying her motion for a new trial on damages , and award ing 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.

FACT S AN D 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

. Faul kner and her daughter, who is not a party to this appeal, brought a personal

- injury negligence action against Estervig and LCA

. ¶3 The d efendants stipulated that Estervig had negligent ly

caus ed the collision, and that LCA was vicariously liable for E stervig ’s negligence

. Th e d efendants denied , however, that the collision caused the
p laintiffs ’ alleged injuries.

¶4 The d efendants 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
, cond itioned on both offerees accepting the respective offers

. The
p laintiffs 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 d efendants 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. Decision of the Court

3 and they moved to exclude Dr. Yusupov ’s expert opi nion on timeliness grounds

. ¶6 The court excluded Dr. Patel’s calculation o f costs for future medical care , and precluded Faulkner from elicit ing 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 verdict s in favor of Faulkne r in the amount of $15,000 and in favor of her daughter in the amount of $200,000. The d efendants then moved for a n award of sanctions against Faulkner under Rule 68

. T he court imposed an $18,962.05 sanction again s t Faulkner , which reduced her judgment t o $0 and created a $3,962.05 award in favor of the d efendants

. The court denied Faulkner’s motion for a new trial on damages . She appeal s.

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 tha t 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 suchFAULKNER v. LABORATORY CORP, et al. Decision of the Court

4 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 Cour t Did Not Abuse Its Discretion b y 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 i n 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 cause d 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 thera py 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 ] injur i es were caused and or made symptomatic by th e 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 test imony under the then

- applicable version of Rule 26.1 , which in subsection (a)(6) required disclos ur e 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 concl usions.FAULKNER v. LABORATORY CORP, et al. Decision of the Court

5 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 expecte d testimony , the superior court may preclude the party from elicit ing 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 w he n the defendant s violated their Rule 26.1(a)(6) disclosure obligation by fail ing to disclose the “substance of the facts and opinions” and a “summary of the grounds” fo r the ir standard

- of

- care expert’s opinion s

. 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 hi story ) , 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 d efendants were “lying in wait” and used the disclosure violation s as a “weapon” for exclusion. Allstate rejected 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 opposi ng party’s inaction is just one factor. See id. at 288. And here, u nlike 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

– 9 1

. 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 testif y about her plans for follow

- up care with Dr. Patel , a nd the final jury instructions did not prohibit the jury from addressing future care and costs.FAULKNER v. LABORATORY CORP, et al. Decision of the Court

6 statement after their original attorneys withdrew, id. at 286
, Faulkner never served an adequate disclosure statement re garding 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 , 19 7 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: “ I t 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 sust ained 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 disclos ed D r. Yusupov as both a fact and an expert wit ness

. And w e find no abuse of discretion in the superior court ’s conclusion that the r edacted s entence was the opinion of an expert witness rather than a treating physician. Doctors who offer causation opinions based on their review of an other health care provider’s records are generally expert witnesses

. Sanchez v. Gama , 233 Ariz. 125, 128, ¶ 9 (App. 2013 ); s ee also Solimeno , 224 Ariz. at 79, ¶ 21 (“[T]here is a significant difference between a doctor testifying about raw test results th at 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 patien t , ” 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 causatio n 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 di scretion by excluding the opinion

.FAULKNER v. LABORATORY CORP, et al. Decision of the Court

7 II. THE SUPERIOR COURT DID N OT ABUSE ITS DISCRET ION BY DENYING FAULKNER’S M OTION FOR A NEW TRIA L 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 insuffi cient 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 pr ejudice 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 d efendants stipulat ed that the expenses were reasonable, usual
, and
cust omary 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, t he 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 o bserved a 98% improvement in her overall function and pain less than five months after the collision

. Further, a d efen se 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 impac t would not have caused the long

- term injuries alleged by Faulk n er , but rather would likely have result ed in “minor transient soreness.” An independent medical examiner testified that Faulkner had not incurred any new injuries, and that her pre

- existing c onditions 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. Decision of the Court

8 III. THE SUPERIOR COURT PROPE RLY AWARDED RULE 68 SANCTIONS.

¶21 F aulkner f inally 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, bu t 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 aw arded sanctions. 4

3 Because neither plaintiff accept ed the offer, Rule 68(f)(1), which describes the circumstances under which the maker of an apportioned offer may enforce accep tance 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 e xposure 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)

.FAULKNER v. LABORATORY CORP, et al. Decision of the Court

9 CONCLUSION

¶24 We affirm for the reasons set forth above

.