IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

KORTNEY RAE ST. GEORGE and JOHN ST. GEORGE, wife and 

husband, Plaintiffs/Appellants,

v.

CHARLES STEVEN PLIMPTON, M.D., individually; C. STEVEN 

PLIMPTON M.D., P.C., an Arizona professional corporation; ELLEN 

MARIE FRANKLIN, CNM, individually, Defendants/Appellees.

No. 1 CA-CV 15-0144

Appeal from the Superior Court in Maricopa County

No. CV2012-005446

The Honorable Patricia A. Starr, Judge

AFFIRMED

COUNSEL

Rivera Law Group PC, Phoenix

By Sal J. Rivera

Counsel for Plaintiffs/Appellants

Kent & Wittekind PC, Phoenix

By Richard A. Kent and Cynthia Y. Patane

Co-Counsel for Plimpton Defendants/Appellees

Jones, Skelton & Hochuli PLC, Phoenix

By Eileen Dennis GilBride

Co-Counsel for Plimpton Defendants/Appellees
2

Campbell Yost Clare & Norell PC, Phoenix

By Stephen C. Yost

Counsel for Defendant/Appellee Ellen Marie Franklin

OPINION

Presiding Judge Andrew W. Gould delivered the opinion of the Court, in 

which Judge Peter B. Swann and Judge Patricia A. Orozco joined.

G O U L D, Judge:

¶1 Kortney Rae St. George (“St. George”) and John St. George

(collectively, “the St. Georges”) appeal from the superior court’s order 

granting summary judgment to Charles Steven Plimpton, M.D. and C. 

Steven Plimpton, M.D., P.C. (collectively “Dr. Plimpton”) and Ellen Marie 

Franklin, CNM (“Nurse Franklin”). For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 This medical malpractice case is based on obstetrical and 

nurse-midwifery services rendered to St. George. The St. Georges allege

Nurse Franklin, a certified nurse midwife, injured St. George by negligently

applying pubic pressure during the delivery of her baby. 

¶3 On April 6, 2012, the St. Georges filed a medical malpractice 

action against Dr. Plimpton and Nurse Franklin.1 The St. Georges also 

alleged a separate claim for negligent supervision against Phoenix Baptist 

Hospital. 

¶4 In January 2013, the St. Georges filed a certification stating 

that expert testimony was necessary to prove their medical malpractice 

claims. See Ariz. Rev. Stat. (“A.R.S.”) section 12-2603(A) (requiring a 

claimant in a medical malpractice action to certify, at the time her claim is 

filed and served, “whether or not expert opinion testimony is necessary to 

prove the health care professional’s standard of care or liability for the 

claim.”) On February 22, 2013, the St. Georges disclosed that Dr. Harry 

Watters (“Dr. Watters”), a board-certified obstetrician/gynecologist, would 

 

1 The St. Georges also sued Abrazo Healthcare, and VHS of Phoenix. 

All of these defendants, including Phoenix Baptist Hospital, were later 

dismissed from the lawsuit without prejudice. 
ST. GEORGE v. PLIMPTON

Opinion of the Court

3

testify as their standard of care expert for both Dr. Plimpton and Nurse 

Franklin. 

¶5 In March 2013, the St. Georges disclosed Dr. Watters’ 

preliminary expert opinion affidavit as required by A.R.S. § 12-2603(B). In 

his affidavit, Dr. Watters avowed that he has “supervised Certified NurseMidWifes (CFM) throughout [his] career,” and described various 

deviations in the standard of care by Nurse Franklin. Dr. Watters also 

asserted there was “inadequate doctor supervision of” Nurse Franklin, and 

“[t]he doctor should have been much more involved in this traumatic 

delivery.” 

¶6 Dr. Watters was deposed in October 2014. At his deposition, 

Dr. Watters testified that, in his opinion, Nurse Franklin fell below the 

standard of care for a certified nurse midwife. Dr. Watters also testified that 

he has worked with and supervised nurse mid-wives throughout his career, 

but has never practiced as a nurse-midwife. 

¶7 During his deposition, Dr. Watters also testified that Dr. 

Plimpton’s “relationship” with Nurse Franklin fell below the standard of 

care. However, Dr. Watters could not specify any act or omission by Dr. 

Plimpton that fell below the standard of care as to his treatment of St. 

George. Specifically, Dr. Watters testified:

Q: So as you sit here today, you cannot state, to a 

reasonable degree of probability, that Dr. Plimpton 

actually fell below the standard of care?

A: That’s correct. 

¶8 After his deposition, Dr. Watters submitted a letter entitled 

“Correction to Deposition.”2 In his letter, Dr. Watters again opined that 

Nurse Franklin fell below the standard of care. He also stated that Dr. 

Plimpton “violated his obligation by hiring a nurse midwife who is not 

working under a protocol in his office and was not given a set of protocols 

to appropriately monitor patients.” 

 

2 Dr. Plimpton and Nurse Franklin moved to strike the corrections

letter as a sham affidavit on the grounds it contained statements and 

opinions that contradicted Dr. Watters’ deposition testimony. The superior 

court denied the motion. 
ST. GEORGE v. PLIMPTON

Opinion of the Court

4

¶9 In February 2014, Dr. Plimpton and Nurse Franklin moved for 

summary judgment. Dr. Plimpton argued summary judgment was 

warranted because the St. Georges failed to present expert testimony 

showing that Dr. Plimpton deviated from the standard of care. Nurse 

Franklin moved for summary judgment on the grounds Dr. Watters was 

not qualified to testify as a certified nurse midwife expert.

¶10 The court held oral argument on the motions on December 5, 

2014, and issued a minute entry granting summary judgment in favor of 

Dr. Plimpton and Nurse Franklin. The St. Georges timely appealed. 

LEGAL DISCUSSION

I. Standard of Review

¶11 Summary judgment is proper when “there is no genuine 

dispute as to any material fact and the moving party is entitled to judgment 

as a matter of law.” Ariz. R. Civ. P. 56(a). We review the superior court’s 

order granting summary judgment in favor of Dr. Plimpton and Nurse 

Franklin de novo, and view the evidence and any reasonable inferences 

drawn therefrom in the light most favorable to the St. Georges. Wells Fargo 

Bank v. Arizona Laborers, Teamsters and Cement Masons Local No. 395 Pension 

Trust Fund, 201 Ariz. 474, 482, ¶ 13 (2002). We review the superior court’s 

orders regarding expert qualifications and its denial of relief pursuant to 

Arizona Rule of Civil Procedure (“Rule”) 56(f) for an abuse of discretion. 

Baker v. University Physicians Healthcare, 231 Ariz. 379, 387, ¶ 30 (2013)

(“Baker II”) (expert qualifications); Grand v. Nacchio, 214 Ariz. 9, 29, ¶ 73 

(App. 2006) (Rule 56(f) relief). 

II. The Superior Court Correctly Granted Summary Judgment to Dr. 

Plimpton

¶12 To prove their medical malpractice claim against Dr. 

Plimpton, the St. Georges bear the burden of establishing (1) Dr. Plimpton 

breached the applicable standard of care, and (2) his breach proximately 

caused St. George’s injury. A.R.S. § 12-563; Kreisman v. Thomas, 12 Ariz.

App. 215, 220 (1970); see Gurr v. Wilcutt, 146 Ariz. 575, 581 (App. 1985) (in a 

medical malpractice case, a plaintiff must show the standard of care was 

breached to defeat a motion for summary judgment). With limited

exceptions not applicable here, the St. Georges were required to prove a 

breach of the standard of care through expert testimony. Barrett v. 

Samaritan Health Servs. Inc., 153 Ariz. 138, 141 (App. 1987). 
ST. GEORGE v. PLIMPTON

Opinion of the Court

5

¶13 Here, summary judgment was warranted because the St. 

Georges failed to present expert testimony showing that Dr. Plimpton 

breached the standard of care. During his deposition, Dr. Watters testified

that he could not identify any standard of care violations committed by Dr. 

Plimpton. Dr. Watters’ “correction letter” also does not specify how Dr. 

Plimpton allegedly breached the standard of care. 

¶14 The St. Georges argue, however, that Dr. Watters’ testimony 

shows that Dr. Plimpton negligently supervised Nurse Franklin. In support 

of this argument, the St. Georges cite Dr. Watters’ preliminary affidavit, 

which states “[t]here was inadequate doctor supervision of the nursemidwife,” and Dr. Watters’ deposition testimony that the physician/nurse 

midwife “relationship” fell below the standard of care.

¶15 The St. Georges never alleged an independent claim for 

negligent supervision against Dr. Plimpton. Rather, the St. George’s

allegation that Dr. Plimpton “failed to supervise” Nurse Franklin appears 

to be encompassed in their medical malpractice claim. Cf. Humana Hosp. 

Desert Valley v. Superior Ct., 154 Ariz. 396, 400 (App. 1987) (to allege an 

independent claim for negligent supervision, a plaintiff must establish the 

employer knew or should have known that the employee “was not 

competent to provide certain care,” and that the employer’s failure to 

supervise the employee caused injury). As a result, the St. Georges were 

required to prove, by means of expert testimony, (1) the standard of care 

that applied to Dr. Plimpton in supervising a certified nurse midwife, and 

(2) that Dr. Plimpton breached the applicable standard of care. A.R.S. § 12-

563; Barrett, 153 Ariz. at 141. 

¶16 The St. Georges’ negligent supervision claim fails. At his 

deposition, Dr. Watters never testified as to the standard of care Dr. 

Plimpton should have followed in supervising Nurse Franklin, or how Dr. 

Plimpton breached that standard. Similarly, in his correction letter, Dr. 

Watters did not state what standard of care applied to Dr. Plimpton

regarding his supervision of Nurse Franklin, a certified nurse midwife. We 

find no error. 

III. The Superior Court Correctly Granted Summary Judgment to 

Nurse Franklin

A. Expert Testimony is Required to Establish Nurse Franklin 

Breached the Standard of Care

¶17 The St. Georges argue that because Nurse Franklin violated 

regulations governing the practice of midwifery, A.R.S. §§ 36-751 et seq. and 
ST. GEORGE v. PLIMPTON

Opinion of the Court

6

Arizona Administrative Code Title 9, Chapter 16, Nurse Franklin is 

negligent per se, and no expert testimony is required to prove a deviation 

in the standard of care. 

¶18 The standard of care may be “established by a legislative 

enactment” or “adopted by the court from a legislative enactment.” Tellez 

v. Saban, 188 Ariz. 165, 169 (App. 1996) (citing Restatement (Second) of Torts 

§ 285, at 20 (1965)). A person who violates a legislative enactment that 

establishes the standard of care or that has been adopted by a court as the 

relevant standard of care is negligent per se and the violation is conclusive 

as to negligence. Id.; Brannigan v. Raybuck, 136 Ariz. 513, 517 (1983), 

superseded by statute on other grounds as stated in Carrillo v. El Mirage 

Roadhouse, Inc., 164 Ariz. 364, 368 n.1 (App. 1990). 

¶19 As a threshold matter, Nurse Franklin is not a midwife subject 

to regulation by the midwifery statutes and regulations. Nurse Franklin is 

a certified nurse midwife, and while midwives are licensed by the Arizona 

Department of Health Services (“ADHS”), certified nurse midwives are 

certified by the Arizona State Board of Nursing (“ASBN”). A.R.S. § 36-753 

(stating that a person desiring to obtain a license to practice midwifery shall 

apply to the director of ADHS); A.A.C. R9-16-101(7) (defining “certified 

nurse midwife” as an individual certified by the ASBN). As a result, 

registered nurses certified by the ASBN as qualified nurse-midwives are 

exempt from the licensure requirements of the midwifery statutes. A.R.S. 

§§ 36-752(A), (B)(2) (stating “no person may act as a midwife without being 

licensed pursuant to this article” . . . except “[t]he following persons are 

exempt from the licensure requirements of this section. . . [a] registered 

nurse certified by the state board of nursing as a qualified nurse-midwife.”). 

¶20 The St. Georges argue, however, that the midwifery statutes 

apply to Nurse Franklin because she meets the definition of “midwife” in 

the midwifery statutes. Under the midwifery statutes, a midwife is defined 

as “a person who delivers a baby or provides health care related to 

pregnancy, labor, delivery and postpartum care of the mother and her 

infant.” A.R.S. § 36-751(3). 

¶21 We reject the St. Georges’ argument because it would lead to 

absurd results. See In re Zaritsky, 198 Ariz. 599, 603 (App. 2000) (when 

interpreting a statute, “we presume that the legislature did not intend an 

absurd result and our construction must avoid such a consequence.”). The 

St. Georges’ construction creates a confusing result; even though registered 

nurses are exempt from nurse midwife licensing requirements, they are 

nonetheless subject to all of the regulations that apply to nurse midwives. 
ST. GEORGE v. PLIMPTON

Opinion of the Court

7

Additionally, accepting the St. Georges’ construction means that anyone 

who delivers a baby—including an obstetrician—is subject to the 

midwifery statutes. 

¶22 For these reasons, we agree with the superior court that the 

St. George’s theory of negligence per se does not apply here and conclude 

that expert testimony was required to prove any deviation in the standard 

of care by Nurse Franklin. Barrett, 153 Ariz. at 141.

B. Dr. Watters Is Not Qualified to Render Standard of Care 

Opinions Against Nurse Franklin

¶23 Next, the St. Georges argue that if expert testimony is 

necessary, Dr. Watters is qualified to testify about the standard of care 

applicable to Nurse Franklin. 

¶24 When a party certifies that expert testimony is required to 

establish a health care professional’s standard of care, the party must serve

a preliminary expert opinion affidavit stating “[t]he expert’s qualifications 

to express an opinion on the health care professional’s standard of care or 

liability for the claim.” A.R.S. § 12-2603(B)(1). The qualifications for a 

standard of care expert are governed by A.R.S. § 12-2604. Cornerstone Hosp. 

of Southeast Arizona, L.L.C. v. Marner, 231 Ariz. 67, 73, ¶ 18 (App. 2012). 

¶25 A.R.S. § 12-2604 requires that if a defendant health care 

provider is a specialist, the plaintiff’s expert must also practice in the same 

specialty at the time of the events giving rise to the lawsuit. A.R.S. § 12-

2604(A)(1). In addition, A.R.S. § 12-2604 requires all plaintiff’s experts, 

including specialists, to have devoted a majority of their professional time 

to “[t]he active clinical practice of the same health profession as the 

defendant,” and/or “[t]he instruction of students . . . in the same health

profession as the defendant.” A.R.S. § 12-2604(A)(2)(a)-(b). This clinical 

practice and/or instruction must take place “[d]uring the year immediately 

preceding the occurrence giving rise to the lawsuit.” Id. 

¶26 Nurse Franklin is a licensed registered nurse and a certified 

nurse midwife. Thus, pursuant to A.R.S. § 12-2604(A)(2), any expert 

testifying against her must be a nurse, or someone who spends the 

“majority” of his time instructing nurses. Cornerstone, 231 Ariz. at 79, ¶ 41

(stating that where the defendant health care provider in a case involving 

allegations of medical negligence is a registered nurse, nursing is the health 

profession for purposes of A.R.S. § 12-2604(A)(2)); Rasor v. Northwest Hosp., 

LLC, 239 Ariz. 546, 567, ¶ 11 (App. 2016) (holding that nursing qualifies as 

a “health profession” for the purposes of A.R.S. § 12-2604(A)(2)). Moreover, 
ST. GEORGE v. PLIMPTON

Opinion of the Court

8

under § A.R.S. § 12-2604(A)(1), because Nurse Franklin is certified by the 

ASBN as a certified nurse midwife, any standard of care expert testifying 

against her must likewise be a certified nurse midwife. Baker, 231 Ariz. at 

385, ¶ 21 (construing “‘specialty’ for purposes of § 12-2604 as referring to a 

limited area of medicine in which a [health care provider] is or may become 

board certified”). 

¶27 Here, the superior court correctly ruled that Dr. Watters is not 

qualified under A.R.S. § 12-2604(A) to testify against Nurse Franklin. Dr. 

Watters is not a nurse or a certified nurse midwife. Additionally, there is 

no evidence that he spent the majority of his time during the year prior to 

the events giving rise to this lawsuit instructing nurses or certified nurse 

midwives. A.R.S. § 12-2604(A)(2).

C. The Superior Court Did Not Abuse its Discretion in 

Declining to Grant Additional Time to Obtain an Expert

¶28 Finally, the St. Georges argue the superior court abused its 

discretion in denying their request for additional time to obtain a certified 

nurse midwife expert. 

¶29 During oral argument on the motions for summary judgment, 

the St. Georges, for the first time, requested additional time to obtain a 

certified nurse midwife to testify against Nurse Franklin. The superior 

court denied their request. 

¶30 Pursuant to Ariz. R. Civ. P. 56(f), a court may defer 

considering a summary judgment motion and allow the non-moving party 

time to obtain additional evidence. The St. Georges’ oral motion did not, 

however, meet the requirements for Rule 56(f) relief. 

¶31 In order to obtain Rule 56(f) relief, a party must 

submit a sworn statement specifically describing the reasons 

justifying delay, including “(1) the particular evidence 

beyond the party’s control; (2) the location of the evidence; (3) 

what the party believes the evidence will reveal; (4) the 

methods to be used to obtain it; and (5) an estimate of the 

amount of time the additional discovery will require.”

Grand, 214 Ariz. at 29, ¶ 72 (internal citations omitted) (quoting Magellan 

South Mountain Ltd. P’ship v. Maricopa Cty., 192 Ariz. 499, 502, ¶ 8 (App. 

1998)). 
ST. GEORGE v. PLIMPTON

Opinion of the Court

9

¶32 It is undisputed that the St. Georges did not submit a sworn 

statement in compliance with Rule 56(f). Moreover, the St. Georges did not 

advise the superior court at oral argument that they had located a qualified 

certified nurse midwife expert and/or that such an expert would be 

disclosed by a date certain. Additionally, the St. Georges failed to advise

the court how long it would take to obtain a qualified expert, or provide 

any other information that arguably would bring the request in compliance 

with Rule 56(f). 

¶33 We also reject the St. Georges’ argument that the court should 

have granted them additional time because, at the time their lawsuit was 

pending, the requirements of A.R.S. § 12-2604 were ambiguous. 

Specifically, the St. Georges contend that until Baker II was published by the 

Arizona Supreme Court in March 2013, it was unclear whether A.R.S. § 12-

2604 required them to obtain a nurse or a certified nurse midwife expert to 

prove their claim against Nurse Franklin.

¶34 The St. Georges certified expert testimony was necessary to 

prove their claims in January 2013, a month after Division Two of this court 

published Cornerstone, which confirmed that where the defendant health 

care provider is a registered nurse, nursing is the health profession for 

purposes of § 12-2604(A)(2). Cornerstone, 231 Ariz. at 79, ¶ 41 (published 

Dec. 7, 2012). At that time, the St. Georges had not disclosed their standard 

of care expert or submitted their preliminary expert opinion affidavit. Just 

two months later, our Supreme Court published Baker II, which construed 

“‘specialty’ for purposes of A.R.S. § 12-2604 as referring to a limited area of 

medicine in which a [health care provider] is or may become board 

certified.” Baker II, 231 Ariz. at 385, ¶ 21 (published March 12, 2013). 

¶35 Notwithstanding these two decisions clarifying the 

qualifications for experts under A.R.S. § 12-2604, the St. Georges disclosed 

Dr. Watters as their standard of care expert for Nurse Franklin. 

Additionally, they did not supplement their expert disclosure by the July 

12, 2013, expert disclosure deadline by identifying a nurse or nurse midwife 

expert. 

¶36 When the St. Georges produced Dr. Watters for a deposition 

in January 2014 to testify about Nurse Franklin’s standard of care, nine 

months had elapsed since Baker II had been issued, and over a year had 

elapsed since Cornerstone had been published. In February 2014, when 

Nurse Franklin filed her motion for summary judgment specifically 

challenging Dr. Watters’ qualifications to testify as an expert under A.R.S. 

§ 12-2604, the St. Georges did not seek Rule 56(f) relief to obtain a qualified 
ST. GEORGE v. PLIMPTON

Opinion of the Court

10

expert. Indeed, it was not until December 2014, approximately two years 

after Cornerstone and Baker II were published, that the St. Georges sought 

leave to obtain a nurse or certified nurse midwife expert to prove their claim 

against Nurse Franklin.

¶37 Given these circumstances, we find the superior court did not 

abuse its discretion in declining to extend additional time to the St. Georges 

to obtain a qualified expert against Nurse Franklin. 

CONCLUSION

¶38 For the foregoing reasons, we affirm. We award costs to Dr. 

Plimpton and Nurse Franklin upon compliance with Arizona Rule of Civil 

Appellate Procedure 21.