NOTICE: NOT FOR PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE

LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

BILLY BRUMETT, et al., Plaintiffs/Appellees, 

v.

MGA HOME HEALTHCARE, L.L.C., et al., Defendants/Appellants.

No. 1 CA-CV 15-0047

Appeal from the Superior Court in Maricopa County

No. CV 2010-092697

The Honorable David M. Talamante, Judge

VACATED AND REMANDED

COUNSEL

Gregory Law Group, Gilbert

By Robert M. Gregory

Counsel for Plaintiffs/Appellees

Law Offices of Broening Oberg Woods & Wilson, PC, Phoenix

By James R. Broening, T. Scott King, Michelle L. Donovan, Kevin R. Myer

Counsel for Defendants/Appellants
BRUMETT v. MGA HOME

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2

MEMORANDUM DECISION

Judge Margaret H. Downie delivered the decision of the Court, in which 

Acting Presiding Judge Samuel A. Thumma and Judge Mark R. Moran1

joined.

D O W N I E, Judge:

¶1 MGA Home Healthcare, L.L.C. (“MGA”) and Susan Bosman 

(collectively, “Defendants”) appeal the superior court’s order granting a 

new trial to Billy and Angela Brumett (collectively, “Plaintiffs”).

2 For the 

following reasons, we vacate the new trial order and remand to the 

superior court with instructions to enter judgment in favor of Defendants.

FACTS AND PROCEDURAL HISTORY

¶2 MGA provided in-home nursing services for Connie

Brumett. Connie required 24-hour care and had a jejunostomy tube (“Jtube” or “feeding tube”) through which medications and nutrients were 

administered. Billy Brumett cared for Connie from 7:00 a.m. to 3:00 p.m.; 

Lois Hickenbottom was Connie’s caregiver between 3:00 p.m. and 11:00 

p.m.; and Susan Bosman, a licensed practical nurse employed by MGA, 

cared for Connie from 11:00 p.m. to 7:00 a.m. 

¶3 On November 23, 2009, Billy left a note asking Bosman to 

adjust Connie’s J-tube because it “kept migrating outwards.” With

Hickenbottom’s assistance, Bosman adjusted the J-tube. Connie was 

admitted to the hospital the following day. She underwent surgery, 

where it was determined she had a perforated jejunum. The surgeon 

removed a “fairly stiff” tube with a sharp tip. Connie remained 

hospitalized until her death on December 17, 2009.

 

1 Pursuant to Article VI, Section 3 of the Arizona Constitution, the 

Arizona Supreme Court designated the Honorable Mark R. Moran, Judge 

of the Arizona Superior Court, to sit in this matter.

2 Billy Brumett is Connie Brumett’s husband, and Angela Brumett is 

Connie’s daughter. We refer to the Brumetts by their first names when 

necessary to distinguish between them.
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3

¶4 Plaintiffs sued MGA and Bosman, alleging violations of the 

Adult Protective Services Act, Arizona Revised Statutes (“A.R.S.”) sections

46-451, et seq. (“APSA”), wrongful death, fraudulent misrepresentation, 

and negligent misrepresentation. The superior court entered summary 

judgment for Defendants on the APSA and misrepresentation claims. The 

wrongful death claim proceeded to trial. 

¶5 The jury returned a defense verdict, and Plaintiffs moved for

a new trial. The superior court granted a new trial based on two of the 

grounds urged by Plaintiffs: (1) Defendants’ purported violation of a 

ruling on a motion in limine regarding Connie’s J-tube; and (2) the court 

erroneously prevented Plaintiffs from presenting testimony “regarding 

the hardening of the feeding tube.” 

¶6 Defendants timely appealed. We have jurisdiction pursuant 

to A.R.S. §§ 12-120.21(A)(1) and -2101(A)(5)(a). 

DISCUSSION

¶7 This Court reviews rulings on motions for new trial for an 

abuse of discretion. Cal X-Tra v. W.V.S.V. Holdings, L.L.C., 229 Ariz. 377, 

403, ¶ 88 (App. 2012). “In our review, we ‘scrutinize with care an order 

granting a new trial’ because ‘meaningful review in such cases is required 

to maintain the integrity of the jury trial system and the practical value of 

court adjudication.’” Id. (quoting Zugsmith v. Mullins, 86 Ariz. 236, 237–38 

(1959)). However, “we generally afford the trial court wide deference 

because the judge sees the witnesses, hears the testimony, and has a 

special perspective of the relationship between the evidence and the 

verdict which cannot be recreated by a reviewing court from the printed 

record.” Id. 

I. Plaintiffs’ Motion in Limine No. 18 

¶8 The first basis for granting a new trial was the superior 

court’s conclusion that Defendants violated a pretrial ruling on Plaintiffs’ 

“Motion In Limine No. 18 Re: Exclusion of All Testimony or Evidence that 

Plaintiffs Removed and/or Replaced the J-Tube from Decedent Connie 

Brumett” (“motion in limine no. 18”). 

¶9 Throughout the litigation, Defendants took the position that 

someone had substituted the J-tube Dr. Robert Schuster surgically inserted 

in July 2009 with a different tube. Defense expert James Macho, M.D.,

testified at deposition it was “very unlikely” Connie’s jejunum was 

perforated by “a standard jejunostomy tube,” but opined that “[i]f 
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someone puts in a sharp, stiff tube, there’s going to be a very high risk of a 

perforation.” According to Dr. Macho, an “improper tube” — i.e., a tube

different from the one Dr. Schuster inserted — caused the perforation. 

¶10 In motion in limine no. 18, Plaintiffs asked the court to

exclude all testimony or evidence that [Billy or Angela] 

accidentally, or on their own volition, removed the j-tube 

from Connie Brumett and/or replaced the j-tube inside of 

Connie Brumett at any time prior to the puncture in her 

jejunum, which also includes the exclusion of any testimony 

or evidence that [Billy or Angela] punctured Connie 

Brumett’s jejunum as a result of the removal and/or 

replacement of her j-tube.

In a supplemental filing, Plaintiffs made clear they were not asking the 

court to preclude evidence or argument that Billy had adjusted or reinserted 

Connie’s J-tube. They objected only to any evidence or argument that 

“somehow Billy Brumett had replaced his wife’s j-tube with a different 

feeding tube during his care of her on or about November 23, 2009.” 

¶11 Defendants opposed motion in limine no. 18, arguing: (1) Dr. 

Schuster believed the tube removed in November 2009 was not the same 

tube he had inserted four months previously; (2) Billy told an emergency 

room physician (Dr. Geoffrey McKinzie) that Connie’s J-tube had fallen 

out the day before her hospitalization and that he had “replaced” it;3 (3) 

there was no evidence Bosman had substituted the J-tube Dr. Schuster

inserted with “the sharp, stiff tube” later removed; and (4) a defense 

nursing expert opined that Billy inadvertently perforated Connie’s 

jejunum when he reinserted the J-tube on November 23, 2009. Based on 

this evidence, Defendants argued, “a jury could well find that Mr. Brumett 

removed the soft and pliable J-tube and inserted the hard, sharp tipped 

tube.” 

 

3 Dr. McKinzie’s emergency room note reads: “Per her husband, she 

had a J-tube that had fallen out yesterday that he had replaced by hand 

himself.” The superior court ruled that “a fair reading in context” of this 

note was that Billy “re-inserted the feeding tube because it had fallen out.” 

At trial, Plaintiffs introduced Dr. McKinzie’s medical records into 

evidence — including this note — and published them to the jury. 
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¶12 The superior court granted motion in limine no. 18, 

precluding evidence that Billy or Angela replaced the J-tube Dr. Schuster 

surgically inserted with a different tube. The court ruled, in pertinent 

part:

Defendants may not present evidence or argue that Plaintiffs 

removed or replaced the feeding tube but may argue and 

present evidence in support of their theory that Plaintiff Billy 

Brumett adjusted or re-inserted the feeding tube. 

¶13 As particularly relevant here, the court’s ruling did not 

preclude Defendants from arguing that someone else (other than Plaintiffs) 

had replaced Connie’s J-tube. Indeed, the court adopted the following 

statement of the case to be read to prospective jurors:

Plaintiffs claim that Defendant, Susan Bosman, perforated 

Connie Brumett’s small intestine while advancing a feeding 

tube on November 23, 2009 resulting in her death.

Defendants deny they were negligent or that their 

negligence caused Connie Brumett’s death and the damages 

claimed by Plaintiffs. Defendants assert that someone removed 

the soft, pliable tube surgically inserted on July 27, 2009 and 

replaced it with a hard, sharp-tipped tube that was removed during 

surgery on November 25, 2009. 

(Emphasis added). Thus, before trial, the superior court had ruled that 

although Defendants could not present evidence or argument that Billy or 

Angela removed or replaced Connie’s J-tube, Defendants could present 

evidence and argument that “someone” had removed the J-tube 

implanted in July 2009 and replaced it with the tube removed during the 

November 2009 surgery. 

¶14 Consistent with this ruling, the court overruled an objection

to defense counsel’s opening statement comment that “someone had 

replaced the ordinarily soft pliable feeding tube.” The court concluded 

this statement was not objectionable and was consistent with the 

statement of the case read to jurors. The record before this Court does not 
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Decision of the Court

6

reflect that Plaintiffs again objected or voiced concern during trial that 

Defendants were violating the ruling regarding motion in limine no. 18.4 

¶15 Although Plaintiffs did not object during Defendants’ 

closing argument, in their motion for new trial, they asserted defense 

counsel had violated the pretrial ruling by arguing “that Billy Brumett had 

replaced his wife’s feeding tube.” Plaintiffs did not cite any portion of the 

closing argument that ran afoul of the ruling. In response, Defendants 

“challenge[d] Plaintiffs to point to one area in the entire record wherein 

the defense argued that Billy Brumett (as opposed to generically 

‘someone’) swapped out his wife’s soft, pliable j-tube with a rigid, sharp 

tube.” In reply, Plaintiffs cited only the following excerpt from 

Defendants’ closing argument:

And whoever reinserted [the J-tube], if it was reinserted, or 

whoever changed it, if it was a different tube, had 

knowledge that that had been done, but not Nurse Bosman. 

She couldn’t have known. 

¶16 Plaintiffs’ failure to object during closing argument 

“constitutes a waiver unless the matter is so serious that no admonition 

could undo the damage.” Maxwell v. Aetna Life Ins. Co., 143 Ariz. 205, 214 

(1984). The appellate record discloses neither fundamental error nor 

misconduct by counsel on this point. See Liberatore v. Thompson, 157 Ariz. 

612, 620 (App. 1988) (“[T]hough a party risks forfeiting a potential ground 

for appeal by withholding prompt objection to an opponent’s misconduct, 

he does not forfeit the right to assert such misconduct as a basis for 

sustaining the trial court’s new trial order if the trial court finds the 

impropriety sufficient to warrant a new trial despite the absence of a 

prompt objection.”). 

¶17 Waiver aside, defense counsel’s closing argument was

consistent with the court’s ruling on motion in limine no. 18 — suggesting

that someone had replaced Connie’s J-tube, but not naming either of the 

 

4 Outside the jury’s presence, Defendants sought to have the court 

reconsider its ruling on motion in limine no. 18 based on evidence that, on 

a prior occasion, Billy had replaced Connie’s J-tube with a “much stiffer” 

Foley catheter. The court declined to reconsider its ruling, and the record 

does not disclose any evidence or argument in front of the jury regarding 

this prior incident. 
BRUMETT v. MGA HOME

Decision of the Court

7

Brumetts as that “someone.” Plaintiffs conceded as much during oral 

argument on their motion for new trial:

THE COURT: Well, defense counsel never actually in his 

closing argument said that Mr. Brumett had replaced [the 

J-tube].

[PLAINTIFFS’ COUNSEL]: That’s correct, [Y]our Honor, 

but Plaintiff[s]’ contention is not that direct express 

statement of that would alone would be in violation of the 

Court’s previous ruling on motion in limine number 18, but 

even implied or suggestive argument would be enough to 

raise the issue for a new trial. 

¶18 The superior court did not grant a new trial based on a 

conclusion it had erred by permitting Defendants to argue that someone 

had replaced Connie’s J-tube. See, e.g., Ariz. R. Civ. P. (“Rule”) 59(a)(6) 

(New trial may be granted for “[e]rror in the admission or rejection of 

evidence.”). The court instead ordered a new trial because “Defendants 

violated the Court’s ruling regarding Motion in Limine #18 and . . .

Plaintiffs were prejudiced by that violation.” But even viewing the record 

in the light most favorable to sustaining that determination, there was no 

such violation. The record does not support the grant of a new trial on 

that basis. See Grant v. Ariz. Pub. Serv. Co., 133 Ariz. 434, 456 (1982) (“[T]he 

appellate court may find an abuse of discretion if the record fails to 

provide substantial evidence to support the trial court’s finding.”). 

II. Defendants’ Motion in Limine No. 12

¶19 Defendants moved in limine (referred to here as “motion in 

limine no. 12”) to preclude Nurse Diana Greenberg (Plaintiffs’ standard of 

care expert), Dr. Keith Beck (Plaintiffs’ causation expert), and Connie’s 

treating physicians from “offering an opinion that the soft, pliable J-tube 

that Dr. Schuster surgically inserted into Connie Brumett on July 27, 2009, 

morphed into the hard, sharp tipped tube that Dr. Abdo removed during 

the November 25, 2009 surgery.” Defendants argued Nurse Greenberg

had conceded “she is not a J-tube expert . . . and she did not know what 

happens to the J-tube consistency over time when it is in a patient.” 

Defendants further asserted Plaintiffs had not disclosed any opinion by 

Nurse Greenberg that the J-tube Dr. Schuster inserted “morphed into the 

hard, sharp tipped tube” removed in November. Defendants similarly 

argued Dr. Beck “never offered an opinion that the J-tube that 

Dr. Schuster inserted . . . morphed into a hard, sharp tipped tube that 
BRUMETT v. MGA HOME

Decision of the Court

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Dr. Abdo removed.” Finally, Defendants contended none of Connie’s 

treating physicians had offered opinions about changes in J-tubes over 

time. 

¶20 In their response, Plaintiffs opposed Defendants’ motion

only as to Nurse Greenberg, relying on the following excerpt from her 

deposition:

Q. Does the structural integrity of a feeding tube change 

over time?

A. It can. A lot of tubes, whether it’s G-tube, J-tube, PICC 

lines, in my practice they are not supposed to over time, but 

there are occasions where it breaks off or it becomes 

brittle, and that’s why when I have my nurses remove a 

PICC line, they have to look at the entire tubing to see if 

there’s any breakage of the catheter or the tube. So that 

applies to Foleys. It applies to any kind of tubing.

Q. Do tubes, by virtue of the fact that they become brittle 

and otherwise crack and break over time, do they need to be 

replaced periodically?

A. They need to be replaced periodically. 

Based on this deposition testimony, Plaintiffs argued, “Greenberg has 

provided ample testimony of her experience with the transformation of 

j-tubes and Plaintiffs should be allowed to present evidence on this issue.” 

¶21 The superior court denied motion in limine no. 12, “subject 

to proper foundation being laid.” At trial, Plaintiffs attempted to question

Nurse Greenberg about changes in J-tubes over time. That brief exchange 

occurred as follows:

Q. Do you have any knowledge or experience with the 

integrity of J-tubes changing because of exposure to bodily 

fluid secretions and enteral feedings?

[DEFENSE COUNSEL]: Your Honor, lack of disclosure. 

May we approach?

(Bench conference held.)

THE COURT: Objection sustained. 
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The record on appeal does not include a transcript of the bench 

conference. In the absence of a transcript, this Court presumes the record 

supports the sustaining of Defendants’ objection on “lack of disclosure” 

grounds. See Johnson v. Elson, 192 Ariz. 486, 489, ¶ 11 (App. 1998).

¶22 In their motion for new trial, Plaintiffs argued that they also 

attempted to question Drs. Beck and Banerjee at trial about changes in 

J-tubes. The trial transcripts do not support this assertion. No such 

questions were posed to Dr. Banerjee.

5 Nor did Plaintiffs’ counsel 

question Dr. Beck about this topic. During cross-examination, Dr. Beck 

testified he does not insert or care for feeding tubes and does not know 

whether the ends of J-tubes are “stiff and sharp or soft and pliable.” 

Plaintiffs did not revisit this topic with Dr. Beck during his re-direct 

testimony.

¶23 The question thus becomes whether the record supports the 

superior court’s conclusion “it was in error not to permit testimony from 

Plaintiffs’ witnesses ‘regarding the hardening of the feeding tube’ that was 

the subject of Defendants’ Motion in Limine #12.” Because Plaintiffs 

attempted to question only Nurse Greenberg on this point, the only 

potential error would be in sustaining the non-disclosure objection to her 

testimony. 

¶24 At deposition, Nurse Greenberg testified that the structural 

integrity of a feeding tube can change over time, but she did not discuss 

what might cause such changes. The question posed at trial was whether 

the integrity of J-tubes changes “because of exposure to bodily fluid 

secretions and enteral feedings.” Nothing in Nurse Greenberg’s 

deposition testimony addressed causative factors, and Plaintiffs’ pretrial 

disclosure stated only that Greenberg would testify “in accordance with 

her deposition testimony.” See Rule 26.1(a)(6) (Party calling expert 

witness at trial must disclose, inter alia, “the substance of the facts and 

opinions to which the expert is expected to testify” and “a summary of the 

grounds for each opinion.”). 

 

5 The court and counsel did, however, discuss whether a nurse 

practitioner’s note included in Dr. Banerjee’s medical records, reflecting 

that a previous J-tube had “crystallized,” should be redacted. Defense 

counsel avowed, without contradiction, that Dr. Banerjee testified at her 

deposition that she did not know what the “crystallized” reference meant. 

There is no indication in the record that Plaintiffs disclosed any opinions

Dr. Banerjee intended to offer regarding changes in J-tubes over time. 
BRUMETT v. MGA HOME

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¶25 Furthermore, unlike its ruling on motion in limine no. 18, the 

superior court did not find that sustaining the objection to Nurse 

Greenberg’s testimony prejudiced Plaintiffs. See Rule 59(a) (court may 

grant a new trial for identified reasons that materially affect the movant’s 

rights); Simpson v. Heiderich, 4 Ariz. App. 232, 234 (1966) (“[A]ny prejudice 

to a litigant must be ‘affirmatively probable’ to constitute grounds to set 

aside the verdict or grant a new trial.”). If Nurse Greenberg’s expert 

opinions were not properly disclosed, there could be no prejudice in 

precluding her testimony. Additionally, as Defendants note, Dr. Schuster 

testified at trial that since his deposition, where he stated he had never 

seen a hardened J-tube, he had in fact seen a tube that had hardened. See 

Ott v. Samaritan Health Serv., 127 Ariz. 485, 489 (App. 1980) (excluded 

evidence that “essentially repeats, and in some instances elaborates on,” 

presented testimony is cumulative and thus not prejudicial). 

¶26 For the foregoing reasons, the record does not support the 

grant of a new trial based on Plaintiffs’ inability to present testimony 

“regarding the hardening of the feeding tube.”

III. Other Grounds Asserted in Plaintiffs’ Motion for New Trial

¶27 The new trial order was based solely on the two grounds 

discussed supra. See Rule 59(m) (“No order granting a new trial shall be 

made and entered unless the order specifies with particularity the ground 

or grounds on which the new trial is granted.”). Plaintiffs nevertheless 

ask this Court to affirm that order on four grounds rejected by the 

superior court: (1) violation of a ruling on a motion in limine relating to 

statements by Connie and the “erroneous” reversal of that ruling during 

trial; (2) error in excluding Bosman’s deposition and nursing board 

records; (3) Plaintiffs’ inability to offer evidence that earlier treatment 

could have prevented Connie’s death; and (4) Defendants’ use of medical 

records during their closing argument. 

¶28 We address each argument in turn, concluding that none of 

the stated grounds required the grant of a new trial.

A. Statements by Connie

¶29 Plaintiffs filed a motion in limine asking the court to 

“exclude any testimony about statements attributed to Connie Brumett 

that are contained in nursing records prior to November 23, 2009.” 

Specifically, Plaintiffs objected to record entries reflecting that Connie said 

“[h]elp me,” or words to that effect, on approximately 40 prior occasions. 

Plaintiffs argued these statements were irrelevant. Defendants opposed 
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the motion, contending it would be “extremely prejudicial to the defense 

for the jurors to learn that Mrs. Brumett yelled ‘help me’ on November 

23–24, 2009, without knowing she did this frequently in the six months 

prior to the jejunum perforation.” The superior court granted Plaintiffs’ 

motion “subject to further argument at trial.” 

¶30 The court and counsel revisited this issue during trial,

outside the jury’s presence, after Billy testified that he read “the entire 

record” after Bosman left her shift on November 24, 2009 and did not 

recall it saying “anything about [Connie] making statements like, ‘Stop, 

you’re hurting me,’ or any kind of crying out in pain.” Defense counsel 

argued Plaintiffs had “opened the door” to the “help me” references 

included in the nursing records. The court agreed, ruling it would “allow 

questions to be asked and evidence to be received with regard to 

Ms. Brumett’s cries for help.” 

¶31 The court did not abuse its discretion. “[W]here one party 

injects improper or irrelevant evidence or argument, the ‘door is open,’ 

and the other party may have a right to retaliate by responding with 

comments or evidence on the same subject.” Pool v. Superior Court, 139 

Ariz. 98, 103 (1984). The court could reasonably conclude that Billy’s 

comment about reviewing “the entire record” opened the door to the 

previously precluded evidence about Connie’s earlier calls for help. 

Plaintiffs also contend defense counsel improperly mentioned Connie’s 

“[h]elp me” statements during his opening statement, before the door had 

been opened. They did not, however, object to those comments and have 

therefore waived the issue for purposes of appeal. 

B. Bosman’s Deposition and Nursing Records

¶32 After Connie’s death, Plaintiffs filed a complaint against 

Bosman with the Arizona Nursing Board. Bosman was diagnosed with 

dementia in 2011 and entered into a consent decree in August 2011 

whereby she voluntarily surrendered her nursing license. The Pinal 

County Superior Court determined Bosman was incapacitated and 

appointed the public fiduciary as her guardian and conservator for 

purposes of “manag[ing] the defense of Brumett vs. MGA Home Health 

Care, et al.” When Plaintiffs deposed Bosman, she did not recall Connie 

Brumett or working as a nurse. 

¶33 Plaintiffs contend the court erred by precluding their use of 

Bosman’s deposition and nursing board records at trial. We conclude 

otherwise. 
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¶34 Plaintiffs did not allege Bosman was mentally compromised

when she cared for Connie. In fact, when Defendants moved in limine to 

preclude any suggestion Bosman was impaired while caring for Connie, 

Plaintiffs responded that they had no objection to the motion. Under 

these circumstances, the superior court could properly conclude the 

subsequent dementia diagnosis and license surrender were irrelevant to 

the issues before the jury.

6 See, e.g., Mulhern v. City of Scottsdale, 165 Ariz. 

395, 398–99 (App. 1990) (no error in precluding evidence of defendant’s 

chemical dependency because no evidence suggested he was under the 

influence at the time of the incident); Ornelas v. Fry, 151 Ariz. 324, 330 

(App. 1986) (Affirming trial court’s “evidentiary ruling requiring a specific 

and particularized factual predicate of alcohol-related impairment” at the 

time the defendant doctor performed surgery.). 

¶35 In terms of the deposition, Defendants filed a motion in 

limine asking the court to preclude its use at trial because Bosman’s 

dementia “rendered it impossible for her to give intelligent answers to the 

questions.” According to Defendants, it would “waste the Court’s time 

and the jury’s time to see this unfortunate woman struggle to answer 

questions regarding events she could no longer remember.” Defendants

further contended they would be “extremely prejudiced” if jurors viewed 

the videotaped deposition — especially because there was no indication 

Bosman was suffering from mental impairment while caring for Connie. 

In opposing Defendants’ motion, Plaintiffs expressed skepticism about 

Bosman’s professed lack of memory at her deposition, especially when 

compared to her behavior during the preceding months. The court 

granted Defendants’ motion. 

¶36 Based on the record and arguments before it, the superior 

court did not abuse its discretion by precluding the use of nursing board 

 

6 The consent decree includes one finding of fact:

In about June 2011, Respondent was diagnosed with 

dementia. Because of her psychiatric condition, Respondent 

is unable to work as a nurse. 

The conclusions of law state that this finding constitutes “unprofessional 

conduct pursuant to A.R.S. § 32-1601(16)(e) (being mentally incompetent 

or physically unsafe to a degree that is or might be harmful or dangerous 

to the health of a patient or the public).” 
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records and Bosman’s deposition at trial. Because that evidentiary ruling 

was not erroneous, and nothing at trial altered the factual or legal 

significance of these matters, the court also did not abuse its discretion by 

denying a new trial on this basis. 

C. Earlier Treatment

¶37 Defendants filed a motion in limine to preclude “any 

argument, evidence or testimony that earlier treatment would have 

altered Mrs. Brumett’s outcome.” The motion noted that Plaintiffs’ 

causation expert, Dr. Beck, testified at deposition that he had not 

formulated an opinion on that issue and that Plaintiffs had disclosed no 

other expert opinion regarding the efficacy of earlier treatment. In 

response, Plaintiffs did not dispute Defendants’ assertions, but argued 

that Dr. Beck testified “he could and would offer his qualified opinions 

when asked” and that Defendants “opened the door” to testimony about 

whether earlier treatment would have altered the outcome. The superior 

court granted Defendants’ motion. 

¶38 Plaintiffs have demonstrated no abuse of discretion. They 

did not disclose any expert opinion that earlier treatment would have led 

to a different outcome. See Rule 26.1(a)(6) (expert witness disclosure 

requirements). And once again, nothing transpired during trial that 

changed the factual or legal analysis of this issue. The superior court did 

not err by precluding the challenged evidence or by denying a new trial 

on that basis.

D. Medical Records Used During Closing Argument

¶39 Plaintiffs contend Defendants improperly referred to 

medical records of Dr. Abdo and Dr. Khanna during closing arguments. 

Plaintiffs, however, did not interpose a timely objection. The record 

suggests (and Plaintiffs do not claim otherwise) that Plaintiffs voiced an 

objection only after the jury had been excused to deliberate. Plaintiffs 

waived the asserted error by failing to timely object. See Ariz. R. Evid. 

103(a); S. Ariz. Freight Lines v. Jackson, 48 Ariz. 509, 518 (1936) (“Parties 

may not sit by and allow error which is not fundamental to be committed,

without protesting and asking the trial court to correct the error at the 

time, and then later, when the judgment goes against them, ask for a new 

trial on that ground.”).
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CONCLUSION

¶40 For the foregoing reasons, we vacate the superior court’s 

order granting a new trial and remand with instructions to enter judgment 

on the jury’s verdict in favor of Defendants.