1 IN THE SUPREME COURT OF THE STATE OF IDAHO Docket No. 36980 JOSE L. AGUILAR, JR., individually, as the personal representative of the Estate of Jose F. Aguilar, deceased and the Estate of Maria A. Aguilar, deceased, JOSE L. AGUILAR, JR. and JENNIFER AG UILAR, as the legal guardian of LORENA AGUILAR, a minor; and GUADALUPE MARIA AGUILAR and ALEJANDRO AGUILAR, heirs of Maria A. Aguilar, deceased.

Plaintiffs

- Respondents,

v. NATHAN COONROD, M.D., and PRIMARY HEALTH CARE CENTER, an Idaho corporatio n,

Defendants

- Appellants,

a nd
ANDREW CHAI, M.D, STEVEN R. NEWMAN, M.D., MITCHELL LONG, D.O., a nd JOHN AND JANE DOES I through X, employees of one or more of the defendants,

Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Boise, May 2011 Te rm 2011 Opinion No. 99

Filed: September 14, 2011
Stephen W. Kenyon, Clerk

Appeal from the District Court of the Third Judicial District, State of Idaho, Canyon County. Hon. Gregory M. Culet, District Judge.
District court decision denying motion for new trial, affirmed.
Powers, Tolman, PLLC, Boise, for appellants. Steven J. Hippler and David C. Frederick argued.
Comstock & Bush, Boise, for respondents. John A. Bush argued.

__________________________________2 BURDICK, Chief Justice

This case c omes before this Court on appeal from a jury verdict entered in a wrongful death case in favor of Jose Aguilar, Guadalupe Aguilar, Alejandro Aguilar, Lorena Aguilar and Jose Aguilar, Jr. (collectively, “ the Aguilars ”) against Dr. Nathan
Coonrod , his employ er Primary Heal th Care Center (Primary Health) and employees of Primary Health ( collectively, hereinafter “Dr. Coonrod”). On appeal Dr . Coonrod asserts
that the district court abused its discretion in barring him from questioning the Aguilars ’ expert, Dr. Blaylock, about his opinion as to the professional negligence of Dr. Chai and Dr. Long (two previous defendants who settled or were dismissed prior to trial) in their
treatment of Maria Aguilar (Maria), either on cross

- examination or during his case in
ch ief

. Dr. Coonrod alleges that the district court also abused its discretion in forbidding
him to read portions of Dr. Blaylock’s deposition into the record. Finally, Dr. Coonrod alleges that the district court erred in interpreting the statutory cap on n on

- economic damages, I.C. § 6

- 1603, as applying to each of the Aguilars individually instead of collectively. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
O n April 23, 2003, Maria saw Dr. Atup

- Leavitt at Primary Health due to
shortness of breath, naus ea and dizziness, and was diagnosed with anemia. On April 26, 2003, Maria was seen by Dr . Blahd at the West Valley Medical Center emergency r oom, and was again discharged with a diagnosis of anemia. Dr. Coonrod first examined Maria on April 28, 20 03, at Primary Health , where she reported shortness of breath and a rapid pulse. Between Ap ril 28 and Maria’s death on June 4, 2003, Maria saw Dr. Coonrod an additional six times, the last time was on the morning of the day she died. During this time, Maria was also seen by: Dr. Gibson (a gastroenterologist) twice; Dr. Long (a doctor at Mercy Medical Center’s emergency room); Dr. Chai (a cardiologist at Mercy Medical Center); Dr. Thomas (a doctor at Mercy Medical Center’s emergency room); Dr. Field (a cardiologi st at Mercy Medical Center); and Dr. Newman (a doctor in West Valley Medical Center’s emergency room). Maria was determined to have died of a pulmonary embolus; a clot had formed at the arch of her pulmonary artery
, blocking the flow of blood from the rig ht chamber of her heart into her lungs.3 On June 2, 2005, the Aguilars filed suit against Drs. Chai, Newman, Long, Coonrod and Atup

- Leavitt, along with their employers, alleging that the defendants
breached the relevant standard s of medical care in failing to diagnose Maria’s condition
and that this negligence resulted in her death. On December 1 8, 2006, the Aguilars filed
an amended c omplaint. Dr. Atup

- Leavitt, Mercy Medical Center and West Valley
Medical Center were dismissed relatively early in the lit igation process. Dr

. Chai was dismissed from the case on June 2, 2009. Dr. Long settled with the Aguilars , and was dismissed from the case on June 15, 2009

. When trial began the only remaining defendants were Dr. Newman, Dr. Coonrod and Primary Health. On December 29, 2006, Dr. Coonrod filed an answer to the Aguilars’ amended complaint raising, inter alia , the affirmative defense of comparative negligence. On January 15, 2008, the Aguilars made their first expert witness disclosure, disclosing
, amongst others, Dr. Blaylock, and noting that he was expected to testify that Dr. Long,
Dr. Chai , Dr. Coonrod and Dr. Newman violated the standard of care for their respect ive practice areas and that these violations were a substantial factor in Maria’s death.
Th rough numerous supplementations of their expert witness disclo sures, the Aguilars consistently indicated that Dr. Blaylock was expected to testify that these four doctors were negligent

. On February 27, 2009, the Aguilars made a motion in limine seeking, i nter alia , to preclude Dr. Coonrod from making any reference to any defendant who settled or was dismissed from the case prior to trial. The district court heard argument on that motion on April 22, 2009, and Dr. Coonrod argued that he should be permitted to question Dr. Blaylock regarding his previously disclosed opinion s as to the negligence of any doctor
who was dismis sed or settled prior to trial. At that time the district court specifically considered whether Dr. Coonrod could question Dr. Blaylock t o establish negligence on
the part of Dr. Long. The court declined to make a ruling at that time, inviting further submission of authority by both parties

. During trial the court again heard argument on this issue, outside the presence of the jury, and r uled that Dr. Coonrod could not call Dr. Blaylock in his case in chief, on the basis that Dr. Coonrod had not adequately disclosed Dr. Blaylock as an expert he intended to call at trial. However, the court declined to
make a final determination as to whet her Dr. Coonrod could question Dr. Blaylock on4 cross

- examination as to his opinion of the standard of care provided by Dr. Long and Dr.
Chai . The court deferred that ruling, finding that it would necessarily depend on what was within the scope of direct e xamination and what seemed like approp riate impeachment questioning.
The district court allowed Dr. C oonrod to question Dr. Blaylock outside the presence of the jury, on April 29, 2009, to make an offer of proof in the record as to what
he would have asked Dr. Blaylock before the jury had he been given the opportunity

. This offer of proof was supplemented with additional questioning outside the presence of the jury on the morning of April 30, 2009. The jury returned a verdict against Dr. Coonrod on May 13, 2009, and a judgment was entered on May 20, 2009. On May 28, 2009, Dr. Coonrod filed a motion for a new
trial on the basis that it was an abuse of discretion and/or error in law to b ar him from asking Dr. Blaylock his opinion as to the negligence of Dr. Long and Dr. Chai

. Dr. Coonrod also argued that it was an abuse of discretion and/or error in law to list each plaintiff individually , rather than collectively, on the jury form for noneconomic damages

. The jury found that Dr. Newman had no t breached the standard of care
, and he settled with the Aguilars following the conclusion of trial and was dismissed on June 25,
2009. The district court heard oral argument on Dr. Coonrod’s May 28 motion on July 1, 2009, and denied that motion in a memorandum decisio n entered on August 25, 2009. An amended judgment was entered on September 19, 2009, and Dr. Coonrod filed his notice of appeal with this C ourt on Se ptember 29, 2009.
I I. ANALYSIS A. The district court did not abuse its discretion in refusing to allow Dr . Coonrod to
cross - examine Dr. Blaylock, or present evidence in its case in chief, about Dr. Blaylock’s deposition testimony that Dr. Long and Dr. Chai had acted negligently in their treatment of Maria, breaching the standard of care , and that negligent tr eatment was a substantial factor in Maria’s death

. Dr. Coonrod argues that the district court erred in finding that Dr. Coonrod could

not cross

- examine Dr. Blaylock ( the Aguilars ’ expert witness) about his opinion offered during his deposition that two oth er doctors, Long and Chai, also breached the standard
of ca re in failing to diagnose Maria, and that five other doctors who had seen Maria during the relevant period had not breached the standard of care. The court likewise forbade Dr. Coonrod from questi oning Dr. Blaylock about his deposition testimony5 during Dr. Coonrod’s case in chief. Dr. Coonrod contends that the district court erroneously found that White v. Mock , 140 Idaho 882, 104 P.3d 356 (2004), compelled it to deny this line of quest ioning on t he basis that Dr. Coonrod’s expert disclosures were too general.
1. Standard of Review
As this Court stated in White v. Mock : The Court reviews a trial court's decision admitting or excluding evidence , including the testimony of expert witnesses, under the abuse of discretion standard. The test for determining whether the district court abused its discretion is: (1) whether the court correctly perceived that the issue was one of discretion; (2) whether the court acted within the outer boundaries of its discretion and consistently with the legal standards applicable to the specific choices available to it; and (3) whether it reached its decision by an exercise of reason.
140 Idaho at 888, 104 P.3d at 362 (internal citations omitted). Typically, where th e disclosure requirements of I.R.C.P. 26 are not met, an improperly disclosed expert will be excluded from testifying

. Id

. The decision to grant or deny a motion for a new trial is likewise reviewed by this Court under an abuse of discretion standard. K uhn v. Coldwell Banker Landmark, Inc ., 150 Idaho 240, __, 245 P.3d 992, 999 (2010). Where an incorrect ruling was made regarding evidence, a new trial is only merited if the error affects a party’s substantial right. Clark v. Klein , 137 Idaho 154, 156, 4 5 P.3d 810, 812 (2002).
2

. The district court did not abuse its discretion in barring Dr. Coonrod from calling Dr. Blaylock during his case in chief.
i. The district court did not abuse its discretion in barring Dr. Coonrod from calling Dr. Blaylock duri ng his case in chief, based on his finding that Dr. Coonrod had provided inadequate notice of his intent to call Dr. Blaylock, pursuant to I.R.C.P. 26(b)(4)(A) (i)

. Here , the first and third parts of the abuse of discretion test were clearly met by
the dist rict court; it recognized that the decision whether or not to allow evidence to be

pre sented to the jury was one of discretion, and it exercised considerable reason in reaching that decision. Our only remaining inquiry is whether the court acted consisten t with the applicable legal standards. The court noted that it was barring Dr. Coonrod from calling Dr. Blaylock during his case in chief because Dr. Coonrod had not properly6 disclosed Dr. Blaylock as an expert witness he expected to call at trial under I .R.C.P. 26(b)(4)(A). Idaho Rule of Civil Procedure 26(b)(4) provides, inter alia : Discovery of facts known and opinions held by experts, expected to testify, otherwise discoverable under the provisions of subdivision (b)(1) of this rule and acquired or d eveloped in anticipation of litigation or for trial, may be obtained by interrogatory and/or deposition, including: (A) (i) A complete statement of all opinions to be expressed and the basis and reasons therefore; the data or other information considered b y the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; any qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition w ithin the preceding four years. It is clear that Dr. Coonrod’s disclosures did not comply with the requi rements of
I.R.C. P. 26(b)(4)(A)(i). The Aguilars sent Dr. Coonrod several interrogatories pertaining to both his affirmative defense and his retained experts, requesting information regarding which other doctors Dr. Coonrod alleged ha d breached the standard of care and the experts tha t would testify as such. Although Dr. Coonrod disclosed numerous experts, he never identified an expert he intended to call to establish his affirmative defense th at other medical providers had violated the standard of care. The most that Dr. Coonrod did w as claim a general reservation of rights to call the experts disclosed by the Aguilars, which this Court specifically found to be insufficient to comply with the requirements of I.R.C.P. 26(b)(4). Whit e , 140 Idaho at 889, 104 P.3d at 363

. See also Gallo v. Peninsula Hospital
, 211 Cal. Rptr. 27
, 30

– 31 (Cal. Ct. App. 1985).
These are the disclosures Dr. Coonrod offered, as they pertain to Dr. Blaylock : (1) on April 22, 2008, in his expert witness disclosure, “RESERVATIONS Defendants

reser ve the right to call any and all expert witnesses disclosed by Plaintiffs . . . .”; (2) in a supplemental disclosure filed October 17, 2008, “Any and all individuals identified as an

e xpert witness by plaintiff in their present and future discovery answers or formal disclosure documents. Any and all individuals called to testify as an expe rt witness by plaintiffs.” Clearly these disclosures do not offer sufficient detail to comply with the requirements of the Idaho Rules of Civil Procedure.7 Dr. Coonrod di d offer some additional disclosures regarding Dr. Blaylock, in response to interrogatories, though these responses were not received until after: (1) the discovery deadline had passed, and (2) the Aguilars filed a motion in limine seeking to preclude Dr. C oonrod from offering the affirmative defense of comparative fault due to his failure to disclose any experts who would be testifying to such. The disclosures were
as follows: (1) In a supplemental answer to interrogatory no. 3 of the Aguilars, which
asks for disclosure of those expected to testify along with the general nature of the facts to which they will testify, on March 9, 2009, 1 Dr. Coonrod included “ Paul Blaylock, MD: It is anticipated that Dr. Blaylock will testify consistent with his opi nions pr eviously disclosed.”; (2 ) In supplemental response to an interrogatory asking for disclosure of experts and the subject matter, facts and opinions as to which they will testify, Dr. Coonrod responded, in relevant part: “[P]lease see Plaintiffs’ Expert Witn ess Disclosures (original disclosure and all supplements thereto) and Plaintiffs’ Rebuttal Expert Witness Disclosures, which are incorporated by reference as if fully set forth herein. To the extent any other defendant in this action is dismissed prior to trial, this defendant reserves the right to call or cross

- examine plaintiffs’ expert witnesses at trial.”; and (3 ) In response to an interrogatory concerning Dr. Coonrod’s affirmative defense of comparative fault, he again identifies the Aguilars’ expert witness disclosures and states that they are incorporated by reference, and specifically directs the Aguilars to the deposition testimony of Dr. Blaylock, and this same information is provided in response to several more interrogatories.
The final refere nce made to Dr. Blaylock by Dr. Coonrod was filed o n April 27, 2009, in his supplemental trial brief: “It is the defendants’ intent to utilize plaintiffs’ expert witnesses to show that non

- parties were negligent in the above

- entitled case. Specifically, defendants propose to call plaintiffs’ expert witness, Dr. Paul Blaylock, M.D., to establish the negligence of the non

- parties in this case.” Even if all of the above had been timely filed, and properly included as expert disclosures, it would have been
i nsufficient to meet the standard articulated in I.R.C.P. 26(b)(4). Therefore, we hold that
the district court’s decision was consistent with the applicable legal standards and did not

1 It is noted by the parties that this document was pr ovided to the Aguilars on March 3, 2009, though it wasn’t officially filed until March 9. The stipulated discovery deadline was March 1, 2009.8 constitute an abuse of discretion. Dr. Coonrod was properly barred fro m calling Dr. Blaylock in his case in chief.
Where a medical

- care

- provider defendant wishes to plead an affirmative defense of comparative negligence, it is incumbent upon them to obtain an expert to testify as to the negligence of other medical

- care provi ders. Best policy would be for such a defendant to retain their own expert, but in the event they wish to attempt to meet their burden of proof by calling the expert of their opponent, they must fully comply with the requirements of the Idaho Rules of Evi dence. A defendant must be just as specific in
their disclosures of an opponent’s retained expert, whom the defendant intends to call, as they would be if disclosing their own independently retained expert. Without such disclosures, and adequate interrog atory responses, it is difficult for a plaintiff to properly prepare its strategy for countering a comparative negligence affirmative defense. Here, Dr. Coonrod had the burden of proof to offer expert testimony that another
medical

- care provider was negl igent, in order to establish his affirmative defense of comparative negligence. He chose not to engage an expert to testify on that issue, and failed to provide responses to interrogatories that timely notified the Aguilars which
medical

- care providers Dr . Coonrod was alleging had violated the standard of care. A substantial policy consideration underlying the expert witness disclosure requirements of the rules of evidence is to provide each party with fair notice and an opportunity to prepare for trial. Dr. Coonrod’s general reservation of the right to call “any expert” or his blanket and generic notice that he might call each expert (individually named) “consistent
with his opinions previously disclosed” did not fairly provide the Aguilars with an

oppor tunity to prepare their case. Dr. Coonrod made the tactical decision not to retain an expert on the issue of comparative negligence, and he must deal with the consequences of
that decision. ii. Whether the district court abused its discretion in failing to allow Dr. Coonrod to call Dr. Blaylock during his case in chief on other grounds

. Aside from his failure to properly disclose Dr. Blaylock as an expert he expected to call at trial under the Idaho Rules of Civil Procedure, Dr. Coonrod argued that he st ill should have been permitted to read Dr. Blaylock’s dep osition into the record himself under I.R.C.P. 32(a)(3)(B) . Idaho Rule of Civil Procedure 32(a) is titled “Use of depositions” and provides, in relevant part:9 At trial or upon the hearing of a motio n for an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying , may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions: . . . (3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: . . . (B) that the wit ness is at a greater distance than 100 miles from the place of trial or hearing, or is out of the state of Idaho, unless it appears that the absence of the witness was pro cured by the party offering the deposition . . . . (Emphasis added). Dr. Coonrod arg ues that because Dr. Blaylock resides outside of Idaho and was more than 100 miles away from the locus of the trial, following Dr Blaylock’s testimony at that trial, Dr. Coonrod should have been permitted to read Dr. Blaylock ’s deposition into the record. Idaho Rule of Civil Procedure 32 makes the following condition for the use of any deposition testimony: “so far as admissible under the rules of evidence applied as though the witness were then present and testifying”

. Here Dr. Blaylock was pre sent, and did testify, and the c ourt found that Dr. Coonrod could not properly call him to ask about his deposition testimony . Thus, having already
determined that the rules of civil procedure precluded Dr. Coonrod from calling Dr. Blaylock to ask him about his opi nion as to the negligen ce of Dr. Chai and Dr. Long
, those rules would also preclude reading the deposition into the record for the same

purpose. It is evident from the structure of the rule that it is anticipated that a deposition of a potential witness w ill be read into the record only where that potential witness does not actually testify.
Dr. Coonrod also argues that Dr. Blaylock’s testimony should have been permitted as it was necessary to allocate fault fairly and avoid a duplicate recovery. Dr.
Co onrod points out that without expert testimony opining that another party was negligent, he could not have anyone else placed on the special verdict form for

co mparative negligence purposes, s ee I.C. §§ 6

- 1012, 6

- 1013, and that there is a general policy t o have all potentially responsible parties included on the special verdict form. See
Pocatello Indus. Park Co. v. Steel West, Inc ., 101 Idaho 783, 621 P.2d 399 (1980). This argument lacks merit. It was Dr. Coonrod’s burden to proffer expert testimony th at other healthcare providers were negligent, if he wished for those providers to be included on the special verdict form.10 3. The district court did not abuse its discretion in barring Dr. Coonrod from questioning Dr. Blaylock at cross

- examination as to his opinion that Dr. Long and Dr. Chai had breached the standard of care. Dr. Coonrod argues that he should have been permitted to question Dr. Blaylock

at cross

- examination regarding Dr. Blaylock’s previously expressed belief that Dr. Chai and Dr. Long had breached the standard of care, on the basis that such cross

- examination would not have exceeded the scope of direct examination , and that it w as relevant information for impeachment. Dr. Coonrod asserts that the district court abused its
discretion in barring him from cross

- examini ng Dr. Blaylock on these issues. We disagree.
The district court declined to rule as to whether Dr. Coonrod could cross

- examine Dr. Blaylock on this subject matter during the pretrial hearing. During trial, on the morning of April 29, 2009, immediately prior to Dr. Blaylock’s testimony, the distr ict court again considered the issue, and again deferred making a final ruling as to what would be permitted on cross

- examination, noting that it would necessarily depend upon
what was brought up during direct examination and what seemed like appropriate impeachment questioning. At the end of cross

- examination, Dr. Coonrod’s counsel made an offer of proof into the record, o utside the presence of the jury, to show what he would
have asked Dr. Blaylock if he had been given the opportunity to do so. Idaho Rule of Evidence 611(b) governs the scope of cross

- examination, and provides that “[c]ross

- examination should be limited to the subject matter of the direct
examination and matters af fecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.” In the offer of proof Dr. Blaylock testified that he had previously opined that Dr.
Chai and Dr. Lo ng had each breached the standard of care. Dr. Blaylock had not been questioned as to his opinion of the conduct of Dr. Chai or Dr. Long on direct examination; it was clearly beyond the scope of direct . Dr. Coonrod argues that the issue was proper impeac hment question ing because it “would have directly contradicted Dr. Blaylock’s trial testimony and was thus proper impeachment.” Nowhere in Dr. Blaylock’s testimony offered at trial did he offer the opinion that Dr. Chai or Dr. Long
had not breached the st andard of care, nor did he ever state that Dr. Coonrod a nd Dr. Newman’s negligence alone w as the cause of Maria’s death. This line of proposed11 questioning did nothing to impeach Dr. Blaylock as it was not inconsistent with anything
he offered in his direc t testimony. Likewise, Dr. Coonrod argues that if he had been permitted to ask Dr. Blaylock about his opinion as to the negligence of Dr. Long, Dr. Newman and the five other doctors who had seen Maria during the relevant time period
, it would have shown bias.
Dr. Coonrod’s argues that by demonstrating that Dr. Blaylock had only found those
doctors who were named in the lawsuit had acted negligently, and that other doctors who saw Maria during the relevant period had not, he could have shown that Dr. Bla ylock was biased in his opinion. This argument i s without merit. A showing that Dr. Blaylock had
found that the non

- party doctors were not n egligent does not indicate bias; rather
, it
shows that the Aguilars’ expert did not believe these medical provider s had breached the standard of care, and thus the Aguilars did not include them in the lawsuit. It is clear that the real purpose for which Dr. Coonrod wanted to cross

- examine Dr. Blaylock was to get him to offer his opinion that Dr. Chai and Dr. Long had acted negligently, so that they might be included on the special verdict form. We therefore find that the district court did not abuse its discretion in barring Dr. Coonrod from questioning Dr. Blaylock on

cross

- examination regarding his opinion as to th e negligence of Dr. Chai and Dr. Long
, or the five non

- party doctors

. B. The noneconomic damages cap in Idaho Code § 6

- 1603 limits the noneconomic damages award available in a wrongful death case as it applies to each heir individually. Dr. Coonrod next a rgues that the district court erred in applying the I.C. § 6

- 160 3 cap on noneconomic damages to each individual plaintiff rather than to the Aguilars as a collective group.
1. Standard of Review Interpretation of statute is purely a question of law over w hich this Court
exercises free review

. State, ex rel. Wasden v. Maybee , 148 Idaho 520, 528, 224 P.3d
1 109, 1117 (2010). Statutory interpretation begins with the literal words of the statute, giving those words their ordinary meaning, and construing the s tatute as a whole. Id

. Where the litera l words of a statute provide clear guidance the statute is deemed unambiguous and shall be interpreted according to its plain meaning. Id . Where a statute is capable of more than one reasonable construction
, this Court will look beyond the12 literal words of the statute and consider the reasonableness of each proposed construction, the public policy underlying the statute and its legislative history. Id

. 2. Idaho Code § 6

- 1603 imposes a noneconomic damage s cap on an individual basis

. At the time relevant to this action, I.C. § 6

- 1603 read, inter alia , as follows:
LIMITATION S ON NONECONOMIC DAMAGES. (1) In no action seeking damages for person al injury, including death, shall a judgment for noneconomic damages be e ntered for a claimant exceeding the maximum amount of four hund red thousand dollars ($400,000); provided, however, that beginning on July 1, 1988, and each July 1 thereafter, the cap on noneconomic damages established in this section shall increase or decr ease in accordance with the percentage amount of increase or decrease by which the Idaho industrial commission adjusts the average annual wage as computed pursuant to 72

- 409(2), Idaho Code. (2) The limitation contained in this section applies to the sum of : (a) noneconomic damages sustained by a claimant who incurred personal injury or who is asserting a wrongful death; (b) noneconomic damages sustained by a claimant, regardless of the number of persons responsible for the damages or the number of actions f iled. Act of 1987, ch. 278, S.L. p p . 575

– 76. The parties both agree that the applicable maximum amount of damages available, per claimant, under the relevant version of I.C. §
6

- 1603 is $682,200.65. Idaho Code § 6

- 1601 defines “claimant” as “any party to a civil action making a claim for relief, legal or equitable, compensatory or noncompensatory.”
The literal words of I.C. § 6

- 1603 provide clear gu idance as to its meaning , as such we decline to consider any argument pertaining to legi slative intent or pu blic policy. Although Dr. Coonrod argues that the history of wrongful death actions suggests that this Court should interpret “claimant” differently in a wrongful death case than it would in a personal injury case, nothing in the language of I.C. § 6

- 1603 itself suggests this
distinction. If the legislature had intended for this Court to interpret a term differently depending on the type of action brought, it would have written the statute accordingly

. From a plain reading of I.C. § 6

- 1603, the noneconom ic damag es cap applies to each individual bringing a cause of action, not on a per

- claim basis. C. Attorney fees.
Dr. Coonrod seeks attorney fees on appeal, citing I.A .R. 40 and 41 a nd I.C. § 12

- 121, but offers no argument supporting his request . “[I]n order to be entitled to attorney fees on appeal, authority and argument must be presented in the first brief filed by a party13 with this Court. A citation to statutes and rules authorizing fees, without more, is
insufficient.” Carroll v. MBNA Am. Bank
, 14 8 Idaho 261, 270, 220 P.3d 1080, 1089 (2009) (emphasis added) (internal citation omitted). As Dr. Coonrod merely cites to
statutes and makes no argument concerning attorney fees, he is not entitled to attorney
fees. In addition Dr. Coonrod is not the pre vailing party.
III . CONCLUSION We affirm the district court’s denial of Dr. Coonrod’s motion for a new trial, finding that the district court did not abuse its discret ion in barring Dr. Coonrod from questioning Dr. Blayock on the issue of the purported ne gligence of Dr. Chai and Dr. Long . Dr. Coonrod failed to properly disclose Dr. Blaylock as an expert he intended to
call
, and he was thus barred from callin g him during his case in chief. The areas that Dr. Coonrod was barred from questioning Dr. Blayloc k about on cross

- examination went beyond the scope of Dr. Blaylock’s direct testimony and were not proper impeachment. We hold that the district court correctly found that I.C. § 6

- 1603’s limitation on noneconomic damages applies on a per claimant basis, rather than a per claim basis. Costs to the Aguilars. Justices EISMANN, J. JONES and HORTON, CONCUR. Justice W. JONES, concurring in part and dissenting in part.
I concur in part and respectfully dissent in part from the Opinion of the Majority.

A lthough I concur with the Majority’s holding that the district court did not abuse its discretion in preventing Dr. Blaylock from being called in Dr. Coonrod’s case

- in

chief, I must dissent from its conclusion that the district court did not abuse its disc retion when it prevented Dr. Coonrod from questioning Dr. Blaylock on cross

- examination, because I believe the subject matter of the questioning would have been well within the scope of direct examination. First, I concur in the holding regarding timelin ess and the adequacy of expert disclosures solely because the decision regarding disclosure of expert witnesses and their opinions is within the discretion of the trial judge and I cannot say that the judge abused
his discretion as to this matter. However , I do believe the holding rests on shaky reasoning. The Majority holds that Dr. Coonrod’s disclosure of Dr. Blaylock as a witness14 is inadequate because “even if [the disclosures] had been timely filed, and properly included as expert disclosures, it woul d have been insufficient to meet the standard articulated in I.R.C.P. 26(b)(4).” I respectfully disagree. Dr. Coonrod explicitly and specifically identified Dr. Blaylock as a witness he intended to call and he identified the subject matter of his
testi mony, the facts and data upon which that testimony was based, as well as the qualifications of Dr. Blaylock. The fact that Dr. Coonrod provided that information by way of reference to and incorporation of the content of the deposition and the content of

t he plaintiff’s expert witness disclosures, under the facts of this case, was sufficient to comply with the discovery rules. It seems nonsensical to me, under the circumstances of this case, to require a defendant to re

- type the entire relevant content of the deposition as well as the entire content of plaintiff’s disclosure as to Dr. Blaylock when those documents were clearly incorporated. The plaintiffs were already well aware of the content of Dr. Blaylock’s expected testimony long before trial. Certa inly then, there is no prejudice to plaintiffs that Dr. Coonrod did not fully regurgitate all of the information already known to and supplied by the plaintiff. In the present case, whether the timeliness of these disclosures as well the adequacy of the r esponses to interrogatories caused any prejudice to plaintiffs is highly questionable. I defer to the trial court’s ruling on this issue solely because it was within his discretion. If I were entitled to substitute my discretion, I clearly would have hel d the disclosures adequate, even though slightly late, unless the plaintiff could show some prejudice. State v. Anderson , 145 Idaho 99, 105, 175 P.3d 788, 794 (2008) (holding that the magistrate did not abuse his discretion by not excluding expert testimo ny from trial even though it was not properly disclosed because the aggrieved party “was unable to show any prejudice as a result” of the violation). Since they already knew the full content of Dr. Blaylock’s testimony and the parts favorable to the defen dant, I see no way they could have been prejudiced. In nearly every trial there are issues of adequacy and timeliness of discovery and disclosures on both sides of the controversy. Although I believe the rules should be enforced, I also recognize reality in the trial process, having tried more than 120 cases to a jury verdict in private practice, and believe that unless there is some prejudice to a party there should be some laxity allowed in the requirements15 of such rules, simply because the primary obje ctive is to reach the truth based on all of the substantive admissible evidence rather than on strict adherence to procedural rules when no prejudice is involved. Id. To be clear, I do not condone the practice of late and/or inadequate disclosures
bec ause I believe that under normal circumstances the opposing party could perhaps be prejudiced. While I agree that it is clearly better practice to completely comply with deadlines and the requirements of the rules, I think the unique facts of the present case indicate that sufficient leeway should have been allowed in order to reach a decision on the merits of the case. However, as I have already stated, given the standard of review, I concur with the Majority that there was no abuse of discretion
Anoth er matter on which I wish to comment is the statement in the Majority Opinion that “[i]n the event they [defendants] wish to attempt to meet their burden of proof by calling the expert of their opponent, they must fully comply with the requirements of the Idaho Rules of Evidence.” I do not see anything in the Rules of Evidence that would preclude the admissibility of Dr. Blaylock’s proffered testimony, even though under the Idaho Rules of Civil Procedure the disclosures may not have been timely. Again, I do not think any violation of the timeliness requirements created any prejudice. I note that the discovery deadline was March 1, 2009 and Dr. Coonrod served his answers to interrogatories on the Aguilars on March 3, 2009, even though the answers
were not officially filed , which is not normally required anyway, until March 9. Missing the deadline by two days can hardly be prejudicial when the plaintiffs already knew all of the substantive material and trial was still approximately two months away. Althoug h it may be the better practice for a defendant asserting the defense of comparative negligence to retain his or her own expert, I see nothing in the rules or the case law that would prevent a defendant from relying upon testimony of the opposing party’s e xpert, if desired. Idaho Rule of Civil Procedure 1(a) states that the “rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action and proceeding.” (emphasis added). This Court has reaffirmed the purpose o f this rule. Sines
v. Blaser , 98 Idaho 435, 439, 566 P.2d 758, 762 (1977) (stating that I.R.C.P. 1 “is a constant reminder that the rules are to be liberally construed, and a just result is always16 the ultimate goal to be accomplished.”). This Court has p reviously endorsed a liberal application of the disclosure rules by affirming the district court’s decision to allow an expert witness who was not timely disclosed to testify on rebuttal. McDonald v. Safeway Stores, Inc. , 109 Idaho 305, 309, 707 P.2d 416, 420 (1985). The relevant inquiry should be whether or not the interests of justice are served. See Edmunds v. Kran er , 142 Idaho 867, 873, 136 P.3d 338, 344 (2006) (“ The purpose of our discovery rules is to facilitate fair and expedient pretrial fact g athering. It follows, therefore, that discovery rules are not intended to encourage or reward those whose conduct is inconsistent with that purpose.”)

. I must dissent from that part of Section A holding that Dr. Coonrod could not read Dr. Blaylock’s depo sition to the jury on cross

- examination. Idaho Rule of Civil Procedure 32(a)(1) provides under certain circumstances that a deposition can be used “by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness, or for a ny other purpose under the Idaho Rules of Evidence” (emphasis added). The only Rule of Evidence applicable to this matter would seem to be whether the deposition was being used for cross examination that was outside the scope of direct
examination or was irrelevant. As for the scope of direct, I believe the trial court and this Court apply the rule regarding scope of cross

- examination too narrowly, or at least do not apply it liberally, and thus I would hold that the trial court abused its discretion. Th e rule
states that “[c]ross

- examination should be limited to the subject matter of the direct examination.” I.R.E. 611(b) (emphasis added). Indeed, cross

- examination “is limited to facts stated in the direct examination or connected therewith,” but “this allows cross

examination not only as to all facts stated by a witness in his original examination, but as to other facts connected with them, directly or indirectly tending to explain, modify, or qualify the inference resulting from the facts stated by the witness in his direct
examination.” Towne v. Nw. Mut. Life Ins. Co. , 58 Idaho 83, 70 P.2d 364, 367 (1937). On direct, Dr. Blaylock testified regarding the standard of care for recognizing pulmonary emboli, testified that Dr. Coonrod was negligent for no t diagnosing Maria, and that he caused her death by failing to do so. Cross

- examination of Dr. Blaylock would have allowed Dr. Coonrod to show that at least at one time, Dr. Blaylock believed
the treatment of two doctors other than Dr. Coonrod contributed to the cause of Maria’s death by breaching the standard of care. That fact goes directly to the issue of causation17 which was a subject matter clearly raised on direct. I fail to see how this cross

examination intended to prove comparative causation amon g tortfeasors is outside the scope of direct examination, and I would hold that the district court abused its discretion in determining that it was. I concur with Part B of the Majority’s Opinion.