NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

JILL DILLON, Plaintiff/Appellee/Cross-Appellant,

v.

DUANE D. PITT, et al., Defendants/Appellants/Cross-Appellees.

No. 1 CA-CV 22-0744 

Appeal from the Superior Court in Maricopa County

No. CV2018-010042

The Honorable Jay R. Adleman, Judge

AFFIRMED

COUNSEL

D.F. Rubin Law Firm PLC, Phoenix

By David F. Rubin

Co-Counsel for Plaintiff/Appellee/Cross-Appellant

Brown, Crowell & Friedman, PLLC, Tempe

By Paul D. Friedman, Ronda M. Kelso 

Co-Counsel for Plaintiff/Appellee/Cross-Appellant

Law Office of A.J. Mitchell PLC, Scottsdale

By A.J. Mitchell 

Co-Counsel for Plaintiff/Appellee/Cross-Appellant

Jones Skelton & Hochuli PLC, Phoenix

By Douglas R. Cullins, Eileen Dennis GilBride, Anne E. Holmgren

Counsel for Defendants/Appellants/Cross-Appellees

FILED 10-31-2023
DILLON v. PITT, et al.

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge D. Steven Williams delivered the Court’s decision, in 

which Judge Samuel A. Thumma and Judge Paul J. McMurdie joined.

W I L L I A M S, Judge:

¶1 Defendants Dr. Duane D. Pitt and Desert Institute for Spine 

Disorders, PC (“DISD”) appeal the superior court’s order denying their

motion for remittitur following a jury verdict for Jill Dillon in this medical 

malpractice case. Dillon cross-appeals the court’s grant of summary 

judgment for Pitt and DISD on her breach of fiduciary duty claim, as well 

as the court’s ruling denying her requested punitive damages jury 

instruction. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Pitt performed surgery on Dillon at the Minimally Invasive 

Spine Surgery Center of Paradise Valley (“the Surgery Center”) to fuse 

Dillon’s C2-C3 vertebrae. During the surgery, Pitt observed significant scar 

tissue from previous surgeries and caused a tear in Dillon’s esophagus. Pitt 

aborted the surgery, contacted an ear, nose, and throat surgeon for advice,

and then repaired the esophageal tear after obtaining proper sutures. Dillon 

was transferred to Scottsdale Osborn Medical Center by ambulance and

admitted to the Intensive Care Unit where she remained for ten days. After 

discharge, Dillon developed an infection and was readmitted to the hospital 

for an additional ten days.

¶3 Dillon sued Pitt and DISD (Pitt’s corporation) for medical 

malpractice and breach of fiduciary duty. Dillon alleged that Pitt’s conduct 

—proceeding with the operation despite “observing the condition of her 

neck”—fell below the applicable standard of care, that Pitt had a financial 

interest in the Surgery Center, and that he put his financial interests above 

Dillon’s health and welfare by operating at the Surgery Center, which she 

claimed lacked adequate supplies, equipment, and personnel.

¶4 Before trial, the superior court granted Pitt and DISD’s motion 

for partial summary judgment on Dillon’s breach of fiduciary duty claim.

With respect to DISD, the court noted Dillon had conceded that DISD owed 
DILLON v. PITT, et al.

Decision of the Court

3

her no fiduciary duty.

1 Concerning Pitt, the court found that the factual 

basis for Dillon’s fiduciary duty claim against him “ar[ose] out of [his] 

rendering medical or health-related services.” The court concluded the 

claim was barred by the Medical Malpractice Act (“MMA”), A.R.S. 

§§ 12-561 through 12-573, and requiring Dillon to proceed under the MMA 

alone did not violate the anti-abrogation provision of the Arizona 

Constitution.

¶5 During a seven-day trial, a jury heard evidence relevant to 

Dillon’s medical malpractice claim. After the close of evidence, the superior 

court denied Dillon’s request for a punitive damages jury instruction. The 

jury rendered a $2.8 million verdict for Dillon. Pitt then moved the court for 

either remittitur of the award or a conditional new trial, arguing the verdict 

was excessive and unsupported by the evidence. The court denied both 

requests.

¶6 We have jurisdiction over Pitt and DISD’s appeal, as well as

Dillon’s cross-appeal, under Article 6, Section 9, of the Arizona Constitution 

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

DISCUSSION

I. Appeal

¶7 Pitt argues the superior court erred in denying his motion for 

remittitur. We review the court’s remittitur ruling for an abuse of 

discretion. Desert Palm Surgical Grp., P.L.C. v. Petta, 236 Ariz. 568, 581, ¶ 37

(App. 2015). 

A. Standard for Denial of Motion for Remittitur

¶8 Pitt first argues the superior court applied an incorrect legal 

standard when it denied his motion for remittitur. “[R]emittitur is a device 

for reducing an excessive verdict to the realm of reason” that “should be 

ordered only for the most cogent reasons, such as a lack of evidence 

supporting the damages awarded.” Id. at 581, ¶ 38 (internal quotation 

omitted). “[I]f a verdict is so unfair, unreasonable, and outrageous as to 

shock the conscience of the court, or is plainly the product of passion, 

1 See Gonzales v. Palo Verde Mental Health Servs., 162 Ariz. 387, 389 (App. 

1989) (concluding no recognized fiduciary relationship exists between a 

patient and a hospital). 
DILLON v. PITT, et al.

Decision of the Court

4

prejudice, mistake, or disregard of the evidence, a court may grant a 

remittitur or a new trial.” Id. at 581-82, ¶ 38 (citation omitted).

¶9 Here, Pitt moved for a remittitur or a conditional new trial. In 

its ruling, the superior court set forth both the remittitur and the new trial 

standards. After examining the record and recounting with detail the 

testimony supporting the damages award, the court found the evidence 

reasonably supported the $2.8 million verdict and concluded the verdict 

neither shocked the conscience nor was so unfair and outrageous that it 

required court intervention. These explicit findings demonstrate that the 

court both considered the appropriate standard for remittitur and 

addressed the new trial standard. Id. at 581-82, ¶ 38. Pitt has shown no error.

B. Sufficiency of the Evidence Supporting the Verdict

¶10 Pitt next argues the record does not support the $2.8 million 

verdict. As noted supra, a superior court should order remittitur only when 

there is insufficient evidence to support the damages award or if there is a 

“clear indication that the jury misapplied the principles governing 

damages.” In re Estate of Hanscome, 227 Ariz. 158, 162, ¶ 14 (App. 2011).

Because the superior court, like the jury, has an opportunity to observe 

witnesses’ demeanor, we extend great deference to its remittitur and new 

trial rulings. Creamer v. Troiano, 108 Ariz. 573, 575 (1972). 

¶11 Although hotly disputed, the trial evidence permitted a 

reasonable jury to conclude that Pitt’s conduct fell below the reasonable 

standard of care when he performed (an unnecessary) surgery on Dillon 

where pre-surgery CT scans showed that Dillon’s C2-C3 vertebrae had 

already fused through a process called auto-fusion. The jury also heard 

evidence that Dillon suffered an esophageal tear and acute respiratory 

acidosis, was transferred from the Surgery Center to the hospital, and was 

admitted to the Intensive Care Unit. Dillon later suffered gastronomy tube 

dislodgement and underwent a corrective procedure, resulting in a scar 

from the placement of 31 abdominal staples. Then, after her initial hospital

discharge, Dillon was readmitted for ten days due to infection and 

ultimately suffered pain, stress, depression, and suicidal ideations. The 

superior court properly instructed the jury it could award damages for the 

nature, extent, and duration of the injury, pain, discomfort, suffering, 

disability, and disfigurement and consider any resulting anxiety and loss of 

enjoyment of life. Nothing in the record suggests the jury did not follow the 

jury instructions. The trial record supports the jury’s verdict, and Pitt has 

provided no basis to conclude the court erred in upholding it. Hanscome, 

227 Ariz. at 162, ¶ 14.
DILLON v. PITT, et al.

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¶12 During closing arguments, Dillon’s attorney told the jury that 

it had to decide the value of damages and that “[w]hether it’s one dollar or 

$10 million, you all decide. I will suggest to you that it’s $1.5 million.” Pitt 

asserts remittitur was required because the jury awarded more than 

Dillon’s attorney suggested, but the jury’s verdict is within the range of 

possible damages mentioned by Dillon’s attorney. Even then, the jury was

not limited by counsel’s suggestion, particularly given the jury’s 

consideration of damages for pain, discomfort, suffering, disability, and 

disfigurement. Ahmad v. State, 245 Ariz. 573, 577, ¶ 9 (App. 2018); see also

Meyer v. Ricklick, 99 Ariz. 355, 357-58 (1965) (noting that the damage amount 

in personal injury action is particularly within the jury’s province, and the 

“law does not fix precise rules for the measure of damages but leaves their 

assessment to a jury’s good sense and unbiased judgment.”).

¶13 Although Pitt cites other jury verdicts, suggesting the verdict 

here is excessive, comparable verdict information is “only marginally 

relevant and the trial court should not treat other damage awards as 

conclusive in assessing whether the jury made a just award.” Soto v. Sacco, 

242 Ariz. 474, 482, ¶ 22 (2017). That Dillon did not claim future expenses or 

other economic loss also does not alter the analysis. There is no requirement 

that a plaintiff suffer economic damages. See Ahmad, 245 Ariz. at 577, ¶¶ 8, 

9 (reversing court’s remittitur of jury verdict from $30 million to $10 million 

and remanding for entry of judgment on the jury’s verdict even though no 

economic damages claimed in wrongful death action resulting from 

unnecessary police pursuit).

II. Cross-Appeal

A. Breach of Fiduciary Duty Claim

¶14 Dillon argues the superior court erred in granting summary 

judgment to Pitt on her claim for breach of fiduciary duty and seeks a new 
DILLON v. PITT, et al.

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6

trial on this claim.

2 Pitt contends the court correctly ruled the MMA

preempts the breach of fiduciary duty claim against him.

3

¶15 We review de novo a grant of summary judgment to 

determine if the superior court properly applied the law and whether any 

genuine issues of material facts exist. Ariz. R. Civ. P. 56(a); Dinsmoor v. City 

of Phoenix, 251 Ariz. 370, 373, ¶ 13 (2021). We view the record in the light 

most favorable to Dillon. Dinsmoor, 251 Ariz. at 373, ¶ 13. 

¶16 Under the MMA, a party shall not bring a medical malpractice 

action against a licensed healthcare provider except in cases of alleged 

negligence, misconduct, errors, omissions, or breach of contract “in the 

rendering of health care, medical services, nursing services or other 

health-related services.” A.R.S. §§ 12-562(A), -561(2). Relying on Duncan v. 

Scottsdale Medical Imaging, Ltd., 205 Ariz. 306 (2003), Dillon argues the 

superior court’s ruling applying the MMA unconstitutionally abrogated 

her right under Article 18, Section 6, of the Arizona Constitution (the 

anti-abrogation clause)

4 to recover damages caused by Pitt’s breach of his 

common-law fiduciary duty. 

¶17 In Duncan, the plaintiff brought a claim for common law 

battery after her healthcare providers gave her a particular painkiller 

against her express wishes. 205 Ariz. at 308, ¶ 1. The superior court 

reclassified the battery claim as one for medical malpractice under the 

MMA and required expert testimony. Id. at 309, ¶ 6. It then dismissed the 

battery claim when the plaintiff failed to disclose an expert. Id. at 309, ¶ 7. 

Focusing on the underlying theory of liability for battery and the nature of 

the harm alleged (infringing on the patient’s right of self-determination, 

specifically, the right to determine which medications she would accept or 

2 In her opening brief, Dillon does not develop any argument that the 

superior court erred in granting partial summary judgment to DISD. 

Although Dillon argues in her cross-reply brief that DISD is vicariously 

liable for Pitt, arguments made for the first time in a reply brief are waived. 

Anderson v. Country Life Ins. Co., 180 Ariz. 625, 636 (App. 1994).

3 Pitt also argues his subsequent bankruptcy discharge bars the breach of 

fiduciary duty claim. Given our resolution of this issue, we need not 

address Pitt’s bankruptcy discharge status.

4 Article 18, Section 6, of the Arizona Constitution provides that “[t]he right 

of action to recover damages for injuries shall never be abrogated, and the 

amount recovered shall not be subject to any statutory limitation.”
DILLON v. PITT, et al.

Decision of the Court

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reject), the supreme court reversed and held that A.R.S. § 12-562(B) 

—a provision of the MMA that prohibits a plaintiff from bringing a cause 

of action for battery against a licensed healthcare provider

—unconstitutionally abrogated the common law claim of battery. Id. at 

313-14, ¶¶ 32-34. In contrast to a battery claim, a medical negligence claim

“recognizes a physician’s obligation to provide reasonable disclosure of the 

available choices with respect to the proposed procedures and the dangers 

inherently and potentially involved in each.” Id. at 313-14, ¶ 32 (quoting 

Rubino v. De Fretias, 638 F. Supp. 182, 185-86 (D. Ariz. 1986)). Because the 

battery theory addressed a different harm than a medical malpractice 

action—the “injury” of “a violation of [the] right of self-determination”

—the supreme court permitted Duncan to proceed with her common-law

battery action outside the MMA. Id. at 314, ¶ 34.

¶18 In this case, Dillon alleged a breach of fiduciary duty based 

on Pitt’s financial interest in the Surgery Center. Arizona case law 

recognizes that a physician owes a fiduciary duty to a patient, based on 

trust and confidence, to act in the patient’s best interests by exercising the 

utmost good faith in rendering healthcare services. Hales v. Pittman, 118 

Ariz. 305, 308-09 (1978) (noting that when a patient has given informed 

consent, a physician is not liable to a patient for unfavorable results absent 

malpractice or breach of contract in cases of guarantee or warrantee); see 

also Nuzzo v. Camarata, 2018 WL 4148990, *5, ¶ 21 (Ariz. App. Apr. 17, 2008) 

(mem. decision) (noting that the “utmost good faith” requirement refers to 

a physician acting in the best interests of the patient regarding his medical 

care). 

¶19 As reflected in the complaint, the operative facts underlying 

Dillon’s medical malpractice and breach of fiduciary duty claims were 

identical. Specifically, for both claims, Dillon alleged that Pitt’s conduct fell 

below the applicable standard of care, that Pitt had a financial interest in 

the Surgery Center, and that Pitt put his financial interests above her health 

and welfare by performing the surgery at the ill-equipped Surgery Center.

Equally important, Dillon alleged essentially the same physical harm under 

both claims, including that Pitt’s actions subjected her to additional medical 

care. Although Dillon argues for the first time on appeal that she could have 

recovered disgorgement damages had she been permitted to pursue the

breach of fiduciary duty claim at trial, she never suggested that discrete 

damages were available under that theory of liability in the superior court, 

either in her complaint or in her response to Pitt’s motion for summary 

judgment. Indeed, Dillon did not raise such a claim in a motion to 

reconsider the summary judgment ruling, and in her request for jury 
DILLON v. PITT, et al.

Decision of the Court

8

instructions on breach of fiduciary duty, Dillon requested only standard

personal injury damages instructions for the measure of damages.

¶20 While other operative facts may give rise to discrete damages 

under medical malpractice/breach of fiduciary duty theories of liability, in 

this action, under Dillon’s framing, no such damages were contemplated, 

much less alleged. Absent such allegations, the damages available under 

the breach of fiduciary duty claim were effectively subsumed in the medical 

malpractice claim. In other words, on this record, Dillon’s claims were 

alternative theories for recovering the same damages resulting from the 

same injuries. Because “[a] plaintiff may not receive a double recovery for 

the same injuries or losses arising from the same conduct or wrong,” 22 Am. 

Jur. 2d Damages § 32; see also Vairo v. Clayden, 153 Ariz. 13, 19 (App. 1987)

(“[A] person is not entitled to recover twice for the same elements of 

damage growing out of the same occurrence.”), even if the superior court 

erred by entering summary judgment on the claim for breach of fiduciary 

duty, Dillon suffered no resulting prejudice,see Ariz. R. Civ. P. 61 (imposing 

a harmless error standard, such that “[u]nless justice requires otherwise, . . 

. the court must disregard all errors and defects that do not affect any 

party’s substantial rights”). Dillon therefore has shown no reversible error.5

B. Denial of Request for Punitive Damages Jury Instruction

¶21 Dillon challenges the superior court’s denial of her request for 

a punitive-damages jury instruction, arguing sufficient evidence supported

the instruction. Pitt responds that the issue is waived because Dillon failed 

to move for a new trial as required by A.R.S. § 12-2102(C). Dillon counters 

that we may review the court’s ruling under A.R.S. § 12-2102(A).

¶22 Although A.R.S. § 12-2102(A) permits an appellate court to 

review intermediate rulings affecting a final judgment despite the absence 

5 Given our resolution of this issue, we need not address Dillon’s contention 

that the superior court’s ruling requiring her to proceed under the MMA 

instead of a common-law theory of breach of fiduciary violated Article 18, 

Section 6, of the Arizona Constitution. Nor do we consider Dillon’s claim,

for the first time on appeal, that the MMA unconstitutionally violates the 

equal protection and privileges and immunities clauses. See Cook v. Cook, 

209 Ariz. 487, 493 n.6 (App. 2005) (finding constitutional issues not raised 

in the superior court waived); see also State v. Mills, 196 Ariz. 269, 274, ¶ 22

(App. 1999) (finding waiver of equal protection argument initially raised on 

appeal).
DILLON v. PITT, et al.

Decision of the Court

9

of a motion for a new trial, subsection C of the statute provides an 

exception:

On an appeal from a final judgment the supreme court shall 

not consider the sufficiency of the evidence to sustain the 

verdict or judgment in an action tried before a jury unless a 

motion for a new trial was made.

A.R.S. § 12-2102(C) (emphasis added); see also Lewis v. S. Pac. Co., 105 Ariz. 

582, 583 (1970) (noting that subsection C is an exception to subsection A). 

¶23 As relevant here, a party must move for a new trial to 

challenge the sufficiency of the evidence supporting or failing to support a 

jury instruction. See A.R.S. § 12-2102(C); Lewis, 105 Ariz. at 583 (holding a 

party must move for a new trial when challenging jury instructions based 

on the sufficiency of the evidence); see also Ariz. R. Civ. P. 59(a)(1)(F) and 

(H) (providing a motion for new trial may challenge jury instructions and 

sufficiency of the evidence, respectively); Marquette Venture Partners II, L.P. 

v. Leonesio, 227 Ariz. 179, 184, ¶ 22 (App. 2011) (refusing to consider under 

A.R.S. § 12-2102(C) a challenge to a jury instruction based on the sufficiency 

of the evidence in the absence of a post-verdict motion).

¶24 Citing Lewis, 105 Ariz. at 583, Dillon argues that A.R.S. 

§ 12-2102(C) does not apply here because the requested instruction applied 

to damages and case law interpreting the statute specifically refers only to 

instructions related to a “theory of the case.” But the statute’s plain 

language is not limited to challenges to theories of the case. A.R.S. 

§ 12-2102(C). Further, the statute has been applied when a party sought a 

jury instruction related to damages. See Life Invs. Ins. Co. of America v. 

Horizon Res. Bethany, Ltd., 182 Ariz. 529, 533 (App. 1995) (holding that a 

challenge to the failure to give a mitigation-of-damages jury instruction 

based on insufficiency of the evidence required moving for new trial).

¶25 Dillon also suggests she is not challenging the verdict, so 

A.R.S. § 12-2102(C) does not apply. While it is true that Dillon is not 

challenging the $2.8 million compensatory damages verdict, she is 

challenging the judgment, which, in her view, fails to include an award for 

punitive damages. Thus, the statute’s plain language applies, and Dillon 

had to file a motion for a new trial to preserve the issue. A.R.S. § 12-2102(C) 

(applying to “verdict or judgment”). Accordingly, we do not review the 

superior court’s ruling denying Dillon’s requested jury instruction.
DILLON v. PITT, et al.

Decision of the Court

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CONCLUSION

¶26 For the foregoing reasons, we affirm the superior court’s 

judgment. Because the parties have not been successful in their respective 

appeals, each side shall bear its own costs.