Coleman v. Amon

51 Arizona Cases Digest 17

498 P.3d 638

Sean and Jodie COLEMAN, husband and wife; individually and on behalf of their minor child, Lane Coleman, Plaintiffs/Appellants,

v.John Brock AMON, M.D. and Jean Marie Amon, husband and wife, Defendants/Appellees.

No. 1 CA-CV 19-0350

Court of Appeals of Arizona, Division 1.

FILED August 17, 2021

AS AMENDED August 25, 2021

Ahwatukee Legal Office PC, Phoenix, By David L. Abney, Co-Counsel for Plaintiffs/Appellants

Law Office of Raymond J. Slomski PC, Phoenix, By R.J. Bucky Slomski, Co-Counsel for Plaintiffs/Appellants

Jones Skelton & Hochuli PLC, Phoenix, By Eileen Dennis Gilbride, Co-Counsel for Defendants/Appellees

Holden & Armer PC, Phoenix, By Scott A. Holden, Michael J. Ryan, Nathan S. Ryan, Co-Counsel for Defendants/Appellees

Presiding Judge Michael J. Brown delivered the opinion of the Court, in which Judge Jennifer B. Campbell and Judge D. Steven Williams joined.

BROWN, Judge:

¶1 In this medical malpractice action, plaintiffs Sean and Jodie Coleman appeal the superior court's judgment entered following a jury verdict in favor of defendant Dr. John Amon.¹ The Colemans challenge (1) the constitutionality of A.R.S. § 12-2605, which generally bars a healthcare provider's apologetic statements as evidence of liability or an admission against interest in a civil action; and (2) several evidentiary rulings. We conclude § 12-2605 does not violate the Arizona Constitution's provisions relating to separation of powers, special laws, or privileges and immunities, and the court did not commit reversible error in addressing the evidentiary matters.

BACKGROUND

¶2 Jodie was pregnant with twin boys; Dr. Amon was her obstetrician. Because Jodie was considered a high-risk patient, Dr. Amon and the Colemans repeatedly discussed that a cesarean section ("C-section") would be scheduled, but a date had not been set when Jodie went into labor sooner than anticipated. After the Colemans arrived at the hospital, staff began fetal monitoring. Dr. Amon was scheduled to perform a C-section on another patient that morning, so Dr. William Brown, the on-call doctor, stepped in to handle the delivery. Dr. Amon anticipated Dr. Brown would perform a C-section, but Dr. Brown confidently told Jodie he wanted to do a vaginal delivery because it was the safest way. Though Jodie was initially nervous, she agreed with Dr. Brown's recommendation.

¶3 After the first twin was born without complications, the second twin ("the baby") became entrapped in the birth canal. A nurse summoned Dr. Amon for assistance, but by the time the baby was finally delivered, he had been deprived of oxygen for at least six minutes and had no heartbeat for about 15 minutes after birth. The baby was revived but suffered brain damage.

¶4 The Colemans sued Dr. Amon, Dr. Brown, the hospital, and others, alleging they negligently caused the baby to suffer severe and permanent injuries. After extensive pretrial litigation, Dr. Amon was the only remaining defendant in the 15-day trial. The jury returned a defense verdict, and the superior court denied the Colemans’ post-trial motions. This timely appeal followed.

DISCUSSION

¶5 We review the superior court's rulings on the admissibility of evidence for an abuse of discretion, Spooner v. City of Phoenix , 246 Ariz. 119, 122, ¶ 5, 435 P.3d 462, 465 (App. 2018), and will not reverse unless the court incorrectly applied the law, resulting in unfair prejudice, Larsen v. Decker , 196 Ariz. 239, 241, ¶ 6, 995 P.2d 281, 283 (App. 2000) ; see also Creach v. Angulo , 189 Ariz. 212, 214, 941 P.2d 224, 226 (1997). We review de novo the interpretation and constitutionality of statutes. See Stambaugh v. Killian , 242 Ariz. 508, 509, ¶ 7, 398 P.3d 574, 575 (2017) ; Gallardo v. State , 236 Ariz. 84, 87, ¶ 8, 336 P.3d 717, 720 (2014). We apply a statute's text as written, Stambaugh , 242 Ariz. at 509, ¶ 7, 398 P.3d at 575, and do not employ secondary construction principles unless the language is open to multiple reasonable interpretations, Glazer v. State , 244 Ariz. 612, 614, ¶ 12, 423 P.3d 993, 995 (2018).

A. Application and Scope of A.R.S. § 12-2605

¶6 In her deposition, Jodie testified that when Dr. Amon first visited her after the delivery, he told her he was sorry. Jodie said that during his next visit, Dr. Amon told her "how sorry he was, and that he felt like he had let [the Colemans] down." Jodie also explained that during a different conversation, Sean asked Dr. Amon, "If we would have stayed with the C-section, would this have happened?" According to Jodie, "Dr. Amon put his head down and he said ‘No.’ "

¶7 Dr. Amon recalled these conversations differently. In his deposition, he denied telling Jodie he was sorry or had let the Colemans down. Instead, he said that "[t]he discussion that we had is we -- and we mentioned this -- is when Sean mentioned if this could have been avoided with a [C-]section. And then we went forward in talking about how it's hard to kind of discuss that." When asked again if he told Jodie he felt like he had let her down, Dr. Amon replied, "I don't recall."

¶8 Before trial, Dr. Amon filed a motion in limine to preclude any testimony that he had said he was sorry or had let the Colemans down, as Jodie had testified in her deposition. Dr. Amon disputed that such a conversation occurred, but maintained that even if it did, the apology was inadmissible under A.R.S. § 12-2605, which was adopted in 2005 and provides as follows:

Any statement, affirmation, gesture or conduct expressing apology, responsibility, liability, sympathy, commiseration, condolence, compassion or a general sense of benevolence that was made by a health care provider or an employee of a health care provider to the patient, a relative of the patient, the patient's survivors or a health care decision maker for the patient and that relates to the discomfort, pain, suffering, injury or death of the patient as the result of the unanticipated outcome of medical care is inadmissible as evidence of an admission of liability or as evidence of an admission against interest .

(Emphasis added.)² Dr. Amon argued his apology "clearly fits within the wide umbrella of this statute." In their response, the Colemans countered that § 12-2605 violates several provisions of the Arizona Constitution but even assuming its validity, the statute must be strictly construed. As such, the Colemans asserted that a "statement regarding an apology or remorse may still be admissible for another purpose," including impeachment. Specifically, they argued:

Dr. Amon's statements that he was sorry, and that he let the Colemans down, are admissible to impeach and rebut his conflicting arguments. Dr. Amon's position is that ‘he met the standard of care in all aspects of his involvement in [Jodie]’s care,’ and that ‘nothing he did or did not do caused any injury to [Jodie] or [the baby], or otherwise caused or contributed to [the Colemans’] alleged damages as claimed in this lawsuit.’... Moreover, Dr. Amon denies that he told Jodie that he was sorry and felt like he let her down .... Thus, his statements that he was sorry, and that he let the Colemans down, are admissible to impeach his testimony and rebut his arguments.

¶9 Following a brief exchange with the parties at the final pretrial conference, the court granted Dr. Amon's motion in limine, reasoning in part that "just based on the statute, it looks like it has to be granted, but that's not to foreclose the possibility of something happening[,] some other evidence that comes in where the [c]ourt finds that there's been a door opened." After further discussion concerning the scope of the ruling, the Colemans questioned whether the motion was meant to exclude the entire conversation between Jodie and Dr. Amon. They also expressed concern about the possibility of Jodie inadvertently referring to the apology-related statements at trial. The Colemans then referred to the separate conversation between Sean and Dr. Amon—whether the outcome would have been different if a C-section had been performed—prompting the court to ask, "why would that not come in[?]" Dr. Amon clarified that the conversation with Sean was not part of the motion, and that conversation was not mentioned further. The court concluded that the apology referenced in the motion was precluded, but added: "I cannot basically say the door would never be opened. I don't know. I'm saying the door is very unlikely to be opened because the way the statute is." The court did not otherwise address whether the apology evidence could be used to impeach Dr. Amon, nor did the court offer any reasoning for rejecting the Colemans’ arguments that the statute is unconstitutional.

¶10 The Colemans do not argue the court erred in finding that § 12-2605 precluded them from using Dr. Amon's apologetic statements as admissions of liability or against his interest. Instead, they renew their argument that § 12-2605 violates three provisions of the Arizona Constitution, and alternatively assert that such statements were admissible for impeachment purposes.

B. Separation of Powers

¶11 The Colemans argue § 12-2605 is unconstitutional because it impermissibly constrains the judiciary's authority to make procedural rules of evidence. The Arizona Constitution mandates that the legislative, executive, and judicial departments "shall be separate and distinct, and no one of such departments shall exercise the powers properly belonging to either of the others." Ariz. Const. art. III. It also delegates to our supreme court the "[p]ower to make rules relative to all procedural matters in any court." Ariz. Const. art. VI, § 5 (5) (emphasis added).

Although the legislature may enact statutes addressing procedural matters that supplement the courts’ evidentiary rules, "in the event of irreconcilable conflict between a procedural statute and a rule, the rule prevails." Seisinger v. Siebel , 220 Ariz. 85, 89, ¶ 8, 203 P.3d 483, 487 (2009). We must therefore first decide if §...