Sandretto v. Payson Healthcare Mgmt., Inc. – 3/11/2014

April 1, 2014

Arizona Court of Appeals Division Two Holds That Under Ariz. R. Evid. 702, a Medical Expert’s Testimony Is Admissible if the Expert Is Qualified to Testify About a Recognized Medical Condition, Regardless of Whether He Can Satisfy Certain Daubert Factors That Are More Appropriate for Products Liability Cases Dealing with Scientific Matters.

Plaintiff Lori Sandretto saw Dr. Charles Calkins, an orthopedic surgeon employed by Defendant Payson Healthcare Management, Inc. (“PHM”), for a torn meniscus in her knee.  Calkins performed surgery on the knee on September 5, 2008.  Within a week, Sandretto’s knee became swollen and she was examined by a physician’s assistant (PA) for Calkins who prescribed antibiotics for a skin infection.  After a trip to the emergency room and several visits with Calkins and his PA, Sandretto had fluid removed from her knee on October 10, 2008 for testing.  Three days later, the tests came back positive for a MRSA infection.  On October 22, 2008, Sandretto saw Calkins again, and he performed three additional surgeries to clean out the infection, as well as a knee replacement.   In 2010, Sandretto sued Calkins and PHM for medical malpractice, alleging that they did not act quickly enough to diagnose and treat the MRSA infection, which resulted in three aggressive surgeries to clean the infection that, in turn, caused permanent injury and pain.  Calkins settled with Sandretto before trial, and a jury awarded Sandretto over $7 million in damages against PHM.  After the entry of judgment, PHM moved for a new trial, which was denied.  PHM appealed only the denial of its new trial motion, not the judgment.   

The Arizona Appeals Court affirmed.  The Court first held that testimony was admissible from Dr. Michael Ferrante, an expert who testified that Sandretto suffered from Complex Regional Pain Syndrome (CRPS) caused by one or more of the three surgeries required to rid her knee of the MRSA infection and replace the knee.  The Court rejected PHM’s argument that Ferrante’s testimony was not supported by reliable or scientific grounds.  The Court explained that the factors for determining whether scientific evidence is admissible, as set forth in Arizona Rule of Evidence 702 and Daubert v. v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), require flexibility and are more applicable to products liability cases than medical testimony.  Indeed, the Court noted that when Arizona adopted the federal version of Rule 702, it made clear that the change “is not intended to . . .  preclude the testimony of experience-based experts.”  Ariz. R. Evid. 702 cmt.  Applying these principles here, the Court found that Sandretto had established Ferrante’s qualifications to testify about the CRPS diagnosis and cause because, among other things, he was chief of pain medicine at UCLA Medical School and had extensive experience with CRPS.  The Court also held that although PHM challenged the substance of Ferrante’s testimony on a scientific basis, this was not sufficient to exclude Ferrante’s testimony given that he was a qualified physician with expertise in a recognized medical condition who testified about the cause of the condition in a particular patient based on his examination and testing.  And to the extent PHM challenged certain portions of Ferrante’s testimony, such arguments were for the jury to decide. 

The Court also rejected PHM’s arguments that the trial court erred by (1) precluding evidence of Sandretto’s prior medical conditions, (2) allowing testimony by Sandretto’s future care expert, (3) allowing Sandretto’s standard of care expert to provide opinions that it claimed had not been disclosed, (4) by not continuing the trial so that PHM could litigate whether Calkin’s settlement with Sandretto was made in good faith, (5) ruling that PHM was vicariously liable for Calkin’s acts and omissions, (7) ruling that there was no improper collusion between Calkins and Sandretto, and (8) denying the motion for new trial on the basis that there was insufficient evidence to support the jury’s damages award.  The Court found that the trial court did not abuse its discretion with respect to any of these issues.

Judge Miller authored the opinion; Presiding Judge Vasquez and Chief Judge Howard concurred.