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Solimeno v. Yonan - 3/18/2010

Arizona Court of Appeals Division One Holds that A Medical Malpractice Defendant Who Testifies as a Standard of Care Expert is Subject to Expert Disclosure Requirements, and a Party Who Causes a Mistrial May be Assessed Monetary Sanctions Under A.R.S. § 12-349(A)(3).


The intensive care unit of a local hospital admitted Doreen Pullin with blood clots in both lungs.  Dr. Yonan, a pulmonologist, managed Pullin’s care in the ICU.  After Pullin died from the blood clots, plaintiffs filed a medical malpractice lawsuit against Dr. Yonan.  The case proceeded to trial, during which Dr. Yonan took the stand and testified about the physiology of shock, Pullin’s test results, and his experience with and professional opinions of treating blood clots with thrombolytics.  Plaintiff’s objected to this testimony and moved for a mistrial due to insufficient expert disclosure.  The trial court granted he motion, and imposed $125,000 in monetary sanctions against Dr. Yonan under A.R.S. § 12-349(A)(3).  This appeal followed.

The Arizona Court of Appeals first held that Dr. Yonan testified as an expert witness when he described his past experiences with thrombolytics and claimed that his decision not to prescribe those drugs was consistent with the prevailing standard of care.  Dr. Yonan violated the expert disclosure rules by disclosing only that he would “testify that his treatment of Doreen Pullin complied with the applicable standard of care in all respects,” and not disclosing that Dr. Yonan would testify as to his personal experiences with thrombolytics.  Thus, the trial court did not abuse its discretion in finding a discovery violation.

The Appeals Court next held that a trial court may impose sanctions under A.R.S. § 12-349(A)(3) when a parties’ discovery violation results in a mistrial, and thereby “[u]nreasonably expands or delays the proceeding.”

Judge Winthrop separately concurred, explaining his fear that trial counsel are using the discovery rules to gain a tactical advantage at trial, and that the trial bench is not enforcing the discovery rules uniformly.  Judge Winthrop agreed, however, that Dr. Yonan had not properly disclosed his expert testimony regarding his past experiences with thrombolytics.  While Judge Winthrop believed that striking the undisclosed testimony and giving a limiting instruction would have been more appropriate than declaring a mistrial, Dr. Yonan did not appeal the trial court’s declaration of a mistrial, and thus Judge Winthrop also concurred in the sanction imposed.

Judge Downie authored the majority opinion in which Judge Portley concurred; Judge Winthrop separately concurred.

Posted By: Michael S. Catlett

Posted On: 4/12/2010