Nevens v. AZHH LLC (CA1 5/30/17)

This bedsore case is apparently being reported, though it has the feel of a memorandum. The opinion is a bit light on law and logic and a bit heavy on taking sides.

Plaintiff sued a hospital for bedsores she developed there. She had as experts an internist and a vascular surgeon; the hospital had a vascular surgeon, who argued that the bedsores were from a pre-existing condition. Plaintiff’s strategy turned out to be to call the internist during her case-in-chief, have him testify that substandard care caused the bedsores but defer vascular issues to that specialty, and call the surgeon in rebuttal. But when the time came Defendant objected to that. The trial court agreed and prohibited the surgeon’s testimony. The jury returned a defense verdict. Plaintiff appealed.

The Court of Appeals reverses. It first explains that calling the surgeon didn’t violate the one-expert rule since the first expert hadn’t addressed vascular issues. Plaintiff’s surgeon would have addressed the pre-existing-condition issue raised by Defendant’s expert and if any testimony were duplicative Defendant could have objected to it.

Defendant argued that Plaintiff’s proffer concerning the surgeon’s proposed testimony was defective or incomplete. The court says in passing that “the court had the necessary information before it” but mostly blames Defendant for any defects in the proffer – defects it doesn’t describe and apparently holds didn’t exist – because Defendant waited until it rested its own case to object to Plaintiff’s surgeon. The court does not explain how that interfered with Plaintiff’s ability to make a proffer.

The court then says that Defendant hadn’t objected to Plaintiff’s vascular surgeon in the pretrial statement and that failure to do so may be deemed to waive the objection. The court does not actually say that Defendant waived the objection. If it didn’t, the court doesn’t explain why not. If it did, the court doesn’t explain why it devotes the core of the opinion to an argument that had been waived in the trial court.

The remainder of the opinion – about a third of it – discusses issues that could arise on retrial.

(Opinion: Nevens v. AZHH LLC)