Evidence—Defense Expert Testimony as to Possible Cause of Harm

Benkendorf v. Advanced Cardiac Specialists, __Az. Adv. Rep. __, 1 CA-CV 09-0697 (App. Div. I, January 24, 2012) (J. Brown)

WHILE PLAINTIFF MUST PROVE CAUSATION IS PROBABLE, DEFENSE MAY CHALLENGE CAUSATION WITH EXPERT TESTIMONY AS TO WHAT IS POSSIBLE

Plaintiff’s wife underwent surgery to remove a cancerous kidney. Thereafter she developed a blood clot and died.  Plaintiff brought a medical malpractice wrongful death case alleging Advanced Cardiac Specialists was negligent in the administration and monitoring of Coumadin and that this caused the brain hemorrhage which killed plaintiff’s decedent.  Plaintiff filed a  motion in limine attempting to preclude the defense expert from testifying as to  alternative “possible” causes of the decedent’s death. Plaintiff argued that in medical negligence cases causation must be proven to a “reasonable degree of medical probability.”  Although the defense expert did testify that the decedent’s “outcome” would “probably” be the same with or without better monitoring of the Coumadin, he also testified that there were other “possible” causes of the decedent’s death including her age, hypertension, the removed kidney tumor and her history of stroke. Plaintiff’s motion in limine was denied, the jury returned a defense verdict and the Arizona Court of Appeals affirmed.

The court of appeals first acknowledged that a plaintiff, because he has the burden of proof, must indeed prove causation to a reasonable degree of medical probability.  However, the same is not true for the defense because the defense has no burden and may choose “merely to rebut plaintiff’s evidence.”  In noting that this holding was consistent with the majority rule, the court seemed to at least imply that testimony as to “possible” causes may need to be accompanied by testimony that defendant’s conduct was “probably” not the cause and that such testimony is particularly admissible when plaintiff’s expert testifies that no other cause could have been the cause of the plaintiff’s injury.  Further the court noted that the trial judge has broad discretion to nonetheless preclude such testimony if it deems it speculative or otherwise unreliable and without adequate foundation. 

[Editors Note: the new expert witness evidentiary rules (http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/12/02203.htm&Title=12&DocType=ARS) (ARS sec. 12-2203) recently adopted by our supreme court were not applicable to this case. It will be interesting to see how they impact upon this holding in future cases.  While the statute does increase the trial court’s scrutiny of the reliability of expert testimony it does not distinguish between a plaintiffs’ expert and a defendants’ expert, nor does it reference the burden of proof.]

Many Antidepressants Boost Risk of Falls in Dementia Patients

A recent medical study shows that nursing home residents, including those in Tucson, that take SSRI antidepressants have an increased risk of having a fall that causes injury.  SSRI antidepressants include often prescribe drugs such as Celexa, Lexapro, Prozac, Paxil, Zoloft, and Viibryd.

Doctors believe that these drugs contribute to falls because they cause daytime drowsiness, sedation, dizziness, and loss of motor control. The chance of having a fall in a Tucson nursing home that causes injury increases the more that these medicines are taken. Doctors call this a dose dependent relationship.

This is an important new study because many patients that are in nursing homes are prescribed these medications. Often, elderly, sick patients are depressed. These medications can be an important part of their treatment.  

Falls are a major source of Tucson nursing home neglect and injury.  Based on this new research, it is important for Tucson nursing homes and physicians to be aware of this potential side effect, and take the necessary precautions to avoid falls and potentially take other measures to avoid prescription of these popular medicines.

If you have concerns that your loved one was subjected to nursing home neglect or abuse in the Tucson, Arizona area, please do not hesitate to contact Jim Campbell, at 520-545-1675.

For more information see:  SSRIs Boost Risk of Falls in Dementia Patients.

By Jim Campbell

US FDA Wants New Studies on Surgical Pelvic Mesh Implants

U.S. health regulators ordered new safety studies for surgical mesh implants that are used to hold pelvic organs in place, citing a spike in the number of complications seen for female patients, including erosion and infection. Many Tucson woman have suffered significant pain, disability, and interruptions in their normal life because of complications from surgical mesh.  The Food and Drug Administration also said it may reclassify the devices in a higher-risk category that would require manufacturers, such as Boston Scientific and a unit of Johnson & Johnson, to conduct clinical trials in people before receiving approval for sale. The FDA said it received more than 1,500 reports of complications related to the repairs with mesh from 2008 to 2010, including cases in which the mesh eroded into the vagina or caused bleeding and infection. The rate of problems was five times the rate reported from 2005 to 2007. The FDA sent letters this week to 35 manufacturers of transvaginal surgical mesh, requesting three-year studies of several hundred women each to study side effects, as well as the women's overall quality of life.US FDA Wants New Studies on Surgical Mesh Implants

We have seen first hand the trauma that our Tucson and Arizona clients have endured because of mesh product failures and medical malpractice. If you have suffered because of a pelvic mesh procedure or medical malpractice, please contact James Campbell at 520-545-1675.


By James Campbell

Boy loses eyesight, doctor sued

By: Matt Schmidt

Adam Mlodzinski's pediatrician Dr. Judy Huang-Bulger is being sued for failing to recognize Adam's meningitis. The suit alleges that the bacterial meningitis caused him to lose his eyesight. Huang-Bulgar initially diagnosed the meningitis as an ear infection.

According to Centers for Disease Control and Prevention, early diagnosis and treatment of bacterial meningitis is critical.


The family took several trips to Huang-Bulgar, but Adam's condition continued to worsen.

The family attorney alleges that Huang-Bulger should have sent Adam for spinal tap, which potentially could have revealed that the boy was suffering from meningitis, and antibiotics could have been administered intravenously to stop the deadly disease before it took his eyesight.

Insurance—Damron Agreement

By: Ted Schmidt

Colorado Casualty Ins. Co. v. Safety Control Co., Inc., 625 Ariz. Adv. Rep. 7 (App. Div. I, January 5, 2012) (J. Johnsen)

DAMRON AGREEMENT ENFORCEABLE EVEN WHEN INSURED IS DEFENDED AND INDEMNIFIED BY AN EXCESS CARRIER/JUDGMENT ENTERED AS PART OF DAMRON BINDS INSURER REFUSING TO DEFEND REGARDING FACTS SUPPORTING DUTY TO INDEMNIFY

DBA Construction contracted with Arizona to perform a road improvement project and hired Safety Control Co. as a sub contractor.  Safety Control obtained liability insurance from Employers Mutual Casualty [EMC]and DBA obtained excess coverage from Colorado Casualty.  A motorist involved in a collision at the construction site sued the state and DBA.  Colorado Casualty tendered the defense of DBA to Safety Control and EMC. The tender was rejected. Colorado Casualty paid the injured motorist $75,000 and the state paid $20,000.  DBA and the state entered a stipulated judgment for $750K with the motorist who agreed not to execute on the judgment [a Damron agreement]. DBA and the state assigned the motorist their rights against the subcontractors and their insurers. Ultimately the trial court ruled that EMC breached its duty to defend and was liable to pay the stipulated judgment and attorneys’ fees. The Arizona Court of Appeals affirmed in part and reversed and remanded in part.

The court of appeals rejected EMC’s argument that the Damron agreement was collusive or fraudulent based upon the fact the insured was not left without a defense and subject to personal liability when EMC refused the tender because Colorado Casualty stood to defend and indemnify.  The court noted that if EMC was primarily responsible to defend and indemnify it would be precluded from escaping the consequence of a judgment entered when it turned its back.

Here the question of EMC’s responsibility to indemnify turned upon whether or not the judgment constituted a liability that “arises out of” the subcontractor Safety Control’s work.  If the judgment in fact resolved that question than EMC having elected not to defend would be bound by such a determination.  However, the court found that the stipulated judgment did not specify how the collision occurred or how any of the parties were negligent. In fact the stipulated judgment incorporated by reference a settlement agreement where the parties expressly denied any liability. While the duty to defend is determined by the allegations in the complaint and the facts known at the time of the tender, the duty to indemnify is determined by the facts actually proven and established.  Because it was not determined in this action whether or not the damages and consequent stipulated judgment arose out of work by Safety Control the court remanded the matter for such a determination by the trial court.

Family of woman who died in botched buttocks surgery sue for wrongful death

By: Matt Schmidt

Family of the 42-year old mother and mother of three has filed two separate wrongful death suits against the husband and wife who performed the illegal surgery in the back room of their Tiles N More Business. The lawsuits are asking for more thank $10,000 in damages.

The illegal surgery for buttocks enhancement led to Caro, the victim to die on April 9th. The couple pled guilty to involuntary manslaughter and practicing medicine without a license, and conspiracy. The couple was arrested at McCarran International Airport as they tried to flee to Colombia, where the couple is from.

Tea Light Candles Recalled Due to Fire Hazard

By: Ted Schmidt

Demdaco is recalling approximately 5,480 tea lights in Carruth Candleholder Collection sets. The tea lights pose a potential fire hazard to consumers because they can burn with an excessive flame height. 

The tea lights that were recalled were sold as part of the Carruth Candleholder Collection sets. 

The following eight models and stock numbers are included in this recall: Butterfly, 17708; Smile, 17709; Sun, 17710; Roots of Love, 17711; Sunflower, 17712; Hummingbird, 17713; Bunny, 17714; Friendship, 17715.

Consumers should immediately stop using the tea light candle and contact Demdaco for a free replacement tea light.