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August 25, 2011


The opinion of the court was delivered by: Brown, Judge.


¶ 1 Tana Ryan, individually and on behalf of the Estate of Patrick Ryan ("Tana"), appeals a judgment in favor of San Francisco Peaks Trucking Company, Inc. ("SFP") and its employee Gerald Robert Morgan on Tana's claims for negligence and wrongful death.*fn1 Tana asserts that the court erred by denying her motion for summary judgment regarding SFP's nonparty-at-fault allegations.*fn2 For the following reasons, we affirm.


¶ 2 In April 2002, Tana and her husband, Patrick Ryan, were involved in a vehicle collision with Morgan, who was driving a semi-tractor-trailer owned by SFP. Patrick was driving a motorcycle; Tana was his passenger. Patrick and Tana were both injured in the collision, and Patrick later died from his injuries.

¶ 3 In April 2004, Tana sued SFP, alleging negligence and wrongful death. Tana's complaint also alleged claims for negligence and wrongful death against John and Emily Zboncak, who were also involved in the accident in a separate vehicle. A year later, Tana filed a separate lawsuit against certain medical facilities and professionals involved in Patrick's post-accident care, alleging claims for medical malpractice, negligence, abuse of a vulnerable adult, and wrongful death. The two cases were consolidated in the trial court.

¶ 4 Tana served her initial disclosure statement in April 2006, explaining in substantial detail the factual and legal grounds supporting her claims against the entities and individuals who had provided medical care to Patrick following the accident.*fn3 Tana asserted that two of the medical facilities, St. Joseph's Hospital and Select Specialty Hospital, were negligent in failing, inter alia, to prepare a proper care plan, institute proper infection control, and conduct proper nursing assessments. Tana also included detailed explanations about alleged negligent handling and care of Patrick's feeding tube. Finally, Tana asserted that those who provided medical treatment to Patrick failed to exercise the degree of skill and care expected of a reasonable and prudent medical provider, and that as a result of such failures Patrick suffered abuse, neglect, malnutrition, dehydration, and premature death. The disclosure statement identified two expert witnesses, Bruce Ragsdale, M.D., and Suzanne Frederick, R.N., each of whom had prepared a preliminary expert opinion affidavit. Copies of the affidavits apparently were not provided with the disclosure statement, but the disclosure statement included essentially a verbatim summary of the affidavits.

¶ 5 In March 2007, Tana disclosed two more expert witnesses, Sara Tabby, M.D., and Michael Foley, M.D., and served their preliminary expert opinion affidavits along with the affidavits prepared by Ragsdale and Frederick. In general, the four experts opined that medical personnel acted negligently in failing to properly care for Patrick's feeding tube.

¶ 6 In September 2007, Tana reached settlement agreements with St. Joseph's and Select Specialty, and dismissed the remaining defendants with prejudice. Tana also served a supplemental disclosure statement indicating that she was withdrawing her medical experts as trial witnesses.

¶ 7 A short time later, SFP filed a notice identifying the dismissed defendants as nonparties at fault, alleging they were negligent for "the reasons set forth in Plaintiffs' pleadings, disclosure statements, discovery documents and expert opinions."*fn4 In support of its nonparty-at-fault allegations, SFP indicated that it intended to call Tana's experts to testify in person at trial and by way of deposition, and asserted it also would rely on Tana's pleadings, disclosure statements, and discovery documents as admissions.

¶ 8 In response, Tana argued SFP could not use her pleadings and disclosure statements as affirmative evidence to satisfy its burden of proving its nonparty-at-fault allegations. She further asserted that the expert witnesses she had designated to testify against the dismissed defendants were protected by the work product privilege and could not be compelled to testify for SFP. The trial court ruled that SFP could use Tana's "experts and evidence/admissions by a party," but clarified that SFP could rely on Tana's experts only if those experts' opinions had been disclosed through a "report, disclosure statement, responses to discovery or testimony." The court therefore ruled that SFP could not compel testimony or further evidence from Tana's experts, but could rely on any expert testimony previously disclosed.

¶ 9 In January 2008, Tana sought an order clarifying that SFP could not depose Frederick, Tana's nursing expert. The court ruled that SFP could use any expert opinion evidence that Tana disclosed before she withdrew Frederick as a testifying expert, but that SFP could not depose Frederick.

¶ 10 In October 2008, Tana moved for summary judgment, arguing that because SFP lacked a medical expert, it could not present a prima facie case of negligence against the nonparties. Tana also asserted that SFP could not rely on her expert disclosure statements and preliminary expert affidavits as prima facie evidence in support of SFP's nonparty-at-fault allegations. SFP moved to strike the motion on the grounds that it was simply a motion to reconsider the court's earlier ruling. The trial court granted the motion to strike, noting that it had previously addressed the issues raised in the motion. The court confirmed that SFP could use Tana's "experts and evidence/admissions" to support its nonparty-at-fault allegations, but could rely on Tana's expert opinion evidence only if that evidence had been disclosed through a disclosure statement, responses to discovery, or testimony. Additionally, the court found that SFP could use "[Tana's] experts and evidence/admissions by a party ... to satisfy a requirement that [SFP] has expert witnesses to support its defense." The court thus effectively ruled that SFP could rely on Tana's expert disclosure statements and preliminary expert affidavits as prima facie evidence of its nonparty-at-fault allegations.

¶ 11 At the final pretrial conference, over Tana's objection, the court admitted in evidence copies of Tana's complaint, disclosure statements, and preliminary expert opinion affidavits as admissions by a party-opponent. At trial, SFP cross-examined Tana regarding her prior allegations against the dismissed defendants, as contained in her complaint and preliminary expert affidavits. The jury was instructed on comparative fault, but returned a general verdict in favor of SFP. This timely appeal followed.


I. Admissibility of Disclosure Statements

¶ 12 Tana asserts that the trial court erred when it determined that her disclosure statements were admissible as admissions by a party-opponent pursuant to Arizona Rule of Evidence ("Rule") 801(d)(2).*fn5 "We review evidentiary rulings for an abuse of discretion and generally affirm a trial court's admission or exclusion of evidence absent a clear abuse or legal error and resulting prejudice." John C. ...

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