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In re Conservatorship for Hardt

Court of Appeals of Arizona, First Division

May 30, 2017

In re the Matter of the Conservatorship for: CATHIE HARDT, An Adult.
v.
AZHH, LLC, an Arizona limited liability company formerly known as Arizona Heart Hospital, LLC, Defendant/Appellee. LORRIE NEVENS, Special Conservator for Cathie Hardt, on behalf of Cathie Hardt; LORRIE NEVENS; and JEFFREY NEVENS, Plaintiffs/Appellants,

         Appeal from the Superior Court in Maricopa County No. PB 2009-002468 The Honorable Edward W. Bassett, Judge

          Solomon & Relihan, PC, Phoenix By Martin J. Solomon, Kevin J. McAlonan Co-Counsel for Plaintiffs/Appellants

          The Breslo Law Firm, LLC, Scottsdale By John C. Breslo Co-Counsel for Plaintiffs/Appellants

          Lewis Brisbois Bisgaard & Smith, LLP, Phoenix By James K. Kloss Counsel for Defendant/Appellee

          Lewis Brisbois Bisgaard & Smith, LLP, Atlanta, GA By Joelle C. Sharman Pro Hac Vice Counsel for Defendant/Appellee

          Judge Margaret H. Downie delivered the opinion of the Court, in which Presiding Judge Diane M. Johnsen and Judge John C. Gemmill[1] joined.

          OPINION

          DOWNIE, Judge.

         ¶1 Cathie Hardt and Lorrie Nevens (collectively, "Appellants") appeal a final judgment entered after a jury trial that resulted in a defense verdict.[2] Because we conclude the superior court improperly precluded Appellants' rebuttal causation expert as "duplicative, " and Appellants have demonstrated resulting prejudice, we reverse and remand for a new trial.

         FACTS AND PROCEDURAL HISTORY

         ¶2 Hardt was admitted to the Arizona Heart Hospital ("AZHH") in the early morning hours of August 25, 2008 with "complete occlusion of the distal aorta at its bifurcation, which presented as pulseless lower extremities." She was deemed a "high-risk" patient at risk of death without removal of the blockage. Hardt underwent surgery at AZHH that same morning.

         ¶3 On August 27, AZHH staff documented the presence of Stage I and II ulcers on Hardt's back and sacral/coccyx area. By September 9, 2008, the ulcers had progressed to Stage III, and upon discharge from AZHH on September 18, 2008 to Heartstone Hospital-Mesa, LLC, dba Trillium Specialty Hospital-East Valley ("Trillium"), Hardt had a Stage IV ulcer.

         ¶4 Appellants sued AZHH and Trillium, alleging Hardt was a vulnerable adult who developed "avoidable pressure ulcers due to substandard nursing care, negligence, abuse, and neglect." The court ordered the claims against Trillium arbitrated, but the lawsuit against AZHH proceeded.

         ¶5 After a nine-day trial, the jury returned a verdict in favor of AZHH. Appellants unsuccessfully moved for a new trial pursuant to Arizona Rule of Civil Procedure ("Rule") 59. After the superior court issued its final judgment, Appellants timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) and -2101(A)(5)(a).

         DISCUSSION

         I.Preclusion of Appellants' ...


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