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Medical Malpractice Expert May Be Asked About Personal Practices/Deadline to File Motion For New Trial/Final Appealable Judgment

Posted by Ted A. Schmidt | Sep 25, 2015 | 0 Comments

Jaynes v. McConnell, 721 Ariz. Adv. Rep. 20 (App. Div. I, September 15, 2015) (J. Gemmill)


Plaintiff sued her colorectal surgeons for negligence in the evaluation, diagnosis and treatment of a cyst. She obtained a $3.7 million verdict, the jury assessing 75% fault against surgeon Goldberg, 0% against surgeon McConnell and 25% fault against the plaintiff.  Plaintiff's motion for new trial against the McConnell claiming critical expert testimony was wrongfully excluded was denied as untimely and on substantive grounds. The Arizona Court of Appeals vacated and remanded.

The motion for new trial was filed within 15 days of the final appealable judgment being entered and was therefore timely.  A previous non final order did not trigger the deadline.  

Plaintiff claimed that the defendant McConnell was negligent in failing to call and point out to defendant Goldberg a change in the appearance of the lesion on ultrasound when he first saw it.  McConnell's expert testified in deposition that it would have been his personal practice to make such a call but that the standard of care didn't require it. At trial plaintiff was not permitted to cross exam McConnell's expert so as to establish this was his personal practice. The trial court's exclusion of this personal practice testimony was error. The jury was permitted to consider this evidence both on the question of what the standard of care actually required and on the issue of the expert's credibility.  

About the Author

Ted A. Schmidt

Ted's early career as a trial attorney began on the other side of the fence, in the offices of a major insurance defense firm. It was there that Ted acquired the experience, the skills and the special insight into defense strategy that have served him so well in the field of personal injury law. Notable among his successful verdicts was the landmark Sparks vs. Republic National Life Insurance Company case, a $4.5 million award to Ted's client. To this day, it is the defining case for insurance bad faith, and yet it is only one of several other multi-million dollar jury judgments won by Ted during his career. He is certified by the State Bar of Arizona as a specialist in "wrongful death and bodily injury litigation".


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