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

DEADLINE FOR FILING MOTION FOR NEW TRIAL NOT TRIGGERED UNTIL FINAL APPEALABLE JUDGMENT ENTERED/DEFENDANT'S MEDICAL EXPERT MAY BE ASKED ABOUT PERSONAL PRACTICES

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.