Sanders v FC Compassus CR2 04 10 25 CV24 0419

Estimated read time: 1:20

Summary

In this riveting court session held by the Arizona Court of Appeals Div. 1, the case of Sanders v FC Compassus was discussed intensely. The central issues revolved around the exclusion of key contract documents and regulations that could have influenced the jury's decision, as well as the refusal to allow additional rebuttal time for the appellant. The judge's decision to hold strict time allocations played a crucial role, possibly affecting the fairness and outcome of the trial.

Highlights

The court session highlighted the exclusion of contract documents and regulations that might have affected the jury's understanding. 📁
There was an argument over whether experts' credibility can be bolstered or impeached by presenting contractual and regulatory documents. 📜
The trial faced issues with time management, impacting the ability to present a full rebuttal case. ⏱️
Lawyers discussed whether regulations or contracts can establish the standard of care in medical malpractice cases. 🏥
The judge's adherence to time limits was challenged, stating it compromised the trial's fairness. ⚖️

Key Takeaways

The importance of including complete and unredacted documents as evidence was emphasized. 📄
Strict adherence to time limits can sometimes hinder the presentation of a complete case. 🕒
The debate on whether contractual obligations can inform or establish the standard of care. 🤝
Distinguishing between informing and establishing a standard of care is crucial in trials. 🔍
Judges must balance fairness with time management during trials. ⚖️

Overview

The court case Sanders v FC Compassus delved into procedural and evidentiary disputes that could affect the outcome of legal proceedings. The session opened with discussions on time allocations and the exclusion of potentially pivotal documents from being presented to the jury, fostering an intense debate on the effectiveness and fairness of these decisions.

The appellant's counsel argued that the exclusion of regulations, contracts, and policy documents severely undermined their ability to make a strong case, while the defense pointed to the potential for these documents to confuse rather than clarify the issues at hand. This session exemplified the complexity of differentiating between documents that inform, establish, or simply comply with standard care, especially in medical scenarios.

Despite attempts for a rebuttal, the appellant was denied further time, leading to objections regarding fairness and proper trial procedure. This case serves as a prime example of how procedural decisions and evidentiary rules intersect, potentially influencing the justice process. The court's final decision remains pending, leaving the parties and onlookers anticipating the implications of this trial.

Chapters

00:00 - 00:30: Session Opening The chapter titled 'Session Opening' begins with the session of the court of appeals, division one, being called to order. The presiding judge instructs attendees that they may be seated, marking the official start of the proceedings. The date is noted as April 10th, 2025. The purpose of the gathering is an oral argument for the case numbered CACB 240419, titled Sanders versus FC Compassis. The judge ensures correct pronunciation of the case title, indicating attentiveness and respect toward the involved parties.
00:30 - 01:00: Oral Argument Introduction The chapter titled 'Oral Argument Introduction' summarizes the courtroom procedures for oral arguments. Each side is given 20 minutes, with the option for the appellant to reserve time for a rebuttal. The entire session is live-streamed, and participants are reminded to manage their time and speak clearly into the microphone, stating their names for the record.
01:00 - 14:00: Plaintiff's Presentation - John Brelo The chapter titled 'Plaintiff's Presentation - John Brelo' begins with instructions to the presenter, John Brelo, reminding him that the panel has already reviewed the briefs, studied the record, and discussed the case. John Brelo, representing the plaintiff and appellant, commences his presentation. He relates that the case stems from a defense verdict at trial concerning the provision of hospice services under strict conditions.
19:00 - 39:30: Defendant's Presentation - Kelly Jianitis The chapter discusses the defendant's presentation, focusing on the provision of hospice services. According to the regulations, hospice providers are required to offer a respite benefit in inpatient settings as part of their services. However, in the case discussed, the hospice did not provide this service directly. Instead, it contracted with an external entity, known as the Marley House, to fulfill this requirement, which was allowed under the current regulations. The presentation highlights the complexities and divisions in the healthcare system, notably in how services are outsourced to meet regulatory standards.
39:30 - 42:00: Rebuttal by Plaintiff's Counsel This chapter, titled 'Rebuttal by Plaintiff's Counsel,' revolves around the trial focusing on the relationship between a hospice and the Marley House concerning services provided to a client named Bob Sanders during a 5-day inpatient respite care. The counsel highlights two main issues: the exclusion of the contract, regulations, standards, and the policies and procedures that should be demonstrated to the jury.

Sanders v FC Compassus CR2 04 10 25 CV24 0419 Transcription

00:00 - 00:30 all the court of appeals division one is now in session you may be seated good morning today is April 10th 2025 this is the time step for oral argument in our case number CACB 240419 Sanders versus FC Compassis am I saying that correctly um out of respect for our council and to avoid any
00:30 - 01:00 embarrassment for anyone in attendance in the courtroom please make sure that your cell phone is on silent each side is allocated 20 minutes for oral argument although you are not required to use all your time if appellent wishes to reserve a portion of that time for rebuttal you're free to do so but you need to keep track of your own time at the podium and the clock reflects your total remaining minutes these proceedings are being livereamed and will be available on our website for viewing with that in mind please make sure to speak into the microphone when presenting and please um state your name
01:00 - 01:30 before you start presenting please keep in mind that we have read the briefs studied the record and discuss the case in conference so please keep in mind as you present your case you may proceed good morning to the panel my name is John Brelo i represent the plaintiff and appellant uh in this case which arose from a defense verdict uh at trial in a case involving uh the provision of hospice services under very strict uh
01:30 - 02:00 regulations policies and procedures uh and a contract uh there were twoos there were uh hospice providers must provide a respit benefit uh inatient as part of providing hospice services uh and in our uh day of siloed and and diverse uh health care in this in this country um hospice in this case didn't provide that service so it contracted which it was permitted to do by regulation uh to a entity called the Marley House and so
02:00 - 02:30 this entire trial was over the relationship between hospice and the Marley House in providing services to my client Bob Sanders who was in inpatient 5-day respbit care uh at the facility um and um almost uh the issue the two issues that I'm going to focus on uh today are one the exclusion of the contract the regulations and the standard and and the uh policies and procedures that demonstrate to the jury
02:30 - 03:00 the relationship between these two entities so they could understand what services were supposed to be provided and who was supposed to be providing them uh and also uh the issue of the exclusion of a rebuttal case uh for uh the appellant on the grounds that the time limits uh had been violated so those are the two issues that I'm going to focus on what I want to start with um is uh h is the opening statements um hospice of the valley in opening
03:00 - 03:30 statement said the goal of hospice is pretty straightforward to keep the patient as comfortable as possible during the dying process that's what they said hospice was the Marley House the respit provider said respit care is different from hospice care and it is when the facility stepped into the shoes of the patient's caregiver well the patient's caregiver was Mr sanders wife okay she was not a licensed health care professional she was not trained in any manner so in opening statement you had
03:30 - 04:00 hospice saying "Hey all we do is keep them comfortable till we die." And Marley House saying "All we do is the same thing that the caregiver provides." Well that was contradicted by a tremendous amount of evidence in this case that the jury never saw three pieces one are the regulations uh the hospice regulations that define the role of the hospice provider and all the things that it are supposed to do the second was the contract between hospice and the Marley House that proscribed what hospice was going
04:00 - 04:30 to do what the facility Marley House was going to do and what they were going to do jointly and that is described in tremendous detail in 10 pages of a contract that was redacted from the exhibit and withheld from the jury in this case for for no articulable reason that that that I've been able to ascertain and we're going to talk about how that became prejuditial uh to the plaintiff uh later um so council excuse me for cutting you off but it seems to
04:30 - 05:00 me that you had a lot of standard of care experts in this case true they all and they all testified about what eachbody's everybody's role was and that's I'm at a loss to see why these things are material okay and and I'm glad you asked that question because that is the that is the medical malpractice defense orthodoxy that they want to live in right all medical malpractice cases are are my standard of care expert who's a paid expert versus
05:00 - 05:30 your standard of care expert who's a paid expert and guess who's going to lose that case it's going to be the plaintiff because we bear the burden of proof they get to have their provider also testify that they met the standard of care and we don't and so what do we have in defense we have documents that contradict that documents that impeach that standard of care testimony and there was nothing that precluded you from impeaching their standard of care expert with these documents absolutely absolutely we were procluded we were procluded the contract was not admitted
05:30 - 06:00 into evidence that's not my question my question is you could ask the doc their standard of care expert isn't it true XYZ isn't it true XYZ as far as regulations go we could not introduce the regulations weren't you able to show them we were not we were not we were not able to show them the regulations we were not able to show them the contract we were not able uh to show them the policies and procedures that contradicted the testimony i mean I asked and it's not just impeachment it's also bolstering my own expert who comes
06:00 - 06:30 from out of state because instate nurses won't testify against these facilities and so they're subject to impeachment for those grounds i try to bolster my own experts opinions with the policies and procedures of the facility and I tried to do that and the court shut me down and said no you can't do that you can't show them their own policy and procedure even though even though the regulations say they have to have policies and procedures the contract said they have to have policies and procedures that conform to the standard of care and and let me say to that let me read you
06:30 - 07:00 that let me do this first in closing argument In closing argument Marley House said this the same is true for plaintiff's argument regarding the joint plan of care nowhere in any of the documents shown to you throughout this trial that has been admitted into evidence does it indicate that a joint plan of care for respbit needs to be in
07:00 - 07:30 writing nowhere does it require that a joint plan of care be reduced to writing that's what they said in closing argument well when we go to the document that was ex excluded from evidence the contract between these two providers it says hospice and facility each shall maintain a copy of each patients joint plan of care in the respective clinical records maintained by each party so and I warned the trial court of this during the trial i said
07:30 - 08:00 "Judge you're allowing them to concoct a defense that I cannot rebut i cannot impeach them with the language of the contract that says "No you have to have a joint plan of care and writing." They were free to get up in closing argument and say "You didn't have to you didn't have to do that." So council you're losing me a little bit the contract is the service agreement service agreement correct between who between hospice and the Marley House so they because hospice didn't have its own respbit service they
08:00 - 08:30 can they are permitted to contract with the Marley House who provides a respbit service but the relationship between those two and who was going to do what is described in that services agreement and that services agreement was heavily redacted by the trial court and eliminated about 8 to 10 pages of those responsibilities and so the defendants in this case were able to get up in closing argument and say uh all hospice all we do in hospice is is take care of people when they're dying and make them
08:30 - 09:00 comfortable and Marley House was get up was able to get up and say "All we do is provide the services that a caregiver would provide." And then you look at the agreement and that's not what it says at all and we could not impeach their witnesses or bolster the testimony of our own experts with those documents and so sure judge our expert could say they breached the standard of care and their expert could say they didn't breach the standard of care but we have you know
09:00 - 09:30 I'm I'm at a loss because when I was reviewing this record in the briefs I I remember that there were they said you can present it to the expert and allow them to read it just silently you just can't read it to the uh you can't read it out loud that may have been true with the regulations but it certainly wasn't true with the service agreement and and this agreement came in in part came in in part correct so which portions are the were the most were egregiously left out yes so that's it's
09:30 - 10:00 um trial exhibit 53 is the document that was profered by the plaintiff and if you look at pages seven 7 through 16 all of those pages were redacted out from the jury and and just the fact that it's nine pages will tell you that hospice must be doing something
10:00 - 10:30 more than just keeping patients comfortable and Marley House must be doing something more uh than just what the caregiver would do and sure enough when you read all those responsibilities I mean they are enumerated over and over again in the nine pages one of which says that I just pointed to says you have to have a joint plan of care in writing because there was no joint plan of care but they were able to say to the jury and in defense of this case oh we had a joint plan of care it's just not required to be put in writing so we did
10:30 - 11:00 all the things that we were supposed to do under the regulations um and and we couldn't impeach that with the language of the services agreement that says it has to be in writing but were they supposed to keep um and and have it be in line with the regulations or were they supposed to have it in line with the contract i'm a little confused yeah so let let's talk about um let's talk about the policies and procedures so there is a provision in
11:00 - 11:30 the contract the services agreement this is 3.2.8 facilities shall institute and implement the facilities the Marley House and maintain administrative policies and procedures and patient care protocols that are in accordance with recognized professional standards of care and necessary to implement the improve the provisions of this agreement so they had a they had an agreement between the two of them that they would have policies and procedures that complied with the standard of care when
11:30 - 12:00 we get to trial I don't and and I want to rely on the policies and procedures that they themselves say have to comply with the standard of care to bolster the the standard of care to to support my experts testimony or to cross-examine their experts and the court says "No you can't do that all we're going to have is a battle of the experts you can't use the agreement between the two of them that says they have to comply with the standard of care." I can't win that case and it happened again with the
12:00 - 12:30 regulations we we profered a 30B6 deposition of of Caitlyn Vic and we said did the contract by which Bob Sanders was admitted to the Marley House for inpatient respit care require Marley House and hospice compasses to jointly coordinate and modify the place patients joint plan of care to take into account any changes in the patient's condition she says yes that's what the regulation requires that's reading from the regulation the
12:30 - 13:00 court excluded that testimony at trial the jury was left with no concrete evidence that they had knew and should have been following the regulations the services agreement and their own policies and procedures so they were left to just make stuff up which is what they did they got up in closing argument and made stuff up they said "We don't have to have a written joint plan of care." And I'm just using it as an example when they had an agreement that they were going to so you can see the prejudice that flowed from that the the
13:00 - 13:30 other huge prejudice was the judge uh came up with this time allocation 40% for the plaintiff 3030 based on on one sole reason right we have a limited time to try cases in Arizona this is how we're going to divvy it up and follow it so what happens we get into trial and uh our time runs out and they start their case and they
13:30 - 14:00 adjourn after like one witness in the afternoon and there's an hour and a half left in the afternoon and we say judge please let us call our rebuttal expert i mean it's a substantive due process right for rebuttal there's no time limitation anymore so if that were the rationale for limiting our case that rationale is gone and the judge arbitrarily and capricciously says "No you ran out of time you know no you're out of luck and we're deprived of rebuttal case." And we know from the
14:00 - 14:30 heart decision that there's a substantive due process right to rebut the testimony there was a profer is exactly what that witness was going to say it was Dr henman a toxicologist to rebut their toxicologist and sure enough what happens when we get into uh closing argument they say "We called the right doctor you never heard them call a toxicologist." And so and it there was simply no reason to have precluded us from calling the toxicologist
14:30 - 15:00 so you had an inability to cross-examine witnesses based on the regulations based on the services agreement their own services agreement i mean there's there's no dispute as to what it was and what it prescribed and it prescribed let me try to give you one more example they said uh in closing they said uh plaintiff has attempted to argue
15:00 - 15:30 that the standard of care required Marley House to reach out directly and talk to Mr sanders Sanders hospice provider directly when you go when you go to the agreement and they were they were suggesting I was wrong i didn't know what I was talking about there's no requirement of communication well 3.2.3 2.3 under the facility responsibilities which is the Marley House PA facility and hospice shall
15:30 - 16:00 inform each patient of the room and board services and or inpatient services to be provided by the facility and of any changes in such services so changes of condition had to be reported by the Marley House to either Mr sanders or in this case his wife because she was her she was the the power of attorney over his decision-making and so they were permitted over and over and over to make up a defense that wasn't supported by documents that I was procluded from using at the time of trial and
16:00 - 16:30 um there's there is last one with respect to um with respect to uh the policies and procedures there's a there's a policy and procedure u in the record and I we were trying to I was trying to ask my expert u it's it's the capacis bill of rights and in the capacitus bill of rights it says that you have will communicate changes of condition and if they need medication you'll inform them
16:30 - 17:00 of alternatives etc and they said they had no responsibility to do that and when I tried to ask my expert is do do you comply with the standard of care by following the regula by following this policy and procedure i was shut down and I she wasn't allowed to answer that so to answer your question your honor she was able to state her standard of care opinions the question is is anybody going to believe her she's a paid out ofstate expert when her testimony could have been corroborated
17:00 - 17:30 by the their own policies and procedures i mean or or the services agreement or the regulations and to take that tool away from the plaintiffs I mean how would how is that possibly fair i mean we we we we dealt with this issue in the Smother's case did standard of care refute that proposition i'm sorry did their standard of care expert refute the proposition oh yeah they said there was no duty to to their their standard of care expert said there was no obligation to alert or communicate right right
17:30 - 18:00 right they said we're here to provide comfort care and we're providing comfort care and he needed all these medications and so we gave them to him and kept it com kept him comfortable so um this battle of the expert issue has to be resolved and and and we figured out common sense in the Smother's case and the Jane's case and that before those before those two cases you could not ask an expert uh okay you you testified at the standard of care but do you do that in your own practice well I
18:00 - 18:30 don't know i wouldn't I would never do it that way and and and we precluded that testimony until we appreciated the fact that common sense dictates that just allowing a paid expert to come in and say something say that a doctor met the standard of care when the testifying expert doesn't do it that way himself how can we possibly keep that evidence from the jury and so we fix that problem we have the James case we have the Smother's case and all I'm asking this court if if if the court would indulge me to to look at two cases it's it's
18:30 - 19:00 Smothers and Janes and if you applied the logic of those two cases to the to the services agreement to the policies and procedures and to the regulations you you'd have the same outcome the plaintiff was denied the opportunity of a fair trial by using these documents just like using the doctor's own practices and smothers uh to to convince a jury that m you know uh uh maybe what their expert saying isn't true or maybe the plaintiff's expert who's being paid
19:00 - 19:30 to come in from out of state is speaking the truth because what she's saying is corroborated by this other evidence um so with that I will reserve uh two minutes uh unless there are any additional questions good morning your honors Kelly Jianitis and I'm here with Rita Butos collectively we represent the defendants and appalles in this case um we
19:30 - 20:00 submitted a joint brief and I'll be providing the argument today i'm happy to talk about the services agreement and the rules and regulations unless you had something else you were interested in okay pliff seemingly agrees that they did have an opportunity to ask questions about the policies and regulations what they don't address are the trial court's determinations that this evidence wasn't um was cumulative
20:00 - 20:30 and confusing in in connection with the standard of care evidence the question in this case is what did the standard of care require and nothing prevented the pliff from asking their experts outright what did the standard of care require did the standard of care require for this to be in writing you know and was that consistent with the policies and procedures but that's not the questions that were asked and part a big part of this case is that the questions were asked in an objectionable
20:30 - 21:00 way which is set out in the briefs in the long section about all of the objections that were sustained as to the standard of care arguments there's no dispute that policies regulations and contracts don't set the standard of care they can inform the standard of care and that's something that can be introduced with your experts testimony um Smothers is not controlling here i mean it sounds like from the reply brief and the argument today that the real issue is one of credibility of experts council
21:00 - 21:30 help me understand what's the difference between informing the standard of care and establishing the standard of care i think that impeaching the standard of care sure i think that the difference between setting and informing is that you still have to have an expert to say you know this document says X Y and Z and that's consistent with the standard of care impeaching the standard of care um would be just like happened in Smothers
21:30 - 22:00 where your expert says well the standard of care requires X Y and Z but I don't do that well but if your if and we'll go with the written part if if your expert says you don't need a written agreement but there the contract says you do need a written agreement or the regulation says you do need a written agreement why wouldn't that be typical impeachment evidence well just to be
22:00 - 22:30 specific in this case the regulation says you don't need a written agreement um it's just the contract that that says that a written agreement is required but parties don't contract for the standard of care they can contract for something more than the standard of care why wouldn't that be relevant for the jury to hear that i mean if you're if one side's telling the other side we don't have to do this and then there's an agreement that says "Oh yes you do that seems contradictory to me
22:30 - 23:00 because the the people themselves don't set the standard of care these nurses don't don't get to say in a contract this is what we I I understand it doesn't set it but it can certainly why couldn't the service agreement inform the standard of care or if if it said that you need to have a a joint care plan I mean in writing well it doesn't inform the standard of care because this is just an agreement
23:00 - 23:30 between two private parties in Arizona the standard of care for me you're saying it's not even relevant i don't think that it's even relevant and it's certainly cumulative to the evidence that was already presented because the standard of care is what a reasonable person would do under similar circumstances in the community and one example of what one person has decided amongst themselves that they're going to do doesn't have anything to do with the standard of care if the if the if the contract says on Thursdays we're going
23:30 - 24:00 to address lake clowns then that doesn't set a standard of care related to clowns and can you imagine if there was testimony from my client that well we didn't feed Mr sanders but we did dress like clowns on Thursday that's not relevant and the reverse is true well you're saying that you did meet the standard of care that is set in the community by these experts but I didn't see a clown costume on Thursdays like it doesn't matter what these two people have contracted to do what matters is
24:00 - 24:30 what the standard of care is of a reasonable person from I'll say the 30,000 foot view so the services agreement is not relevant and it's confusing when considered in the context of kind of this 30,000 foot view of standard of care and what is allegedly happening here and that's what the jury heard is they heard well what happened here and what does the standard of care require you're throwing in all of this
24:30 - 25:00 other details about stuff that isn't in the standard of care and um and that's confusing and it's cumulative to what your standard of care experts have testified to and it's not relevant to the credibility of the expert in the way that Smethers is because that expert in Smothers is saying I the standard of care requires you to do it this way but I do something different suggesting that they're not following the standard of care that's
25:00 - 25:30 that's totally relevant but in this case it's those things aren't what about regulations because I I understand the written agreement part if you're doing what would in be in a written agreement the fact it's in writing or not writing seems pretty innocuous to me but regulations set forth what someone is supposed to do isn't that more particularly relevant when you're addressing standard of care i do think that the regulations are relevant but introducing them in writing like to the
25:30 - 26:00 jury is not necessary and that's what the trial court held here the trial court did let them talk about regulations they did let them ask questions about whether it informs the standard of care when presented the regulations to the expert let them read it that kind of stuff right but when the plaintiff's council tried to cross that line and say "Well this sets the standard of care," that's when the trial court reigned it in so there were so the jury was not able to see what the actual regulations actually were the regulations were not admitted in evidence correct what if there was a
26:00 - 26:30 statute a single statute just directly on point that addresses what should happen in a particular uh care home how would that not be particularly relevant for the jury to have i think that your argument in that case is that there's a negligence per se and so the statute comes in just to say but but statutes don't only I don't know if you're around for our previous argument
26:30 - 27:00 we talked a lot about it brilliant negligence per se and also talking about there's two there's two tiers you can have negligence per se but you can also just have a statute which is relevant relevant evidence and so I don't I'm struggling to see how that those aren't that's not relevant evidence including the like the patient i mean yeah these regulations why are they not relevant evidence that a jury could take back to the jury room and peruse i do think that they're they're relevant um but what that's a different
27:00 - 27:30 question to whether they need to be admitted and the trial court judge here exercised this discretion and determined that the the evidence that was presented verbally was sufficient and then submitting the regulations was cumulative and would be confusing to them when the regulations don't set the standard see I'm a little So just so I and I'll go back and rere the testimony in this area as much as I can but so you want to impeach and we'll use it the other way
27:30 - 28:00 you want to impeach their standard of care expert how do you do that without saying isn't it true expert that the regulation says whatever which is contrary to your position that is not a question that was asked okay so they never That's my recollection okay well all right but if it if that what I mean that is how you would typically do that is impeach the expert with the regulation
28:00 - 28:30 by saying "Isn't it true that the regulation says X Y or Z?" Yes okay well okay but here read the regulation how does that import import to the jury what you're trying attempting to impeach them yeah so a lot of the issues in this case are the way that the questions were worded and whether they were attempting to set the standard of care with the regulation as opposed to using it to inform the standard of care and those
28:30 - 29:00 have to be looked at on a case-by case basis um and with regard to these evidentiary challenges the standard of review is really critical this isn't a case where they weren't allowed to ask any questions about policies or regulations some came in some questions didn't on both sides um and you defer to the trial court on that the trial court gets the benefit of close calls um and there's no apples to apples comparison there's a big deal made in the brief about uh the alleged
29:00 - 29:30 um different standard that the court applied but you can't look at the record and and make that determination because these questions aren't exactly the same uh the questions are different the context is different the the roles of the testifying witnesses are different um in each case you have to view the circumstances in the light most favorable to sustaining the ruling and
29:30 - 30:00 if it could go either way then you defer to the trial court i can't help when I was preparing drawing parallels between um you know this kind of argument and my own kids because everything relates to your kids when you have kids um they're teenagers and they play basketball and they're jerks and they watch the NBA and they spend all of the game h at the refs because they never foul anybody and everybody always fouls them and it never gets called but they have a jerk mom who's also loud and every time will yell out
30:00 - 30:30 to them "Put your hands down and play the game." Because the refs are just like judges they don't see it from where you're from the perspective necessarily that the litigants do they see it from over there or up here possibly they see it without emotion and they make the call like they see it and you have to be able to adjust to those rulings and change the way that you're asking
30:30 - 31:00 questions when the trial court judge has found that to be objectionable and and if you review the transcripts here that is what didn't happen and that I think is the basis of the trial court's ruling that these attorneys didn't manage their time appropriately it didn't have anything to do with whether or not uh people were testifying live or via deposition it didn't have to do with the defense objections and it didn't have to do with some sort of double standard that
31:00 - 31:30 the court was applying can Sorry no are we done with that because I want to ask you about the time i want to talk about whatever you want to talk about the rebuttal so he you you finished early which as a trial judge I used to applaud everybody that would finish early but you finished early but there was an hour and a half left in the day or some around that is that correct i think that's right they wanted to put on an expert rebuttal
31:30 - 32:00 witness did Did your side object my side objected yes and what the basis of the objection would be what you've already used you've rested the basis of the objection is just fairness the court allocated uh time and the plaintists did not use their time efficiently that's what the trial court judge specifically found and the defense attorneys did use their time efficiently
32:00 - 32:30 and there's authority cited in the brief that it's not appropriate to reward people who don't act efficiently just because other people do act efficiently so that again is a decision that the trial court had discretion to make the trial court I think could have granted the request to introduce rebuttal testimony if it wanted to and it wouldn't be reversible error in this case that judge sat in this trial for 9 days and made the opposite decision and that case or that decision is entitled to deference well I but I understand
32:30 - 33:00 time restrictions um and I understand you you have so many days to get a jury to decide a case and all that stuff but if there was an hour and a half left and they were representing it was only going to take 15 minutes from their side i'm assuming that you're very efficient lawyers in the trial would have would not have taken a lot of longer that you could have finished within that hour and a half i mean another important consideration I think
33:00 - 33:30 in the trial court's mind is that they had already given the plainif additional time to do additional things and cross-examine earlier in the trial so this was just another request for more time on top of other requests for more time so you know it's not about how much time it was going to take but then is it fair and I hate I always hated the fair question when I was a litigant um is it fair though to to to allow you to then stand up in in closing and say "Huh you didn't hear you didn't hear the expert
33:30 - 34:00 that we got that we got procluded for time reasons?" Uh yes it is fair okay um it's not any different why am I not surprised by your answer uh it's not any different than having an expert precluded because they're not timely disclosed you you didn't follow the rules and you didn't manage your time to get that expert in and so that evidence didn't come in and then it's fair game to comment on the fact that it
34:00 - 34:30 didn't come in also just just to be clear on the timing the jury did not receive the case until the next day right i'm not sure i think that's right so I mean and and arguments didn't even start then did they i believe they started the day before but I'm not 100% i thought they started the morning the next morning morning the next morning the following morning so that afternoon free time was free time yeah and I think that the trial court judge didn't make its decision on the fact that we don't
34:30 - 35:00 have more time they made its decision the court made its decision on the fact that um you didn't use your time efficiently and I'm not going to reward you for that did the court take into account approximately almost one hour of objection time or 50 some minutes of objection time that issue was raised in the motion for new trial and the trial court with the benefit of hindsight looked at the entire record and still decided that they believe that plaintiff
35:00 - 35:30 got a fair trial on the whole so when they made that when the court made that decision I don't know but certainly after the new trial was ruled on it was something that was taken into consideration but even is isn't that waved i mean shouldn't the if you have an objection to how the the judge is keeping time you make that during the trial not at the end after it's all over with i agree and we did make that argument in our brief as well so I think a more interesting issue
35:30 - 36:00 is this idea that you can be civily liable for endangerment only under the absent statute that is something that was argued in relation to a jury instruction and I just wanted to point the court back to the statute the plain language of 46-455B which is what authorizes the civil claim um reads that I didn't bring it with me of course I thought I was going to be able
36:00 - 36:30 to remember it a vulnerable vulnerable adult whose life or health is being or has been endangered or injured by neglect abuse or exploitation may file an action in superior court um the plaintiffs want you to read that as as saying that you can bring a claim if there's end if the if the vulnerable adult is endangered or injured but there's a qualifier there by neglect abuse or exploitation so the statute reads injured by abuse that's the only one at issue here or excuse me endangered by
36:30 - 37:00 abuse or injured by abuse and abuse is defined to include an injury in 46451 so whether the adult is endangered which I think is a forward-looking word as opposed to injured which is backward-looking when those words are modified by abuse then there's an element of injury in that and so that's exactly what the Arizona Supreme Court held in Delgato which was also an abu abuse case and any doubt in that regard
37:00 - 37:30 is resolved if you look at subsection A of 46455 which is the criminal liability portion of the statute makes it a class 5 felony for anyone who causes or allows the life of the adult to be endangered and or causes or allows the person's health to be injured or endangered by neglect so if the court wanted to allow civil claims based solely on endangerment
37:30 - 38:00 could have used the same language it used in A but it didn't it used different language in B because it meant something different just like most civil claims you have to have an injury to be able to assert a claim in this case so the jury instructions were correct how does allow relate to the the second part it's cause or allow allow seems to be very broad it does um and this is in the criminal section where it talks about cause or
38:00 - 38:30 allow and I think that because um the criminal section talks about guardians and conservators specifically they're um in a different kind of class than healthcare providers where you have control more control over the vulnerable adult and and who has access to them or not and if you're the guardian of somebody and you allow someone else to abuse them then you're going to be held in the held at the same culpability it
38:30 - 39:00 seems to me that like take this scenario he was in the control of the providers right yes and allow well thankfully we're not under subsection A nor was there an objection to the instruction yeah and I'm not sure whether we'd qualify as a de facto guardian maybe um the civil section says that the person has to be endangered or
39:00 - 39:30 injured by neglect abuse or exploitation so hopefully that issue will come up in a different case and I can argue it in front of you some other time thank you for your time we ask that the jury verdict be affirmed thank you to answer your question the the case did not go to the jury any sooner as a result of this one and a half period time that the the jury was simply
39:30 - 40:00 adjourned for that hour and a half period of time there was absolutely no rational basis to hold us to the time limits and that that presumes that the time limits were accurate and I I understand the court's concern that well isn't it a waiver it's the judge that chose to use time as the reason to preclude us from an essential element of the case and if he did it incorrectly based on untrue facts Fowler says that's an abuse of discretion so he there was no reason to
40:00 - 40:30 impose the time limits when time was no longer a factor so that's just not an adequate basis to deprive us of a of a substantive right um I wanted to address just quickly um Judge Brown um your issue about inform and um not only does policies and procedures and and regulations and contracts inform the standard of care uh and that that's specifically the Shepherd case that um
40:30 - 41:00 the uh policies in that case informed the standard of care but we have the Winhurst case a 2025 case uh in a in a medical malpractice context that said the CMS regulations form can form the standard of care not just inform the standard of care but form the standard of care and and so to to as you suggested judge to just allow them to be referenced without the jury seeing the contents of them or seeing the contents of the contract between these two entities and what they what they agreed
41:00 - 41:30 to uh it it's impossible under that scenario this this discussion about a three a 30,000 foot view of standard of care that may be fine for them i didn't want a 30,000 foot view of the standard of care and so why wasn't I entitled to zoom in on the standard of care and show documents that impeached their credibility and show documents that supported my uh uh experts uh uh testimony regarding the standard of care for those reasons uh we request uh that
41:30 - 42:00 the uh trial court's uh decision be overturned and we be remanded for a new trial thank you thank you council for your presentation today we appreciate your briefing and we'll take this matter under advisement and issue a decision in due course court is a journ [Music]