NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
CARLOS YANEZ, Plaintiff/Appellant,
v.
CHANDAN KUNDAVARAM, M.D., et al., Defendants/Appellees.
No. 1 CA-CV 20-0303
FILED 8-10-2021
Appeal from the Superior Court in Maricopa County
No. CV2017-014109
The Honorable Danielle J. Viola, Judge
AFFIRMED IN PART, VACATED IN PART, AND REMANDED
COUNSEL
Kelly & Lyons, PLLC, Scottsdale
By Jason M. Kelly, Richard D. Lyons
Counsel for Plaintiff/Appellant
Sanders & Park, PC, Phoenix
By Robin E. Burgess, Molly B. Adrian
Counsel for Defendant/Appellee
YANEZ v. KUNDAVARAM, et al.
Decision of the Court
MEMORANDUM DECISION
Chief Judge Kent E. Cattani delivered the decision of the Court, in which
Judge Samuel A. Thumma and Judge Brian Y. Furuya joined.
C A T T A N I, Chief Judge:
¶1 Carlos Yanez appeals the judgment and the superior court’s
order denying his motion for new trial in a medical malpractice case. Yanez
argues the superior court gave erroneous jury instructions and
miscalculated taxable costs. For reasons that follow, we vacate the costs
award and remand for a redetermination of the award. In all other respects,
we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 In March 2017, Dr. Chandan Kundavaram removed Yanez’s
prostate during a computer-assisted robotic surgery. After the surgery,
Yanez felt significant pain, and a subsequent X-ray and CT scan revealed a
suture needle inadvertently left in Yanez’s pelvis. Dr. Kundavaram
performed another surgery four days later to remove the needle.
¶3 The suture needle left in Yanez’s body was one of two needles
used to connect the bladder and the urethra. During the surgery, Dr.
Kundavaram’s surgical assistant, Matthew Tremayne, accidentally
knocked a pair of scissors from the instrument tray onto the ground while
working on the patient’s left side. After getting a new pair of scissors and
moving to the patient’s right side, Tremayne apparently forgot to go back
to the left side to remove the suture needle.
¶4 As Dr. Kundavaram completed the surgery, the scrub
technician and the circulating nurse performed two counts of the medical
instruments that had been removed from the body to compare to the initial
count of instruments present before surgery began. One count did not
match the initial count, but the other count did, so Dr. Kundavaram asked
the scrub technician and the circulating nurse to count a third time. The
final two counts matched the scrub technician’s initial instrument count, so
the nurse reported it as “accurate and correct.” Relying on those final two
counts, Dr. Kundavaram sewed up the patient.
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YANEZ v. KUNDAVARAM, et al.
Decision of the Court
¶5 Yanez brought a medical negligence claim against Dr.
Kundavaram and Abrazo Community Health Network, the hospital where
the surgery took place. Yanez did not sue Tremayne. Yanez settled with
Abrazo and proceeded to trial against Dr. Kundavaram. During the six-
day trial, Yanez, Dr. Kundavaram, Tremayne, the scrub technician, and
several experts testified. The jury found in favor of Dr. Kundavaram. The
court issued a judgment in favor of Dr. Kundavaram and awarded him
taxable costs in the amount of $13,146.87, including the fees he paid for two
experts to testify at trial.
¶6 Yanez filed a motion for new trial under Arizona Rule of Civil
Procedure 59, arguing that (1) the court should have instructed the jury
regarding vicarious liability, and (2) the court’s instruction on the measure
of recoverable damages misled the jury. The court denied the motion, and
Yanez timely appealed. We have jurisdiction under A.R.S.
§ 12-2101(A)(1), (5)(a).
DISCUSSION
I. Jury Instructions.
¶7 Yanez asserts that the superior court improperly rejected his
proposed respondeat superior jury instruction, and that the court’s
damages instruction was improper.
¶8 We review the denial of a requested jury instruction for an
abuse of discretion. Strawberry Water Co. v. Paulsen, 220 Ariz. 401, 409, ¶ 21
(App. 2008). “The court must give a proposed jury instruction ‘if: (1) the
evidence presented supports the instruction, (2) the instruction is proper
under the law, and (3) the instruction pertains to an important issue, and
the gist of the instruction is not given in any other instructions.’” Id. at ¶ 22
(quoting DeMontiney v. Desert Manor Convalescent Ctr. Inc., 144 Ariz. 6, 10
(1985)). We review jury instructions “as a whole with an eye toward
determining whether the jury was given the proper rules of law to apply in
arriving at its decision.” Thompson v. Better-Bilt Aluminum Prods. Co., 187
Ariz. 121, 126 (App. 1996). We will not disturb a jury verdict based on
instructional error absent “substantial doubt as to whether the jury was
properly guided in its deliberations.” Id.
¶9 At trial, Yanez argued for the inclusion of a respondeat
superior jury instruction, alleging that Tremayne was Dr. Kundavaram’s
agent. Dr. Kundavaram opposed the instruction, arguing that he was
responsible only for his own acts and that it was the Abrazo staff that was
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YANEZ v. KUNDAVARAM, et al.
Decision of the Court
negligent. Tremayne was not named in the suit. The court denied Yanez’s
request for the respondeat superior jury instruction.
¶10 Respondeat superior applies to employer/employee
relationships when the employee was acting within the scope of his or her
employment, but it is not generally applicable to independent contractors.
See Kopp v. Physician Grp. of Ariz., Inc., 244 Ariz. 439, 441, ¶ 9 (2018)
(explaining that respondeat superior renders the principal liable for the
“negligent work-related actions” of his or her agents); Wiggs v. City of Phx.,
198 Ariz. 367, 369, ¶ 7 (2000) (distinguishing between employees and
independent contractors for these purposes); see also Rev. Ariz. Jury Instr.
(Civil) Standard 5 (6th ed. 2015) (“Respondeat Superior Liability”). A
principal is not liable for an independent contractor’s negligence if the
principal only “instructs the independent contractor (agent)[] on what to
do, but not how to do it. That is what distinguishes an independent
contractor from an employee.” Wiggs, 198 Ariz. at 370, ¶ 10 (citing
Restatement (Second) of Agency § 2(3) (1958)).
¶11 Yanez does not dispute that Tremayne was an independent
contractor. Instead, Yanez argues that there was an agency relationship
between Dr. Kundavaram and Tremayne. Yanez relies on a statement Dr.
Kundavaram made during a deposition (and that was repeated by his own
expert during trial) to “show” Dr. Kundavaram’s control: Dr. Kundavaram
stated that a surgeon is “responsible for how your assistant is helping you.”
But that statement was not an admission that Tremayne was Dr.
Kundavaram’s employee, and instead was simply an acknowledgement
that the surgical assistant’s work is guided by the surgeon.
¶12 While it is true that an independent contractor can be an
agent, see id., Yanez failed to prove that an agency relationship existed
between Tremayne and Dr. Kundavaram such that respondeat superior
liability applies. During trial, Tremayne testified that his job primarily
consists of exchanging instruments with the surgeon and the robot,
retraction, suction, and passing and removing sutures. Tremayne testified
that he “practic[es] independently during these procedures” and he does
not need the surgeon telling him every aspect of what to do. Dr.
Kundavaram also testified that Tremayne “works very independently” and
that Dr. Kundavaram relied on Tremayne to perform his job while Dr.
Kundavaram performed his own duties. Dr. Kundavaram testified that he
sits at a distance from the operating table, “sometimes with [his] back to the
patient,” directing the robot by placing his head inside a console. In
contrast to Tremayne, Dr. Kundavaram—although physically present in
the room and controlling the instruments—was not “scrubbed in” (or
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YANEZ v. KUNDAVARAM, et al.
Decision of the Court
sterile), and was not tasked with removing instruments from the patient
during the operation. Yanez did not controvert this testimony or otherwise
provide evidence that Dr. Kundavaram could, or did, exercise specific
control over this aspect of Tremayne’s work. See id. Accordingly, the
superior court did not abuse its discretion by denying the requested
respondeat superior jury instruction.
¶13 Yanez notes that Dr. Kundavaram did not name Tremayne as
a non-party at fault, which “sand-bagged” him at trial, as demonstrated by
a juror questioning why Tremayne was not included on the “list to hold
accountable.” Yanez also notes that Dr. Kundavaram did not argue at trial
that Tremayne bore responsibility (although Dr. Kundavaram’s counsel did
elicit testimony from Tremayne that he forgot to remove the suture needle).
But those facts do not establish an agency relationship. And the plaintiff,
as “master of the claim,” see Caterpillar Inc. v. Williams, 482 U.S. 386, 392
(1987), can—and must—join every person as a party to the suit so that the
court can “accord complete relief among existing parties.” Ariz. R. Civ. P.
19(a)(1)(A). Here, Yanez could have joined Tremayne as a defendant in the
lawsuit but did not do so. Yanez’s failure to do so did not entitle him to a
respondeat superior instruction.
¶14 Moreover, the jury was properly instructed on Arizona’s law
regarding comparative fault, under which a tortfeasor is liable only to the
extent of his or her own fault. A.R.S. § 12-2506(A) (“Each defendant is liable
only for the amount of damages allocated to that defendant in direct
proportion to that defendant’s percentage of fault . . . .”); Ryan v. S.F. Peaks
Trucking Co., 228 Ariz. 42, 51, ¶ 34 (App. 2011) (citing sources). The
comparative fault of Dr. Kundavaram individually was properly submitted
to the jury, as was the comparative fault of the Abrazo staff responsible for
counting the instruments, and Yanez has shown no error in these jury
instructions. Thompson, 187 Ariz. at 126.
¶15 Next, Yanez challenges the damages instruction provided to
the jurors, asserting that the instruction wrongfully omitted the value of the
second surgery and subsequent hospitalization. Before trial, the court
granted Dr. Kundavaram’s motion in limine precluding Yanez from
discussing any evidence of expenses related to his subsequent surgery to
remove the needle because he was not charged for those services.
¶16 Yanez argues that he was entitled to claim the reasonable
value of all medical expenses rendered, not just those costs actually paid.
As they did below, the parties dispute whether Yanez can claim the value
of the second surgery and hospitalization as medical expenses when he was
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YANEZ v. KUNDAVARAM, et al.
Decision of the Court
never billed for the second surgery to remove the needle (or the subsequent
hospitalization). See Lopez v. Safeway Stores, Inc., 212 Ariz. 198, 206–07,
¶¶ 24, 26 (App. 2006) (authorizing recovery of “the full amount of
reasonable medical expenses charged, based on the reasonable value of
medical services rendered, including amounts written off from the bills
pursuant to contractual rate reductions”). But where the jury finds no
liability on the part of the defendant, any purported error in a damages
instruction is harmless. Medlyn v. Kimble, 106 Ariz. 66, 68 (1970).
Accordingly, we decline to reach this issue.
II. Expert Witness Fees as Taxable Costs.
¶17 Finally, Yanez argues that the superior court erred by
awarding Dr. Kundavaram his testifying expert witness fees as taxable
costs under Rule 54.
¶18 After trial, Dr. Kundavaram submitted his statement of costs
that included $11,800 in expert witness fees: $1,800 for Linda Redding, R.N.,
and $10,000 for Dr. Ali Borhan. These fees appear to represent the amounts
paid by Dr. Kundavaram for the experts’ time while testifying at trial.
Yanez argues that such fees are not awardable as taxable costs under Rule
54(f). We consider de novo whether expert witness fees may be considered
taxable costs. Schritter v. State Farm Mut. Auto. Ins. Co., 201 Ariz. 391, 392,
¶ 5 (2001).
¶19 “A party to a civil action cannot recover its litigation expenses
as costs without statutory authorization.” Id. at ¶ 6. By statute, taxable
costs include witness fees. A.R.S. § 12-332(A)(1). And testifying witness
fees are limited to $12 per day with a travel allowance. A.R.S. § 12-303. The
statutory scheme does not provide for “the allowance of expert witness
fees” as costs. Schritter, 201 Ariz. at 392, ¶ 7 (quoting State v. McDonald, 88
Ariz. 1, 14 (1960)).
¶20 Before 2017, Rule 54(f) provided: “[i]n medical malpractice
cases only, witness fees, set forth in A.R.S. § 12-332(A)(1) as taxable costs in
the Superior Court, shall include reasonable fees paid expert witnesses for
testifying at trial.” Ariz. R. Civ. P. 54(f)(2) (2016); Foster ex rel. Foster v. Weir,
212 Ariz. 193, 195, ¶ 4 (App. 2006). But in 2017, Rule 54 was amended and
this specific carve-out for medical negligence claims was removed. Ariz. R.
Civ. P. Order R-16-0010, at 156, 158–59, https://www.azcourts.gov/
Portals/20/2016%20Rules/R-16-0010.pdf. Although the 2017 amendments
to Rule 54 “make several clarifying and substantive changes,” none of the
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YANEZ v. KUNDAVARAM, et al.
Decision of the Court
rule-change comments discuss the removal of the medical malpractice-
specific language. Id. at 158–59.
¶21 Because the 2017 amendment to Rule 54(f) removed any
specific reference to medical negligence claims, expert witness fees in
medical negligence claims are treated like they are in connection with other
claims. And in all other claims, “the fees [a litigant] pays its own expert
witness are not recoverable.” RS Indus., Inc. v. Candrian, 240 Ariz. 132, 137,
¶ 16 (App. 2016). Accordingly, the fees a litigant pays his own expert
witness for testifying in medical malpractice cases are not taxable costs, and
the superior court erred when it awarded them as such.
¶22 Dr. Kundavaram offers no other basis to authorize these
testifying expert witness fees as taxable costs. He asserts, however, that he
is entitled to the fees because Arizona law requires experts in medical
malpractice actions. But while almost all medical malpractice claims
require claimants—or plaintiffs—to use experts to establish the standard of
care under A.R.S. § 12-2603(B), it is not accurate, as Dr. Kundavaram asserts,
to suggest that a defendant in a medical malpractice claim must retain an
expert. See Seisinger v. Siebel, 220 Ariz. 85, 94–95, ¶¶ 33, 35–36 (explaining
the plaintiff’s duty to provide a physician expert witness in a medical
malpractice case against a physician to avoid judgment for the defendant).
Moreover, even assuming expert witnesses are generally necessary to rebut
required expert witness testimony, there is no statutory provision
authorizing recovery in litigation of such witness expenses.
¶23 Accordingly, we vacate the superior court’s award of expert
fees as costs and remand for Dr. Kundavaram’s costs to be reduced by
$11,800.
III. Transcripts and Sanction Request.
¶24 Dr. Kundavaram alleges that Yanez failed to scrupulously
follow ARCAP 11 and violated other ARCAP provisions. Dr. Kundavaram
requests ARCAP 25 sanctions against Yanez and the dismissal of the
appeal. In our discretion, we decline to impose sanctions.
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YANEZ v. KUNDAVARAM, et al.
Decision of the Court
CONCLUSION
¶25 For the foregoing reasons, we affirm the judgment on the
merits but vacate the award of $11,800 in expert witness fees as taxable costs
and remand for entry of judgment with the proper calculation of costs. In
our discretion, we deny both parties their costs associated with the appeal.
AMY M. WOOD • Clerk of the Court
FILED: AA
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