Orosco v. McShcd

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

BRANDON OROSCO and JENNIFER OROSCO, husband and wife,
individually, and as parents and next friends of KAYLEN OROSCO,
MARISSA OROSCO, and SILAS OROSCO,
Plaintiffs/Appellees,

v.

MARICOPA COUNTY SPECIAL HEALTH CARE DISTRICT, a body
politic for and dba MARICOPA INTEGRATED HEALTH SYSTEM,
Defendant/Appellant.

No. 1 CA-CV 15-0580
FILED 2-2-2017

Appeal from the Superior Court in Maricopa County
No. CV2012-004724
The Honorable John Christian Rea, Judge

AFFIRMED IN PART, VACATED AND REMANDED IN PART

COUNSEL

Harris Powers & Cunningham PLLC, Phoenix
By Frank I. Powers
Counsel for Plaintiffs/Appellees

Slattery Petersen, PLLC, Phoenix
By Elizabeth A. Petersen
Counsel for Defendant/Appellant
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MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Jon W. Thompson and Chief Judge Michael J. Brown joined.

J O H N S E N, Judge:

The Maricopa County Special Health Care District
("MCSHCD") appeals the superior court's orders denying judgment as a
matter of law and a new trial or remittitur and imposing costs and
sanctions. For the following reasons, we affirm in part and vacate and
remand in part.1

FACTS AND PROCEDURAL BACKGROUND

Brandon Orosco sought treatment at MCSHCD for severe
burns. During the insertion of a central line, MCSHCD's medical resident
negligently left a two-foot long guidewire in Brandon's artery and failed to
inform her supervising physician or the radiologists when she could not
locate the guidewire after the procedure.

About six weeks later, Brandon presented with excruciating
pain; on imaging, the guidewire was seen running from his chest down to
his right thigh. Doctors attempted several times over the course of three
days to remove the wire, which had embedded in Brandon's femoral artery.
During that time, Brandon suffered severe groin pain and doctors warned
him movement could be fatal. After the wire was removed, Brandon's
femoral artery collapsed, necessitating stent placement. The stent became
blocked and infected, requiring bypass surgery that eventually failed.
Ultimately, doctors removed Brandon's femoral artery.

Brandon was 34 at the time and was expected to live about
another 42 years. Experts testified that as a result of the guidewire incident,
Brandon now suffers emotional distress, PTSD and major depression. He

1 The District also argues the superior court erred by awarding
sanctions under Arizona Rule of Civil Procedure 68(g) calculated from the
date of the first of the Oroscos' two offers of judgment. In a separate
opinion, we affirm the court's decision to impose sanctions calculated from
the date of the first offer. See Arizona Rule of Civil Appellate Procedure
28(c).

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tried to commit suicide, and there is a chance he might lose his leg. Further,
he has nerve damage, permanent scars, difficulty walking and takes pain
medication daily.

Before the close of evidence at trial, MCSHCD moved for
judgment as a matter of law on Brandon's children's loss of consortium
claim, which the superior court denied.

The jury rendered a $4.25 million verdict in favor of Brandon
and his family, allocating 99% of fault to MCSHCD and 1% fault to the
codefendant radiology group. The superior court denied MCSHCD's
motion for new trial or remittitur and awarded taxable costs and sanctions
to the Oroscos.

We have jurisdiction over this timely appeal pursuant to
Arizona Revised Statutes ("A.R.S.") sections 12-2101(A)(1), (5)(a) (2017) and
-2102(B) (2017).2

DISCUSSION

A. Denial of Motion for Judgment as a Matter of Law.

MCSHCD argues the superior court erred by denying its
motion for judgment as a matter of law on the children's claim for loss of
consortium because there was no evidence of damage to the parent-child
relationship.

We review de novo the denial of judgment as a matter of law.
Glazer v. State, 237 Ariz. 160, 167, ¶ 29 (2015). The superior court should
grant judgment as a matter of law when there is no issue of fact and the
movant is entitled to judgment as a matter of law. Id. We review the
evidence in the light most favorable to the children as the non-moving
parties. Id. at ¶ 28. If reasonable people could differ about the conclusions
drawn from the evidence, the court should deny the motion. Id.

A child claiming loss of parental consortium must
demonstrate that the injury caused damage to the normal parent-child
relationship. See Villareal v. State Dep't of Transp., 160 Ariz. 474, 481 (1989);
Miller v. Westcor Ltd. P'ship, 171 Ariz. 387, 395 (App. 1991). If the superior
court determines that "the threshold of a significant interference with the
normal relationship between parent and child has been met," the jury

2 Absent material revision after the relevant date, we cite a statute's
current version.

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"determines the question of recovery or the amount recoverable based on
the degree of that interference." Pierce v. Casas Adobes Baptist Church, 162
Ariz. 269, 272 (1989).

Brandon, his wife, and her sister all testified that after
Brandon suffered injury due to the guidewire, Brandon and his children no
longer enjoyed physical activities together to the same extent as before. The
three children are all school-age teenagers. Viewing this evidence in the
light most favorable to the children, reasonable jurors could find the
negligence by MCSHCD interfered with the children's normal parent-child
relationships with Brandon.

Citing Peterson v. Sun State International Trucks, LLC, 56 So. 3d
840 (Fla. Dist. App. 2011), MCSHCD argues the children needed to testify
about how the guidewire event and their father's resulting injuries affected
their relationship with their father. In Peterson, both the husband who
claimed loss of consortium and his wife testified about the damage to their
marital relationship. Id. at 843. Peterson does not hold that a party claiming
loss of consortium must testify. Under Arizona law, the jury may draw a
negative inference when a party declines to testify in a civil case. Melissa
W. v. Dep't of Child Safety, 238 Ariz. 115, 116-17, ¶ 5 (App. 2015). There is no
requirement in Arizona law, however, that children have to testify in
support of a loss of consortium claim. Thus, the superior court properly
denied MCSHCD's motion for judgment as a matter of law.

B. Denial of Motion for New Trial or Remittitur.

We review for abuse of discretion the denial of a motion for
new trial or remittitur. Hutcherson v. City of Phoenix, 192 Ariz. 51, 53, ¶ 12
(1998). We view the evidence in the light most favorable to upholding the
jury's verdict. Id. at ¶ 13. We will affirm if "any substantial evidence exists
permitting reasonable persons to reach such a result." Id.

1. Evidentiary rulings.

a. Standard-of-care testimony.

MCSHCD argues the superior court erred in allowing the
Oroscos' expert witness to testify MCSHCD breached the standard of care
because MCSHCD conceded negligence.

Regardless of MCSHCD's admission, its fault was at issue at
trial because the codefendant radiology group denied negligence and
causation and the defendants disputed comparative fault. Fault includes

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negligence. A.R.S. § 12-2506(F)(2) (2017). In determining comparative fault,
the jury compares the relative fault of all codefendants. Id. § 12-2506(B)
("[T]he trier of fact shall consider the fault of all persons who contributed to
the alleged injury."); id. § 12-2506(C) (trier of fact shall determine and
apportion the "relative degree of fault" of the claimant, the defendants and
the nonparties); Piner v. Super. Ct., 192 Ariz. 182, 187-89, ¶¶ 20-25, 30 (1998)
(A.R.S. § 12-2506(B) does not "require limiting liability by apportioning
damages but by apportioning fault"); Zuern v. Ford Motor Co., 188 Ariz. 486,
491-92 (App. 1996). Thus, the superior court did not err in admitting
evidence bearing on MCSHCD's fault, including evidence of how
MCSHCD allegedly breached the standard of care.

MCSHCD also argues the superior court improperly
permitted duplicative expert standard-of-care testimony. Contrary to
MCSHCD's argument, the record shows that only the Oroscos' standard-of-
care expert testified that the resident deviated from the standard of care.

Finally, MCSHCD challenges the qualifications of the
Oroscos' standard-of-care expert. We need not decide this issue because
MCSHCD admitted its resident deviated from the standard of care and
there is no dispute that it is negligent to leave a guidewire in a patient and
to fail to notify appropriate individuals after doing so.

b. Preclusion of evidence about the origin of Brandon's
burns.

Before trial, the superior court ruled that because Brandon's
comparative fault was not at issue, it was irrelevant that Brandon had
caused the fire in which he was burned. On the record, the court stated,
"Certainly, the burns, the traumatic events, all of that is relevant to claim
psychological damages, but evidence of how the fire started and casting
fault on Mr. Orosco is not relevant."

At the conclusion of the evidence, MCSHCD filed an offer of
proof, asking to offer excerpts of Brandon's deposition testimony and his
medical records and to recall an expert witness, all to show that Brandon
suffered nightmares of the fire and had related anxiety and mental trauma
related to the fire. MCSHCD argued the court's pretrial ruling unfairly had
prevented it from cross-examining the expert about the mental distress
Brandon suffered from the fire. After reviewing the offer of proof, the court
observed that it was "not sure that the pretrial ruling precluding
comparative fault was quite as broad" as MCSHCD had understood. The
court continued, "There was always the burns and the nature of the burns

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were always fair game, and if asked, we could have probably gone into
some of these issues as long as nobody was casting fault on Mr. Orosco."

Notwithstanding MCSHCD's argument, however, it indeed
cross-examined the expert witness about Brandon suffering
psychologically due to his burns. Moreover, as the court indicated after
reviewing the offer of proof, its pretrial ruling did not bar MCSHCD from
offering proof that Brandon suffered mental distress as a result of his burns.
In any event, because the expert testified about those psychological injuries,
no ruling by the court affected MCSHCD's substantial rights. Ariz. R. Evid.
103(a).

c. Admission of evidence of the risk of amputation.

MCSHCD argues the superior court erred in permitting
evidence and argument that negligence by MCSHCD caused Brandon an
increased risk of leg amputation.

The Oroscos' vascular surgery expert testified that because
the guidewire had been embedded in Brandon's femoral artery for five or
six weeks, Brandon developed an infection necessitating removal of the
entire artery. The expert also testified that although remaining collateral
arteries provide blood flow to Brandon's leg, Brandon is at a higher risk
than a normally healthy person for developing future infection that might
require his leg to be amputated. Brandon's treating surgeon testified the
chance of Brandon losing his leg is "very low" but "more so than the general
population."

Relying on Thompson v. Sun City Community Hospital, Inc., 141
Ariz. 597 (1984), MCSHCD argues this evidence did not rise to the threshold
level of "increased risk of harm" necessary to establish causation, and
contends the superior court erred in denying its motion for new trial on this
basis.

MCSHCD confuses causation with damages. In the ordinary
negligence case, a plaintiff must prove the defendant probably caused his
or her injury. Benkendorf v. Advanced Cardiac Specialists Chartered, 228 Ariz.
528, 530, ¶ 8 (App. 2012). In a limited class of cases relying on the "loss of
chance" theory of causation, a plaintiff only needs to show that negligence
"increased the risk" of harm. Thompson, 141 Ariz. at 605-08. Here, the
evidence of risk of amputation was not offered to prove MCSHCD caused
Brandon harm, but rather as an element of damages.

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"Greater susceptibility to physical harm has been recognized
as an element of damage[s] in Arizona." Kenyon v. Hammer, 142 Ariz. 69, 75
(1984) (increased risk of future fetal fatality is "damage which will sustain a
cause of action in tort"). Moreover, an increased risk of future harm is
compensable when accompanied by physical deterioration. See Felder v.
Physiotherapy Assocs., 215 Ariz. 154, 166, ¶ 54 (App. 2007) (plaintiff could
recover for anxiety over his less than 1% chance of loss of vision).

The jury found MCSHCD liable for failing to remove the
guidewire after the procedure. The evidence showed that as a result of
MCSHCD's negligence, Brandon suffered serious physical injury and has
an increased risk of leg amputation compared to the average person. The
superior court did not err in denying the motion for new trial due to the
admission of amputation-risk evidence.

2. Closing argument.

a. "Conscience of the community" statement.

Although no claim for punitive damages was before the jury,
MCSHCD argues that the Oroscos' lawyer improperly suggested the jury
should punish MCSCHD by its damage verdict. It points to comments by
the Oroscos' lawyer during closing argument that the jury should "keep in
mind you're the conscience of the community" and should "tell them with
your verdict that our community deserves better."

In support for its contention that these comments improperly
influenced the jury, MCSHCD cites Maercks v. Birchansky, 549 So. 2d 199
(Fla. App. 1989), and Janssen Pharmaceutica, Inc. v. Bailey, 878 So. 2d 31 (Miss.
2004). The court in Maercks reversed a medical malpractice award due to a
long list of improper statements by the plaintiff's lawyer, including, but not
limited to: "[C]ounsel for plaintiff three times asked the jury as the
'conscience of the community' to 'send a message with its verdict,' and
additionally commented on the expense of past medical bills when there
was no claim for past medical expenses as damages, made derogatory
personal remarks about opposing counsel, and asserted his personal
opinion as to the credibility of a witness, the justness of his client's cause
and the perfidy of the defendant." 549 So. 2d at 200. And in Janssen,
plaintiffs' counsel not only asked the jury to "send a message," but also
repeatedly told the jury that the defendant had lied to and defrauded the
public, notwithstanding the court's prior dismissal of a claim for
misrepresentation. 878 So. 2d at 62.

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The comments by Oroscos' lawyer on which MCSHCD bases
its argument came at the end of a passage in which counsel called the jury's
attention to each item on a verdict form. Counsel concluded:

When you answer these questions, keep in mind you're the
conscience of the community. You're the one that needs to
consider all the harm in the lives that have been forever
changed. . . . What happens to Mr. Orosco is up to you. Make
sure the debt the defendants have created is paid in full. Tell
them with your verdict that they seriously harmed this
family. Tell them with your verdict that our community
deserves better.

We do not agree that these comments effectively asked the jury to punish
MCSHCD. Nothing similar to the improprieties in Maercks or Janssen
occurred here. Taken as a whole, counsel's statements properly urged the
jury to consider the verdict forms. See Cota v. Harley Davidson, 141 Ariz. 7,
15 (App. 1984) (rejecting contention that telling the jury to "send a message"
was an improper request for punitive damages).

b. Comment on MCSHCD's failure to call an
independent medical examiner.

MCSHCD argues the court erred by denying its motion to
preclude any reference to the fact that it decided not to offer testimony by
an independent medical examiner that it had retained to examine Brandon.
MCSHCD argues Brandon's testimony about the examination and his
lawyer's reference in closing argument to the fact that MCSHCD failed to
call the examiner improperly permitted the jury to draw an adverse
inference.

MCSHCD relies on Gordon v. Liguori, 182 Ariz. 232 (App.
1995), to support its argument that Arizona law precludes comment on the
defense's failure to call the examiner. The jury may draw an adverse
inference from the failure to call a witness "only under limited
circumstances." Gordon, 182 Ariz. at 236. But Brandon testified that the
expert's examination caused him pain; he did not go on to point out that the
examiner was not a witness at trial. As to the closing argument comment,
under Gordon, relevant considerations are whether the witness is under the
control of the party that failed to call the witness to testify, whether the
party naturally would call the witness to testify if that testimony would be
favorable to the party, and "whether the existence or nonexistence of a
certain fact is uniquely within the knowledge of the witness." Id.; see also

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Ponce v. Indus. Comm'n, 120 Ariz. 134, 136 (App. 1978). When the particular
perspective is uniquely within the witness's knowledge, the jury may draw
an adverse inference from the failure to testify. See Melissa W., 238 Ariz. at
117, ¶ 8. The first two factors clearly weigh in favor of allowing the
argument; moreover, because only the examiner knew the details and
results of his examination of Brandon, that factor also weighs against
MCSHCD's contention that the court erred by denying its motion to
preclude. See id.

C. Jury Instructions.

MCSHCD argues the superior court erred in failing to instruct
the jury that A.R.S. § 12-820.04 (2017) did not allow an award of punitive
damages. The jury, however, was properly instructed on the nature and
elements of the damages for which the Oroscos were entitled to seek
compensation. MCSHCD cites no authority for the proposition that under
these circumstances, the jury must be told it should not award punitive
damages or otherwise punish the defendant by its verdict.

MCSHCD also argues the superior court erred by not
instructing the jury that it was not liable for damages arising from
Brandon's burns and a subsequent motor vehicle accident. MCSHCD did
not request a jury instruction related to the burns and the motor vehicle
accident. The superior court properly instructed the jury that Brandon was
not entitled to compensation for physical conditions pre-existing
MCSHCD's fault and that it must decide the amount of money that would
compensate the Oroscos for the damages caused by MCSHCD's fault. The
superior court did not err in failing to a give a more specific jury instruction.

D. Damages Award.

MCSHCD contends a new trial or remittitur was warranted
because the evidence did not support the $4.25 million verdict.

The jury decides the appropriate amount of damages.
Creamer v. Troiano, 108 Ariz. 573, 576 (1972). If the verdict is "so
unreasonable and outrageous as to shock the conscience of this court" and
derives from passion or prejudice, we will remand for a new trial. Stallcup
v. Rathbun, 76 Ariz. 63, 65-67 (1953). A large verdict does not necessarily
derive from passion or prejudice. Hutcherson, 192 Ariz. at 57, ¶ 36. If the
verdict signals "an exaggerated measurement of damages," remittitur is
appropriate. See Stallcup, 76 Ariz. at 65-67. On review, reference to other
jury verdicts is "dangerous" because no two persons, injuries or juries are
alike. Wry v. Dial, 18 Ariz. App. 503, 514-15 (1972); see also Ahmad v. State,

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240 Ariz. 381, 385-86, ¶¶ 12-16 (App. 2016). Instead, we examine whether
the evidence supports the damages award. See Ahmad, 240 Ariz. at 385, ¶
10; In re Estate of Hanscome, 227 Ariz. 158, 162, ¶ 14 (App. 2011).

MCSHCD essentially asks us to reweigh the evidence, which
we cannot and will not do. See Creamer, 108 Ariz. at 576. In particular, in
considering the damages evidence supporting Brandon's pain and
suffering, we are not shocked by the amount of the verdict, nor is the verdict
an exaggerated measurement of damages. On this record, the superior
court did not err in denying a new trial or remittitur based on the damages
award.

E. Cost Award and Sanctions.

1. Costs.

Under A.R.S. § 12-341 (2017), the superior court must award
costs to the successful party. Graville v. Dodge, 195 Ariz. 119, 130, ¶ 52 (App.
1999). We review a cost award for abuse of discretion. See id. at ¶ 53.

a. Verification.

MCSHCD argues the superior court erred in awarding costs
in the absence of a timely verification by the Oroscos in support of their cost
claim. Although the requesting party must file a verified statement of costs
within ten days after judgment, the superior court may extend the time for
compliance for good cause. A.R.S. § 12-346(A) (2017).

When the Oroscos timely submitted their statement of costs,
they omitted the requisite accompanying verification, but they submitted
the verification with their reply. We infer from the superior court's cost
award that it found good cause to extend the time to submit the verification.
See Wippman v. Rowe, 24 Ariz. App. 522, 525 (1975). In the absence of any
argument to the contrary, the superior court did not err in extending the
time for compliance.

b. Specific objections to costs.

In a separate opinion, we hold the superior court did not err
by awarding the Oroscos the costs of service of process. MCSHCD also
challenges the award of costs for video deposition fees, contending the
Oroscos only could recover costs for a deposition transcript/court reporter
or a deposition video/videographer, but not both. The superior court has
discretion to award both sets of costs, "[b]ased on an individualized

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determination of reasonableness and necessity." Reyes v. Frank's Serv. &
Trucking, LLC, 235 Ariz. 605, 611, ¶ 23 (App. 2014). We infer from the
superior court's ruling that it determined both sets of costs were reasonable
and necessary. See Wippman, 24 Ariz. App. at 525. Because there is evidence
supporting the reasonableness and necessity of using both methods for the
taking of depositions, the superior court did not abuse its discretion in
awarding costs for both memorialization methods.

Next, MCSHCD challenges the award of costs for copies of
deposition transcripts sent to experts. Because the cost of deposition
transcript copies is recoverable as a "cost incidental to the taking of the
deposition," we reject MCSHCD's argument. Visco v. First Nat'l Bank of
Ariz., 3 Ariz. App. 504, 508 (1966).

MCSHCD also challenges the award of costs for private
mediation fees. Recoverable costs include "[o]ther disbursements that are
made or incurred pursuant to an order." A.R.S. § 12-332(A)(6) (2017); see
also Graville, 195 Ariz. at 130, ¶ 54 (affirming assessment of court-appointed
physician witness fees against respondent as a taxable cost under A.R.S. §
12-332(A)(6) because the payment of fees by the prevailing party was made
pursuant to court order). Here, because the superior court ordered the
parties to participate in private mediation, the superior court did not err in
awarding costs for private mediation fees. See Graville, 195 Ariz. at 130, ¶
54.

MCSHCD also challenges other expenses claimed as taxable
costs. The Oroscos claimed $4,000 billed by one expert and $4,500 billed by
another for the time spent in traveling to Arizona for the trial. Fees paid to
an expert witness for travel time, however, are not taxable as witness fees
under § 12-332(A) and the version of Arizona Rule of Civil Procedure
54(f)(2) in effect at the time. Foster v. Weir, 212 Ariz. 193, 195, ¶ 8 (App.
2006). Similarly, the Oroscos cite no authority for their cost claim for $721
in travel expenses for another expert. Further, we find no authority, and
the Oroscos cite none, under which $153.55 in meal expenses incurred
during a deposition and a settlement conference are taxable costs. Because
the Oroscos could only recover costs pursuant to statutory authorization,
Ahwatukee Custom Estates Management Ass'n v. Bach, 193 Ariz. 401, 402, ¶ 6
(1999), on remand, the superior court should vacate the portion of the cost
award relating to meals, experts' travel time and experts' travel expenses.

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2. Rule 68 sanctions.

We review a sanctions award under Arizona Rule of Civil
Procedure 68 for abuse of discretion. Berry v. 352 E. Va., L.L.C., 228 Ariz. 9,
15, ¶ 31 (App. 2011). In a separate opinion, we reject the argument by
MCSHCD that the superior court erred as a matter of law by calculating
sanctions from the date of the Oroscos' first offer of judgment pursuant to
Rule 68.

MCSHCD also raises other issues concerning the superior
court's sanction award. Under Rule 68(g), the Oroscos were entitled to be
reimbursed their "reasonable expert witness fees." The Oroscos sought
sanctions under Rule 68(g) for the fees paid to several expert witnesses,
including those whose travel time we addressed as claimed taxable costs,
supra ¶ 43. Although expert fees incurred during travel are not recoverable
as a taxable cost pursuant to § 12-332, they may be recovered as expert fees
under Rule 68(g). Levy v. Alfaro, 215 Ariz. 443, 445, ¶ 14 (2007). We cannot
discern from the record how the superior court's sanctions award treated
these fee claims. On remand, the court may take whatever additional
briefing or evidence is required to sort out the claimed fees.

MCSHCD otherwise argues the superior court erred by
doubling some of the Oroscos' expert witness fees as a sanction under Rule
68(g). At the time relevant to this appeal, Rule 54(f)(2) provided that
reasonable fees paid to expert witnesses for testifying at trial in a medical
malpractice case are "witness fees" as set forth in A.R.S. § 12-332(A)(1) and
are considered a taxable cost. In turn, Rule 68(g) requires the doubling of
taxable costs incurred after making the offer of judgment as a sanction for
rejecting an offer. The superior court thus did not err to the extent it
awarded the Oroscos double the amount they paid in fees to expert
witnesses for testifying at trial as a sanction pursuant to Rule 68.

There is no authority under Rule 68, however, for doubling
any other fees incurred by expert witnesses. See Foster, 212 Ariz. at 195, ¶ 8
(Rule 54(f)(2) did not apply to expert fees other than fees incurred for
testifying at trial). Therefore, on remand, the court should reconsider its
sanctions award to ensure that the sanctions it awarded under Rule 68(g)
did not include improper double expert witness fees.

Finally, MCSHCD also challenges the sanction award based
on fees paid to expert Jared Armstrong because he was not timely disclosed
and did not testify at trial. Rule 68(g) provides that an offeree must pay as
a sanction reasonable expert witness fees. Rule 68(g) does not limit fees

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only to experts testifying at trial. See Levy, 215 Ariz. at 445, ¶ 14 (rejecting
the argument that a party can only recover expert fees under Rule 68 for
time spent testifying at trial); Scottsdale Ins. Co. v. Cendejas, 220 Ariz. 281,
289, ¶¶ 39-42 (App. 2009) (affirming Rule 68 sanctions based on expert fees
paid to withdrawn expert). The record shows the Oroscos incurred an
expert witness fee for Armstrong after making the Rule 68 offers. Thus, the
superior court did not abuse its discretion by awarding sanctions based on
fees paid to Armstrong.

CONCLUSION

For the foregoing reasons, we affirm the judgment except that
we vacate, in part, the superior court's award of taxable costs and sanctions
under Rule 68(g). On remand, the superior court shall reconsider the items
addressed supra ¶¶ 43, 45-47 and modify its award, if necessary, consistent
with this decision. Contingent on its compliance with Arizona Rule of Civil
Appellate Procedure 21, we grant MCSHCD the costs it incurred on appeal
that it can demonstrate relate to those taxable costs and sanctions.

AMY M. WOOD • Clerk of the Court
FILED: AA

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