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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
GARY WILLIAM MIANO, Plaintiff/Appellant,
v.
STEVEN CHILL, et al., Defendants/Appellees.
No. 1 CA-CV 20-0445
FILED 8-3-2021
Appeal from the Superior Court in Maricopa County
No. CV2018-015481
The Honorable Margaret R. Mahoney, Judge
AFFIRMED
COUNSEL
Lloyd Baker Injury Attorneys, Phoenix
By Ricky John Horton, Lloyd Baker, Amy Molina Conway
Counsel for Plaintiff/Appellant
Jones Skelton & Hochuli PLC, Phoenix
By William D. Holm, Petra Lonska Emerson
Counsel for Defendants/Appellees
MIANO v. CHILL, et al.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Cynthia J. Bailey delivered the decision of the Court, in
which Judge Jennifer M. Perkins and Judge Maria Elena Cruz joined.
B A I L E Y, Judge:
¶1 Gary William Miano appeals the superior court’s grant of
summary judgment in favor of Steven Chill, his wife Lisa Chill, and his
mother Ann Chill (collectively “the Chills”). For the following reasons, we
affirm.
FACTS AND PROCEDURAL HISTORY
¶2 When Steven Chill opened his front door to greet his
neighbor, Gary Miano, a dog ran out of the house and bit Miano’s shin.
Miano did not seek medical treatment until two months later when he
began developing vision problems. After consulting numerous medical
providers, Miano tested positive for “[T]oxocara
antibody/[T]oxocariasis.” 1
¶3 Miano filed a complaint against the Chills alleging the dog
bite caused his Toxocariasis and resulting vision loss. The Chills moved for
summary judgment supported by their medical expert’s opinion that
Toxocariasis cannot be transmitted through direct injection like a dog bite.
¶4 The court granted summary judgment and found Miano had
not presented admissible evidence causally linking the dog bite to his vision
loss. The court further found Miano had not disclosed his two treating
physicians as experts as required by Arizona Rule of Civil Procedure
26.1(d)(2), but that even if he had, his physicians could not testify as to
causation because they had not diagnosed or treated Miano for
Toxocariasis.
1The Toxocara antibody can be detected in a person’s blood for years after
exposure, but its presence does not indicate an active Toxocariasis infection.
Toxocariasis is a parasitic infection.
2
MIANO v. CHILL, et al.
Decision of the Court
¶5 We have jurisdiction over Miano’s timely appeal under
Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-
120.21(A)(1) and -2101(A)(1).
DISCUSSION
¶6 The court must grant summary judgment when there is “no
genuine dispute as to any material fact and the moving party is entitled to
judgment as a matter of law.” Ariz. R. Civ. P. 56(a). “We review de novo a
grant of summary judgment, viewing the evidence and reasonable
inferences in the light most favorable to the party opposing the motion.”
Andrews v. Blake, 205 Ariz. 236, 240, ¶ 12 (2003).
¶7 Miano does not challenge the superior court’s determination
that expert evidence was required to show a causal connection between the
dog bite, the Toxocariasis, and the vision loss. And he does not dispute the
superior court’s finding that he failed to disclose his treating physicians as
experts. See generally Ariz. R. Civ. P. 26.1(d).
¶8 Instead, Miano argues summary judgment was inappropriate
here because he “has or can” provide evidence about causation. Miano
contends his treating physicians can opine about his treatment, and
“research on the origins and the mechanism for the cause of the injury,” and
thus, the court erroneously determined that no expert opinion supported a
diagnosis of [T]oxocariasis resulting from the dog bite.
¶9 Although Miano contends that his two treating physicians
diagnosed Toxocariasis as the cause of his vision loss and “have stated that
more likely than not, the dog bite le[]d to [Miano’s] vision loss,” their
deposition testimony belies that assertion.
¶10 One physician diagnosed Miano with “optic disk edema
probably secondary to [T]oxocariasis,” but testified that she had not
diagnosed Miano with Toxocariasis. She also conceded she did not know
whether Toxocariasis can be transmitted by a dog bite.
¶11 The other physician testified it was “possible,” “logical” and
“makes sense” that a person could contract Toxocariasis from a dog bite,
but ultimately concluded it was “unlikely.” He also testified that he could
not locate any research or literature documenting Toxocariasis transmission
by a dog bite. Additionally, he testified that he was not hired to determine
whether Miano had Toxocariasis, was not opining on the cause of Miano’s
low vision problems, and was not able to state Miano’s “condition came
from a dog bite.”
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MIANO v. CHILL, et al.
Decision of the Court
¶12 Even accepting that Toxocariasis could lead to vision loss,
Miano did not provide evidence of a causal link between Toxocariasis and
the dog bite. Nor does Miano’s evidence controvert the Chills’ expert
opinion that the dog bite could not have caused Toxocariasis.
¶13 To the extent Miano has provided any evidence otherwise, it
is of little probative value given the quantum of evidence needed to prove
causation. See Andrews, 205 Ariz. at 240, ¶ 13 (“[S]ummary judgment in
favor of either party is appropriate only ‘if the facts produced in support of
the [other party’s] claim or defense have so little probative value, given the
quantum of evidence required, that reasonable people could not agree with
the conclusion advanced by the proponent of the claim or defense.’”)
(quoting Orme Sch. v. Reeves, 166 Ariz. 301, 309 (1990)).
¶14 We agree with the superior court that Miano provided no
admissible expert opinion that Toxocariasis can be contracted through
direct injection. See generally Ariz. R. Evid. 702-705; Ariz. R. Civ. P. 56(a).
On this record, Miano has not shown that a material question of fact exists
regarding whether the dog bite caused his Toxocariasis or whether
Toxocariasis caused his vision impairment.
CONCLUSION
¶15 The court’s grant of summary judgment is supported by the
record evidence. We affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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