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ARIZONA SUPEREME COURT UPHOLDS DEFENSE VERDICT

On September 13, 2017, shareholder Mandi Karvis argued the Spring v. Bradford matter in front of the Arizona Supreme Court. On October 23, 2017, the Court issued a unanimous decision, authored by Vice Chief Justice Pelander, which affirmed the trial court's judgment and order denying Plaintiff's motion for new trial and thus upholding the defense verdict, that Ms. Karvis and Winn Sammons obtained in October 2014. The issues addressed by the Court were if the Rule of Exclusion applies to expert witnesses and if prejudice should be presumed for a violation of the Rule. The Court held that when Rule 615 (the Rule of Exclusion) is invoked it prohibits a party from providing prospective trial witnesses, including expert witnesses, with trial transcripts prior to their testimony. Experts are not automatically exempt from Rule 615, as being "essential to a party's claim or defense" but can be deemed as such if the party is able to establish that they are essential. That showing must be made in advance. Further, the Court held that violation of the Rule is not presumptively prejudicial in a civil action, but that even when no prejudice is shown, the trial court must take some corrective action by tailoring an appropriate remedy under the circumstances. Spring v. Bradford, 776 Ariz. Adv. Rep. 29, Arizona Supreme Court October 23, 2017, 2017 WL4767137.


SANDERS & PARKS ATTORNEYS OBTAIN DEFENSE VERDICT IN A CHIROPRACTIC MALPRACTICE JURY TRIAL

Shareholder, Mandi Karvis and associate, Nicole Stewart recently obtained a defense verdict on behalf of a chiropractor in a medical malpractice case.The primary plaintiff was a young woman who alleged that she experienced a stroke as a result of a chiropractic adjustment of her cervical spine. She claimed that as a result of her stroke she suffered from migraine headaches and as a result was unable to work as a certified personal trainer. Ms. Karvis and Ms. Stewart were able to establish that it was likely that the plaintiff experienced a spontaneous dissection of her vertebral artery, which in turn caused her to experience a stroke. The Plaintiff's husband was a former MLB pitcher who was seeking lost wages for loss of performance based bonuses due to interruption of his usual off-season training regimen. The Court granted a motion for directed verdict on Plaintiff's husband's claim for lost wages and that claim was not allowed to be considered during deliberations. Plaintiffs' counsel asked the jury to award in excess of $2 million. After deliberating for about two hours, the jury returned a defense verdict.


ATTORNEY MANDI KARVIS ACHIEVES UNANIMOUS DEFENSE VERDICT IN PRO HAC VICE APPEARANCE IN TENNESSEE

Shareholder, Mandi Karvis was recently admitted pro hac vice to assist with a trial in Nashville, TN. The case involved allegations of sexually inappropriate contact with a female patient during a series of therapeutic massages performed by a male chiropractor. The plaintiff claimed purely emotional injuries and alleged that she had PTSD as a result of the conduct. Plaintiffs' counsel asked the jury to award $1.5-2 million. Together with local counsel, John Floyd and John Floyd, Jr., of Todd & Floyd PLC, Ms. Karvis was able to obtain a unanimous defense verdict when the jury concluded that there was not a causal link between the alleged negligence and the Plaintiff's claimed emotional injury.


2016 CLIENT CHOICE AWARD

Mark Worischeck, Managing Shareholder of Sanders & Parks, P.C., has received the 2016 Client Choice award from Lexology and the International Law Office (ILO). Established in 2005, the Client Choice awards recognize partners around the world that stand apart for their excellent client service.


ATTORNEY MARK WORISCHECK PARTICIPATES IN PANEL AT THE 24TH ANNUAL ABA INSURANCE COVERAGE LITIGATION COMMITTEE MIDYEAR PROGRAM

On February 28, 2016, Managing Shareholder Mark Worischeck participated in a panel session at the 24th Annual ABA Coverage Litigation Committee Midyear Program. The panel presentation addressed "Lizards Loose in the Courtroom: Representing the Carrier Client in the Age of Reptile Advocacy".


SANDERS & PARKS MANAGING SHAREHOLDER HOSTS WEBINAR FOR ALLIANZ GLOBAL CORPORATE & SPECIALTY

On February 9, 2016, Mark Worischeck hosted a webinar for employees of Allianz Global Corporate & Specialty (formerly Fireman’s Fund Insurance Company) on "How to Prepare for and Beat the Reptile – Can the Insurance Company Wear the White Hat?"


ATTORNEY MARK WORISCHECK FEATURED AS PRESENTER AT 2015 INSURANCE LAW INSTITUTE

On January 30, 2015, Sanders & Parks Managing Shareholder Mark Worischeck was a featured presenter at the State Bar of Arizona Insurance Law Institute. Mark presented on Workers' Compensation Bad Faith: Defense Perspective.


Shareholder Mandi Karvis recently obtained a unanimous defense verdict on behalf of a chiropractor in a medical malpractice case. The primary Plaintiff alleged that she suffered a lumbar disc herniation at the L4-L5 level as a result of a chiropractic adjustment. Ms. Karvis was able to establish that it was more likely that the Plaintiff had a pre-existing disc herniation secondary to degenerative disc disease. She was also able to help the jury understand that it was not enough for Plaintiffs to prove that the chiropractic adjustment caused or aggravated the disc herniation, rather they had to prove that the injury was caused by a negligently performed chiropractic adjustment. Plaintiffs' counsel asked the jury to award his clients $585,000.00-$685,000.00. The jury returned a unanimous defense verdict in less than thirty minutes.


SANDERS & PARKS ACHIEVE UNANIMOUS DEFENSE VERDICT IN MEDICAL MALPRACTICE JURY TRIAL

Shareholders Mandi Karvis recently obtained a unanimous defense verdict on behalf of an anesthesiologist in a medical malpractice case. The case involved a Plaintiff who was extubated following an exploratory surgery and later re-intubated due to continued shallow breathing. Plaintiff alleged that he experienced an episode of hypoxia during the period of time between extubation and re-intubation, which he claimed resulted in a hypoxic brain injury. Ms. Karvis were able to help the jury understand that there was no evidence that the patient experienced hypoxia, let alone a hypoxic brain injury. They suggested an alternative theory that Plaintiff, who had worked in the medical field, was fabricating his symptoms in an attempt to obtain Social Security Disability. Through their experts Ms. Karvis were able to show that Plaintiff's claimed symptoms grew worse over time and that there was no evidence that he actually suffered a hypoxic brain injury. They were able to utilize surveillance video to show the jury that Plaintiff was physically capable of performing activities that he claimed he was unable to perform. Plaintiff's counsel asked the jury to award damages in the amount of $500,000.00-$1 million. The jury returned a unanimous defense verdict in less than thirty minutes.


SANDERS & PARKS DEFENSE VICTORY IN THREE-WEEK MEDICAL MALPRACTICE JURY TRIAL

Shareholders Mandi J. Karvis recently obtained a defense verdict on behalf of a chiropractor in a medical malpractice case. The Plaintiff alleged that she suffered a worsening of a cervical disc herniation at the C5-C6 level due to a chiropractic adjustment, which resulted in the need for a cervical anterior disc fusion at that level. Ms. Karvis were able to help the jury understand that it was not enough for Plaintiff to prove that the chiropractic adjustment caused the worsening of the disc herniation; rather she had to prove that it was a negligently performed chiropractic adjustment that caused a worsening of the herniation. Through their experts, as well as Plaintiff's treating neurosurgeon, Ms. Karvis was able to establish that Plaintiff likely had a herniation before the adjustment and that it would take much less force to further a herniation of a disc that was already herniated. Plaintiff's counsel asked the jury to award his client $795,000.00. After deliberating for about five hours the jury returned a verdict in favor of the chiropractor.


Shareholder Mandi J. Karvis was recently granted Rule 50 Judgment as a Matter of Law on the majority of Plaintiffs' claims in a medical malpractice case against a chiropractor which primarily involved allegations that the chiropractor had engaged in a sexual relationship with a patient. One day four of trial, at the conclusion of Plaintiffs' case, Ms. Karvis was granted Judgment as a Matter of Law on Plaintiffs' claims of professional negligence, negligence per se, breach of fiduciary duty, and punitive damages. The only remaining claim, an allegation of excessive treatment, went to the jury on Day 5 of trial and the jury returned a nominal verdict in favor of Plaintiffs.


In April of 2014, Artie Eaves successfully defended an anesthesia provider in a three-week jury trial in Gila County Superior Court.  Mr. Eaves represented a CRNA who was alleged to have negligently caused the death of a 43 year-old surgical patient following an outpatient hernia repair.  Following surgery, the patient was discharged from the hospital in the late afternoon and was found dead on the living room sofa by his wife and two children that night.  Plaintiffs alleged that the patient died as a result of breathing problems brought on by the surgery and anesthesia.  Plaintiffs argued that it should have been obvious that the patient was at risk for breathing problems based on his course following surgery.  They argued that had the anesthesia provider appreciated the risks and taken steps to ensure that the patient was admitted overnight, the patient would not have died.  Plaintiffs’ counsel asked the jury to award $3.5 million dollars to the family of the patient.  Mr. Eaves argued that the unfortunate loss suffered by the Plaintiffs was not the result of any wrongdoing and that his client had satisfied the standard of care.  Mr. Eaves argued that an early, post-surgical episode during which the patient experienced serious breathing problems resolved and the patient was stable by the time of discharge.  Following a three-week jury trial in Globe, Arizona, the jury deliberated for approximately one hour and returned a verdict in favor of Mr. Eaves’ client.


SETTLEMENT IN NON-FATAL AVIATION ACCIDENT

In March 2013, the Firm favorably settled a case arising out of a July 2010 non-fatal aviation accident at Phoenix's Deer Valley Airport in which the pilot's safety restraint system failed, causing extreme facial injuries in the crash.


SUMMARY JUDGMENT GRANTED BASED ON ERISA PREEMPTION

In November 2012, J. Steven Sparks were awarded summary judgment in favor of their client, Giant Eagle Group Health Insurance, in a complex ERISA litigation matter arising out of an air-ambulance company's effort to recover more than one million dollars for a medical transport. Plaintiff Angel Jet Services, LLC (aka Angel Medflight) filed a lawsuit in the United States District Court seeking to recover an extremely inflated fee for the medical transport of a Giant Eagle member from Monaco to Pittsburgh, Pennsylvania. After the matter was remanded to the Plan Administrator -- at Giant Eagle's request -- and after the reasonable value of the flight was timely paid by Giant Eagle, Plaintiff continued its pursuit of a variety of state law claims. The parties engaged in a course of hard-fought discovery over more than three years and, at the close of discovery, filed cross-motions for summary judgment. The District Court denied Plaintiff's motion finding no merit in the positions asserted by Angel Jet and granted summary judgment to Giant Eagle on the basis that all of Plaintiff's claims were preempted by ERISA.


SUMMARY JUDGMENT GRANTED TO SANDERS & PARKS CLIENT BASED ON LACK OF DUTY

In late 2012,  J. Steven Sparks and Shanks Leonhardt obtained summary judgment for their client after years of hard-fought tort litigation stemming from an airplane crash near Prescott, Arizona. Plaintiffs demanded several hundred thousand dollars in damages but, through the discovery process, Mr. Sparks and Mr. Leonhardt successfully demonstrated that their client owed no duty to Plaintiffs as a matter of law. In granting summary judgment, the court found that neither the relationship between the parties, nor principles of public policy warranted the imposition of a legal duty under Arizona law.


SETTLEMENT IN NON-FATAL AVIATION ACCIDENT SANDERS AND PARKS APPELLATE VICTORY ON IMPORTANT PERSONAL JURISDICTION QUESTION

Shanks Leonhardt won an important appellate decision in a published decision issued by the Arizona Court of Appeals on April 24, 2012. The opinion discussed and clarified Arizona's jurisprudence on personal jurisdiction for foreign manufacturers. After the foreign manufacturer sought review by the Arizona Supreme Court, the Court declined review, leaving the published Appellate decision as the final, and most recent, word on personal jurisdiction in Arizona.


SUPREME COURT DECLINES REVIEW OF OPINION AFFIRMING SANDERS & PARKS' TRIAL COURT VICTORY

Sanders & Parks, P.C. is pleased to announce that the Arizona Supreme Court has declined to review the ruling of the Arizona Court of Appeals that affirmed the trial court's ruling in favor of Sanders & Parks' client, SCF Arizona ("SCF"). SCF is a workers' compensation insurance company that did not have contracts with Canyon Surgery Center and El Dorado Surgery Center (now known as "Tucson Surgery Center") (collectively "the Surgery Centers") to provide services to its injured workers at a reduced or discounted rate as other insurance carriers do.

The case, styled Canyon Surgery Center, et al. v. SCF Arizona, 1 CA-CV 09-0408, involved reimbursements of facility fees for services provided to over 2,100 injured workers from March 2003 through March 2007. In its published opinion, the Court of Appeals affirmed several rulings from the various trial judges who presided over this matter during the lengthy legal battle. After seven years and five months of protracted litigation, the Arizona Supreme Court has vindicated Sanders & Parks' client's legal positions.

The Surgery Centers were two of five original plaintiffs that initially sued to collect their unilaterally-established full-billed charges from SCF. The Surgery Centers' theory was that SCF is a "state agency," was subject to Arizona's Administrative Procedures Act, and that its decision to retain third-party bill review vendor, Qmedtrix, constituted a "rule" that was impermissibly promulgated by SCF. In pre-trial briefings, that theory was rejected in May 2005 by the Honorable J. Richard Gama. This ruling was upheld by the September 16, 2010 Opinion of the Court of Appeals.

Next, the Surgery Center Plaintiffs continued to seek to recover their full-billed charges from SCF under certain contractual and statutory theories and based on bad faith. Again, during pre-trial briefings, the Honorable Timothy J. Ryan rejected those theories for failure to state a claim in January 2006. The Surgery Centers elected not to appeal Judge Ryan's ruling with respect to the bad faith claim. The appellate court confirmed Judge Ryan's rulings on the contractual and statutory claims.

In July 2008, a three-week trial ensued before the Honorable Edward O. Burke. The case was tried by Sanders & Parks lead counsel Mark Worischeck on the remaining counts wherein the Surgery Centers sought payment of their full-billed charges on claims of negligent misrepresentation and unjust enrichment. With respect to the payment of the Surgery Centers' full-billed charges, the trial court concluded that SCF had already paid the Surgery Centers "the reasonable value of their services, if not more."

At the close of Plaintiffs' evidence, Judge Burke granted SCF's motion for judgment on the pleadings and rejected the Surgery Centers' negligent misrepresentation claims. The appellate court confirmed these conclusions, along with the other pre-trial decisions rendered by the superior court.

In November 2008, Judge Burke rendered his decision on the sole remaining claim for unjust enrichment finding that the plaintiffs were entitled to no more than the reasonable value of their services. He also found that SCF's payments, which were based on recommendations from third-party bill reviewer, Qmedtrix, represented the reasonable value for their services "if not more." The appellate court affirmed Judge Burke's conclusion. The Arizona Supreme Court has now declined to review the published decision.

In the opinion, the appellate court held that the surgery centers "were required to prove SCF paid less than a reasonable amount for their services, in which case they could recover the difference under a theory of quantum meruit or unjust enrichment." Canyon Ambulatory Surgery Ctr. v. SCF Arizona, 225 Ariz. 414, 422, ¶ 29, 239 P.3d 733, 741 (App. 2010). The appellate court confirmed that the plaintiffs may measure the reasonable value of their services either by demonstrating "the fair market value of their services" or "the actual cost to them to provide the services, plus a reasonable rate of return." Id. Ms. Verdier stated: "With the supreme court's decision to deny review, this now holds as the standard for cases like this."

In reviewing Judge Burke's conclusions, the appellate court affirmed the trial court's reliance on the undisputed evidence that Canyon accepts 30% or less from 82% of its payors and El Dorado accepts less than 24% from 89% of its payors. Id. at 423, ¶ 31, 239 P.3d at 742. Stated differently, Canyon accepts less than 30 cents on the dollar from most of its customers and El Dorado accepts less than 24 cents on the dollar from most. The appellate court affirmed the trial court's conclusion that "the payments made by SCF, which exceeded 40% of the billed charges, were reasonable under the circumstances." Id. at 423-424, ¶¶ 31, 34, 239 P.3d at 742-743.

Ms. Verdier, who argued the appeal on behalf of SCF, stated that "reasonableness has prevailed." The Appellate Court rejected the Surgery Centers' arguments at oral argument that their charges need not be subject to a review for reasonableness unless and until they are found to be "unconscionable." Ms. Verdier argued that requiring a bill be "unconscionable" before it is required that it be "reasonable" is a preposterous notion and is pleased the appellate court rejected this notion in a published opinion.

The impact of the opinion reaches far beyond the $4.69M in dispute in the Canyon case. The parties had stipulated to try only those claims that were presented between March 31, 2003 and March 31, 2007. For those stipulated claims, SCF had paid $3.59M and the plaintiff surgery centers were seeking an additional $4.69M. By law, SCF is not permitted to direct injured workers away from certain facilities. Thus, despite this litigation, these two Surgery Centers have continued to treat SCF claimants, thereby increasing what they allege to be their "damages."

Thus, the case has far reaching import beyond just the claims tried in July 2008. Indeed, the ruling has an impact even beyond the claims presented by these two non-contracted facilities. During the oral argument in the court of appeals, counsel for the Surgery Centers confirmed that there are facilities all over Arizona that are not subject to a fee schedule and that do not have contracts with workers' compensation carriers that are watching this case. With its ruling, the appellate court has confirmed SCF's right to subject its bills from non-contracted, non-fee scheduled providers to a reasonableness review. The savings to Arizona's employers who must pay for workers' compensation insurance as a result of this ruling are significant.

Mr. Worischeck commented: "The court's ruling strikes a blow to health care providers who seek to impose their unreasonable charges on Arizona's employers."

To read the actual Court of Appeals opinion, click here


ANOTHER SANDERS & PARKS VICTORY IN THE HIGH-TECH INTELLECTUAL PROPERTY ARENA

Rick Bryson obtained a judgment for all damages and injunctive relief sought in a patent infringement case. The firm's client in the case is the world's leading manufacturer of satellite data communications equipment and sought to enforce its patent relating to 8 QAM architecture. The firm obtained a judgment for both damages and injunctive relief.


SANDERS & PARKS DEFENDS AND RESOLVES TWO RELATED, HIGH EXPOSURE EMPLOYMENT CLAIMS FOR PAYMENT OF JUST $1

Rick Bryson successfully defended claims of defamation, false light and related claims in employment discrimination related case. After an EEOC proceeding, two lawsuits involving many depositions, significant discovery and plaintiffs' settlement demands in the high six figures and seven figures, the defendants agreed to a judgment and dismissal of the cases for $1.


UNANIMOUS DEFENSE VERDICT FOR CITY OF PHOENIX IN BUS ACCIDENT CASE

Jeff Smith and Robin Burgess received a unanimous defense verdict on October 22, 2009 in a traumatic personal injury matter originally brought against the City of Phoenix. The Plaintiff alleged that she was run over by a City of Phoenix bus, and served a notice of claim for $750,000. During closing, Plaintiff asked for in excess of $500,000. The jury deliberated for ten minutes and found unanimously for the defense.


TWO SETTLEMENTS OF FATAL AVIATION ACCIDENTS

Mark Worischeck negotiated settlements on behalf of the surviving family members of two men killed in separate aviation accidents. In the first, a passenger in a single-engine kitplane was killed when the aircraft struck high tension power lines. Mr. Worischeck brought a lawsuit on behalf of the passenger's surviving wife and two young children, and settled the case for a confidential amount after more than a year of litigation.

In the second case, a student-pilot on a training flight was killed in Oregon when the port wing separated in flight. Defendants vigorously contested liability. The highly-favorable settlement will provide much-needed stability for the decedent's survivors, including his wife and two daughters.