Opinion
No. 1 CA-CV 17-0443
06-12-2018
AMY AMARI, Plaintiff/Appellant, v. SCOTTSDALE HEALTHCARE HOSPITALS, et al., Defendants/Appellees.
COUNSEL Keller Rohrback LLP, Phoenix By Mark D. Samson, Alison E. Chase (argued) Counsel for Plaintiff/Appellant Snell & Wilmer L.L.P., Phoenix By Barry D. Halpern, Colin P. Ahler (argued) Counsel for Defendants/Appellees
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CV2016-003093
The Honorable Karen A. Mullins, Judge
AFFIRMED
COUNSEL Keller Rohrback LLP, Phoenix
By Mark D. Samson, Alison E. Chase (argued)
Counsel for Plaintiff/Appellant Snell & Wilmer L.L.P., Phoenix
By Barry D. Halpern, Colin P. Ahler (argued)
Counsel for Defendants/Appellees
MEMORANDUM DECISION
Judge Paul J. McMurdie delivered the decision of the Court, in which Presiding Judge Diane M. Johnsen and Judge David D. Weinzweig joined. McMURDIE, Judge:
¶1 Amy Amari filed a class action complaint against Scottsdale Healthcare Hospitals ("HonorHealth"), alleging negligence, negligent hiring, and vicarious liability. Amari appeals the superior court's orders dismissing her complaint with prejudice and without leave to amend, and denying her post-judgment motion under Arizona Rule of Civil Procedure 59. For the following reasons, we affirm.
This appeal involves only Amari's individual claims. Amari raised no arguments on appeal regarding class certification or class claims.
FACTS AND PROCEDURAL BACKGROUND
¶2 In September 2014, Amari had inpatient surgery at HonorHealth. HonorHealth later learned a surgical technician employed by the hospital at the time of Amari's surgery was under investigation in another state for the misuse of drugs intended for patient use. On February 29, 2016, HonorHealth thus notified Amari by letter she had possibly been exposed to HIV or hepatitis B and C during the surgery and should have her blood tested. On March 8, 2016, Amari had her blood tested and two days later learned the results were negative.
¶3 In May 2016, Amari filed a complaint against HonorHealth, alleging HonorHealth breached the duty of care it owed Amari by negligently hiring the surgical technician and that HonorHealth is vicariously liable for the harm caused by the technician. Approximately one week later, Amari filed an amended complaint to correct HonorHealth's name. Amari's first amended complaint alleged HonorHealth's letter caused her "unavoidable concern and anxiety" and did not allege any additional emotional distress. On June 7, 2016, HonorHealth moved to dismiss Amari's first amended complaint under Rule 12(b)(6) for failure to state a claim, arguing in part that "there can be no recovery for mental disturbance unless physical injury, illness or other physical consequence[s] accompany it, or physical harm develops as a result of the plaintiff's emotional distress." See DeStories v. City of Phoenix, 154 Ariz. 604, 608 (App. 1987). The parties then agreed to allow Amari to file a second amended complaint, and Amari filed her second amended complaint on July 1, 2016.
¶4 In her second amended complaint, Amari sought to "hold [HonorHealth] liable for their failure to conduct a proper and reasonable investigation into the background and character of their employees prior to hiring them and the resulting physical and emotional harm that their failure to do so caused [Amari]." (Emphasis added). Amari alleged negligence, negligent hiring, and vicarious liability claims and that HonorHealth's breach of duty caused Amari to suffer "foreseeable and unavoidable concern, anxiety, annoyance, and inconvenience." Amari also alleged she "lost sleep over several nights processing the news that she may well have been exposed to the blood or bodily fluids of an HIV positive individual . . . ."
¶5 HonorHealth again moved to dismiss Amari's then-second amended complaint. HonorHealth argued Amari "failed to plead facts showing that she suffered any actual, recoverable emotional or physical damages" and that, accordingly, Amari could not state a viable claim against HonorHealth. At oral argument on HonorHealth's motion, the superior court stated it was concerned about whether Amari had alleged recoverable damages because the court did not "think losing a couple nights' sleep is enough." Amari asked for permission to amend her complaint again to allege with more specificity the damages she suffered. The court dismissed the vicarious liability claim at the close of oral argument and, after taking the matter under advisement, dismissed the remaining claims without granting Amari leave to amend, finding amendment would be futile.
¶6 Amari then moved to alter or amend the judgment pursuant to Rule 59. Amari argued the superior court erred by dismissing her complaint without granting her leave to amend based on the court's conclusion that further amendment would be futile. Amari attached a detailed affidavit to her Rule 59 motion describing the emotional distress she suffered from when she received the letter until approximately one month after getting the negative test results, which included sleeplessness, difficulty concentrating, hyperventilating, sweating, anxiousness, nausea, headaches, and anger. Amari also stated she experienced similar distress a few months later when she learned the surgical technician tested positive for HIV. After receiving HonorHealth's response and holding oral argument on Amari's Rule 59 motion, the superior court denied the motion, explaining Amari's second amended complaint was dismissed "based upon the lack of a physical intrusion and the lack of any attendant bodily harm" and that allowing Amari to further amend her complaint "would be an exercise in futility." Amari timely appealed, and we have jurisdiction pursuant to Arizona Revised Statutes sections 12-120.21(A)(1) and -2101(A)(1).
DISCUSSION
A. We Review De Novo If a Complaint Should Be Dismissed Under Rule 12(b)(6).
¶7 We review de novo the superior court's dismissal of a complaint under Rule 12(b)(6). Zubia v. Shapiro, 243 Ariz. 412, 414, ¶ 13 (2018). We assume the truth of the well-pled factual allegations in the complaint and will affirm the dismissal only if the "plaintiffs would not be entitled to relief under any interpretation of the facts susceptible of proof." Fid. Sec. Life Ins. Co. v. State, Dep't of Ins., 191 Ariz. 222, 224, ¶ 4 (1998).
¶8 "Arizona courts have long held that a claim for negligent infliction of emotional distress requires a showing of bodily harm." Monaco v. HealthPartners of S. Ariz., 196 Ariz. 299, 302, ¶ 7 (App. 1999). In 1979, our supreme court held physical impact or injury is not a necessary predicate of a claim for emotional distress. Keck v. Jackson, 122 Ariz. 114, 115 (1979). Absent physical impact or injury, however, mental anguish must manifest physically to be recoverable. Keck, 122 Ariz. at 115; Quinn v. Turner, 155 Ariz. 225, 226 (App. 1987). Long-term physical illness or mental disturbance may also "constitute[] sufficient bodily harm to support a claim of negligent infliction of emotional distress." Monaco, 196 Ariz. at 303, ¶ 8. This court has applied the Restatement (Second) of Torts § 436A, cmt. c (1965) ("the Restatement"), which provides:
The rule [relating to physical harm that results from emotional disturbance] applies to all forms of emotional disturbance, including temporary fright, nervous shock, nausea, grief, rage, and humiliation. The fact that these are accompanied by transitory, non-recurring physical phenomena, harmless in themselves, such as dizziness, vomiting, and the like, does not make the actor liable where such phenomena are in themselves inconsequential and do not amount to any substantial bodily harm. On the other hand, long continued nausea or headaches may amount to physical illness, which is bodily harm; and even long
continued mental disturbance, as for example in the case of repeated hysterical attacks, or mental aberration, may be classified by the courts as illness, notwithstanding their mental character.See Monaco, 196 Ariz. at 302, ¶ 8; Burns v. Jaquays Mining Corp., 156 Ariz. 375, 379 (App. 1987) (relying on the Restatement to conclude "transitory physical phenomena" such as crying, headaches, and insomnia "are not the type of bodily harm which would sustain a cause of action for emotional distress").
B. The Superior Court Did Not Err by Finding the Blood Draw Did Not Satisfy the Physical Impact Requirement.
¶9 Amari first argues she may recover emotional distress damages because the blood draw she underwent after receiving the letter, by itself, was a sufficient physical injury. Under the "impact theory," a plaintiff may recover emotional distress damages "when the plaintiff has sustained a contemporaneous physical impact or injury." Keck, 122 Ariz. at 115; Ball v. Prentice, 162 Ariz. 150, 152 (App. 1989) ("[T]here [is] little doubt that one could recover damages for emotional distress and accompanying physical injury as a result of a tortfeasor's negligence when one was physically involved in an accident and suffered some impact triggering the emotional responses."). Amari maintains that the blood draw satisfies the physical impact test, and therefore the superior court erred by finding it was insufficient to "predicate a claim for emotional distress damages."
¶10 The superior court rejected the blood draw as a sufficient physical intrusion:
Although the cases mostly agree that recovery for mental anguish requires proof of an accompanying physical harm, the cases vary widely concerning the character of evidence sufficient to demonstrate such harm. Here, [Amari] argue[s] that the blood test offered by [HonorHealth] constitutes physical intrusion. However, the administration of a mere blood test is de minimis non cura[t] lex and thus does not satisfy the physical intrusion requirement.We agree with the superior court that Amari cannot recover emotional distress damages predicated on the blood test. Although the "impact" necessary to recover under the impact theory may be slight, see Ball, 162 Ariz. at 152, this court has previously declined to interpret diagnostic blood testing as a "bodily injury," Transamerica Ins. Co. v. Doe, 173 Ariz. 112, 116 (App. 1992).
"The law does not concern itself with trifles." De Minimis Non Curat Lex, Black's Law Dictionary (10th ed. 2014).
¶11 Transamerica concerned the insurance claims of medical professionals who underwent blood testing for HIV after they were exposed to HIV-positive blood while assisting injured motorists in a serious car accident. We held the medical professionals did not sustain "bodily injury" under the terms of their automobile insurance policy and were not entitled to recover damages, including for emotional distress. 173 Ariz. at 112-13, 116. We interpreted "bodily injury" under the terms of the insurance policy, based on the term's ordinary meaning, to exclude "the physical invasion of their bodies involved in drawing blood for AIDS testing." Id. at 116. The court explained:
The Transamerica court relied on Burns and DeStories to also conclude the plaintiffs did not sustain "compensable bodily injury" based on their exposure to HIV-positive blood. Transamerica, 173 Ariz. at 115. Both Burns, 156 Ariz. at 376, and DeStories, 154 Ariz. at 605, examined whether plaintiffs could recover emotional distress damages based on exposure to asbestos.
Appellants have provided no authority to support the proposition that a litigant can transform the threat of future harm into present bodily injury by undergoing common diagnostic testing, and we are aware of no such authority. We could conclude that diagnostic testing, utilized to determine whether bodily injury occurred, is itself bodily injury only by extending the meaning of "bodily injury" far beyond its accepted bounds.Id. We agree with the rationale in Transamerica and the superior court's finding here that Amari's blood test was an insufficient "physical invasion" to support a claim for emotional distress damages. See also R.J. v. Humana of Florida, Inc., 652 So. 2d 360, 364 (Fla. 1995) ("[W]e find that the touching of a patient by a doctor and the taking of blood for ordinary testing would not qualify for a physical impact [to satisfy the requirements of the impact rule]."). The superior court did not err by finding the blood test did not satisfy the physical impact test.
C. The Superior Court Did Not Err by Dismissing Amari's Complaint.
¶12 Amari next argues the superior court erred by denying her request to amend her complaint because, she maintains, an amendment would have made clear that her emotional distress manifested itself physically and resulted in a long-term mental disturbance. See Keck, 122 Ariz. at 115 (even without a physical impact, emotional distress damages are recoverable if the plaintiff's "shock or mental anguish" manifests as physical injury); Monaco, 196 Ariz. at 303, ¶ 8 ("[L]ong-term physical illness or mental disturbance[] constitutes sufficient bodily harm to support a claim of negligent infliction of emotional distress."). At oral argument on HonorHealth's Motion to Dismiss the second amended complaint, and again in her Rule 59 motion, Amari asked the court for permission to amend her complaint. In ruling on Amari's Rule 59 motion, the superior court denied Amari leave to amend because amendment would be futile, explaining the "fatal defect" was the "lack of a physical invasion or intrusion resulting in some bodily harm." The court explained that an amendment would be futile not due to the "paucity of [Amari's] allegations of emotional distress, but [because] (1) she did not suffer any physical intrusion of bloodborne pathogens of concern here, i.e. hepatitis B, hepatitis C, or HIV, and (2) the subsequent blood test could not be relied upon to establish a physical intrusion."
We note Amari styled her Rule 59 motion as a motion to alter or amend the judgment. See Ariz. R. Civ. P. 59(d). However, she cited grounds for granting a new trial as support for the motion, see Ariz. R. Civ. P. 59(a), and appealed from the court's order "denying her Motion for New Trial." Accordingly, we treat the motion as a motion for new trial. See Hegel v. O'Malley Ins. Co., Inc., Agents and Brokers, 117 Ariz. 411, 412 (1977) ("[I]rrespective of the title of a motion, if its substance shows clearly that it seeks relief under Rule 59(a) on the grounds set forth in that rule with appropriate reference to the rule as authority for the motion, the motion must be treated as a motion for new trial under Rule 59(a).").
¶13 The superior court incorrectly reasoned that absent impact, no amount of emotional distress is compensable. See Keck, 122 Ariz. at 115; Quinn, 155 Ariz. at 227. To the contrary, emotional distress damages are recoverable absent impact if the emotional distress manifests itself physically or results in long-term physical illness or mental disturbance. Monaco, 196 Ariz. at 302-03, ¶¶ 7-8. We will affirm the superior court, however, "if its ruling was 'correct for any reason, even if that reason was not considered' by the court." Parkinson v. Guadalupe Pub. Safety Ret. Local Bd., 214 Ariz. 274, 277, ¶ 12 (App. 2007) (quoting Glaze v. Marcus, 151 Ariz. 538, 540 (App. 1986)).
¶14 Amari conceded at oral argument before this court that her 23-paragraph affidavit attached to her Rule 59 motion reflects the universe of additional allegations she would include if permitted to again amend her complaint. Accordingly, we treat Amari's affidavit as the proposed amendment. We review her Rule 59 motion and the attached affidavit de novo to determine if Amari is entitled to relief under any interpretation of the facts, assuming the truth of the facts as alleged. See Zubia, 243 Ariz. at 414, ¶ 13.
¶15 Based on her affidavit, Amari has not stated a claim for emotional distress damages. In her affidavit, Amari stated:
In the ten days or so between receiving the notification letter and getting my blood test results, I was emotionally torn by the news almost every minute I was awake. Since I was only able to sleep intermittently during that time, the emotions were almost constant. I was scared; I felt at times like I was in shock; I was unbelievably anxious; I was enraged. Physically, I was nauseous, I got headaches, I couldn't sleep, I would startle at noises, even things like my phone ringing. It was a truly awful time.Amari's affidavit also stated she suffered renewed fear, anxiety, anger, nausea, sleeplessness, headaches, and sweating beginning in June 2016, after learning the surgical technician was HIV positive. She has not alleged she suffered "long-term physical illness or mental disturbance" or physical manifestations of distress sufficient to constitute "bodily harm." See Monaco, 196 Ariz. at 303, ¶ 8. Rather, she has only alleged "transitory physical phenomena" that cannot sustain a cause of action for emotional distress. See Burns, 156 Ariz. at 379; Restatement (Second) of Torts § 436A cmt. c (1965).
¶16 Burns is instructive. There, plaintiffs who had been exposed to asbestos fibers, but not diagnosed as having an illness, sought emotional distress damages. Burns, 156 Ariz. at 377. A medical expert stated the plaintiffs suffered from emotional distress that manifested itself "in a variety of disorders affecting normal sleep patterns, normal gastrointestinal functions, alterations in the ability to cope with other life stress, manifestations of anger, headaches, personality disorders, sexual dysfunction, and other adverse health effects which in no fashion could be termed trivial, insignificant, or of only minor or temporary inconvenience . . . ." Id. at 378. Nevertheless, this court affirmed dismissal of the plaintiffs' complaint because there was no evidence the alleged "psychosomatic injuries," including headaches, acid ingestion, weeping, muscle spasms, depression, and insomnia, "were other than transitory physical phenomena . . . and they are not the type of bodily harm which would sustain a cause of action for emotional distress." Id. at 379. The physical manifestations of Amari's distress are less than those complained of by the plaintiffs in Burns and likewise cannot sustain a cause of action for emotional distress. Cf. Quinn, 155 Ariz. at 226 (three-year-old child stated a cause of action for emotional distress where he displayed behavioral changes and was treated by a psychologist for anxiety and a dentist for a teeth-grinding disorder).
¶17 Although Amari states she continued to experience distress at the time she wrote the affidavit in January 2017, she also states that after she received the letter with the negative blood test results, "the frequency of the reactions receded, but did not go away." Similarly, she stated that her distress increased after learning of the surgical technician's positive-HIV status, but she eventually "got [her] emotions back to the baseline again," and that "the anger and fear [were] not daily visitors, but [she] seldom [went] more than a week or ten days without it intruding on [her] thoughts." We do not discount the truth of Amari's affidavit. Rather, Amari has not alleged any facts sufficient to prove her distress has resulted in long-term physical or mental illness that is more than transitory or inconsequential. See Gau v. Smitty's Super Valu, Inc., 183 Ariz. 107, 109 (App. 1995) (jury verdict reversed and emotional distress claim dismissed based on insufficient evidence holding two months of sleep disturbance and bad dreams that subsided without medical treatment were transitory physical phenomena); see also Transitory, Merriam-Webster's Collegiate Dictionary 1329 (11th ed. 2012) ("[T]ending to pass away; not persistent; of brief duration."); cf. Monaco, 196 Ariz. at 303, ¶¶ 11-12 (plaintiff experienced "substantial, long-term emotional disturbances" when his incorrect medical treatment resulted in a substantial increased risk of contracting leukemia, he was treated by a psychologist for anxiety for at least six months, and had been diagnosed with post-traumatic stress disorder which would never be cured).
¶18 We recognize that neither Burns nor Gau are Rule 12(b)(6) cases. Burns was upon review of a grant of summary judgment; Gau was an appeal from an adverse jury verdict. Amari acknowledges, however, that her affidavit contains all the facts she would have pled had she been given another opportunity to amend her complaint. After our review of the Rule 59 motion and the affidavit, we conclude Amari has not alleged her emotional distress resulted in long-term physical illness or mental disturbance or that her distress gave rise to more than transitory physical phenomena. Therefore, we hold Amari has not stated a claim for emotional distress damages or shown that further amendment would not be futile. See Swenson v. County of Pinal, 243 Ariz. 122, 128, ¶ 21 (App. 2017) (leave to amend may be denied if amendment would be futile).
We review the superior court's denial of a motion for new trial and denial of a motion for leave to amend for an abuse of discretion. Swenson v. County of Pinal, 243 Ariz. 122, 128, ¶ 21 (App. 2017) (motion for leave to amend); Mullin v. Brown, 210 Ariz. 545, 547, ¶ 2 (App. 2005) (motion for new trial). "Leave to amend is discretionary, but amendments will be liberally allowed; trial on the merits of the claim is favored . . . ." Owen v. Superior Court, 133 Ariz. 75, 79 (1982). Leave to amend may be properly denied after repeated failure to cure the deficiencies. Owen, 133 Ariz. at 79. Amari was on notice of the deficiency in her complaint based on the motions to dismiss filed after she filed both her first and second amended complaints. Amari argued for the first time in her Rule 59 motion that her emotional distress manifested itself physically and with long-term consequences, causing "bodily harm." Issues raised for the first time in a motion for new trial are generally waived. Conant v. Whitney, 190 Ariz. 290, 293 (App. 1997). Although we could decide this appeal on the basis that Amari's newly-raised arguments in the Rule 59 motion were untimely, we elect to decide the issue on the merits. Adams v. Valley Nat'l Bank of Ariz., 139 Ariz. 340, 342 (App. 1984) (the court prefers to resolve cases on the merits).
CONCLUSION
¶19 For the foregoing reasons, we affirm.