Felder v. Physiotherapy
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IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE KENNETH W. FELDER, Plaintiff/Appellee, v. PHYSIOTHERAPY ASSOCIATES, Defendant/Appellant. ) ) ) ) ) ) ) ) ) ) ) 1 CA-CV 05-0719 DEPARTMENT C O P I N I O N FILED 5-22-07 Appeal from the Superior Court in Maricopa County Cause No. CV1998-14006 The Honorable Paul A. Katz, Judge AFFIRMED COPPLE, BOEHM, & MURPHY, P.C. By Scott E. Boehm Phoenix and KELLY LAW OFFICES By Timothy F. Kelly Michael P. Massucci Attorneys for Plaintiff/Appellee MARISCAL, WEEKS, McINTYRE & FRIEDLANDER, P.A. By Timothy J. Thomason Michael J. Plati Attorneys for Defendant/Appellant Crown Point, Indiana Phoenix I R V I N E, Presiding Judge ¶1 Physiotherapy court s rulings, Kenneth Felder. the jury to Associates judgment, and appeals award of from damages the to trial Appellee We find that the trial court properly allowed determine Felder s professional baseball player. lost earning capacity as a Therefore, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 In 1992, the Milwaukee Brewers drafted Felder in the first round of the Major League draft. He signed a contract to play in the Brewers minor league system. From 1992 through 1996, Felder progressed in his career as the Brewers promoted him from the rookie league to the Class A level, AA level, and up to the AAA level. ¶3 In 1996, Felder injured his elbow. Although the injury affected his throwing and hitting, he was twice named Player of the Week when he played in the AAA level in New Orleans. He healed during the off-season, but tore an elbow ligament during spring training in 1997. ¶4 Felder had surgery to repair the recuperated for the rest of the 1997 season. ligament and The Brewers sent Felder to Physiotherapy for physical rehabilitation and paid his rehabilitation costs. Physiotherapy is a national physical rehabilitation company with a number of major and minor league baseball players among its clientele. 2 ¶5 About seven-and-a-half months into his rehabilitation, Felder s elbow was improving. administered at Physiotherapy He passed a Brewers physical in January 1998. In February 1998, shortly before the accident at issue here, the Brewers signed Felder to a salary addendum contract for the 1998 minor league season. ¶6 After surgeon, one conferring of with Physiotherapy s the Brewers physical and Felder s therapists, Keith Kocher, decided that it was time for Felder to begin hitting. Eventually, at Physiotherapy s Tempe hitting balls in the batting cage. records did not indicate that location, Felder began Physiotherapy s training Felder was restricted practicing either off of tees or a pitching machine. to He took batting practice at least three times a week, during each of his therapy sessions. Witnesses testified that the batting cage was not designed or maintained for batting practice. The architect who designed Physiotherapy s facility testified that the batting cage was there to allow rehabilitating pitchers to throw balls; it was not designed, intended, or safe for batting. Former Physiotherapy employee John Fierro testified that Physiotherapy had not established a maintenance mound or the batter s box. show that Physiotherapy schedule for the pitching Moreover, there were no records to had purchased 3 dirt and maintenance supplies for the area.1 ¶7 On February 25, 1998 Felder arrived at Physiotherapy for his scheduled rehabilitation. practiced throwing. Kocher then He warmed up, stretched and told Felder to take some batting practice.2 ¶8 Felder hit a ball that ricocheted off of a concrete lip in the batter s box, bounced back up at him, and struck his left eye. pain. His eye bled. He felt nauseous, dizzy and was in For the next two days, he coughed up blood. ¶9 Dr. Alan Gordon, Felder s ophthalmologist and retina specialist, testified that Felder sustained a fracture of the orbital bone below his eye, a rupture of his cornea, subretinal hemorrhaging, and bleeding into his sinus cavity. Irremediable retinal damage left him with a blind spot in the middle of his vision. He also suffers from blurry vision that worsens in bright light, and he has constant headaches. ¶10 The injury initially left Felder with 20/400 vision in his left eye, but it eventually improved to 20/40 plus. Felder has less than a 1% risk of completely losing his vision in that 1 Kocher maintenance light most Schoonover, P.2d 27, 28 2 disagreed with the testimony about the design and of the batting cage. We view the evidence in the favorable to sustaining the judgment. Paul Inc., v. Ram Constr., Inc., 129 Ariz. 204, 205, 630 (1981). Kocher s and Felder s testimony differed on this point. 4 eye due to subretinal neovascularization, the growth of new blood vessels that can leak fluid under the retina. ¶11 About a week after he injured his eye, Felder reported to the Brewers spring training camp. He failed his physical because of his eye injury and the team sent him away. returned to the Brewers training facility two more times. time, they told him to leave. him from his contract. He Each The Brewers subsequently released Felder filed suit against Physiotherapy in August 1998. ¶12 At the first trial in 2000, players agent Slade Mead was Felder s expert witness on the issue of damages. Although he opined that Felder would have made it to the major leagues and as to the potential length of Felder s major league career, Mead conceded that his opinion was speculative. Nevertheless, the jury found in favor of Felder and determined his damages to be $8,000,000. The jury concluded that Felder was 25% at fault for the accident, so the award was reduced to $6,000,000. ¶13 On reasons. jury on appeal, we reversed and remanded for several First, the trial court erred by only instructing the general negligence and not traditional premises liability law. on negligence based on Second, the evidence Felder presented in support of his claim for lost earnings from major league baseball was too speculative. present stronger evidence on remand. 5 We required Felder to We stated: [Felder] may be able to present stronger evidence on remand regarding his chances of playing major league baseball and his projected earnings as a major leaguer. We are not holding that a minor league player can never prove a loss of earning capacity as a probable major league player. But for the guidance of the court on remand, it is our conclusion that the evidence presented by Felder in the first trial was too speculative to support damages for lost earning capacity as a major leaguer. The Arizona Supreme Court denied Felder s Petition for Review. ¶14 During jury selection at the Physiotherapy struck S.R., a Hispanic woman. second trial, Felder challenged that strike as being race based in violation of S.R. s equal protection rights as articulated in Batson v. Kentucky, 476 U.S. 79 (1986). Physiotherapy contended that it struck S.R. because she testified that she had a friend who suffered a knee injury and could no longer play sports. Physiotherapy felt that this friendship could exert an undue influence over S.R. ¶15 In response to a question during voir dire, S.R. said: I had a friend in junior high [school] that had to have several surgeries done on her knee. couldn t play after that. She played basketball. She S.R. stated that this experience would not cause her to identify with either party in the case. ¶16 Finding no race-neutral explanation for the strike, the trial court granted Felder s Batson challenge and reinstated 6 S.R. to the jury.3 ¶17 At the second trial, Al Goldis testified as an expert witness for Felder about whether Felder would have played in the major leagues and the expected length of his career. At the time of trial, Goldis was the special assistant to the general manager of several major experience the in New league York Mets and teams. drafting, He scouting major league baseball teams. had had and previously worked twenty-seven developing years players for of for Goldis stated that he was not paid to testify. ¶18 Goldis reviewed the Brewers pre-draft scouting reports and minor league coaching reports about Felder. He noted that the Brewers had promoted Felder all the way up from the rookie league to the AAA level, and that his next step would have been the major leagues. Despite some conflicting reports from the minor league coaches regarding Felder s ability, Goldis testified to a reasonable degree of certainty that not only would Felder have made it to the major leagues, but that he would have been an impact player.4 3 Ultimately, S.R. did not participate in deliberations. She was permitted to leave the jury for health-related reasons after Felder s opening statement. 4 An impact player is defined as a player who is expected to hit home runs and who other teams would pitch around. Teams recruit impact players because baseball fans pay to see home run hitters. 7 ¶19 Goldis also compared Felder to major league players who hit fifteen home runs or more per season from 1981 1990. Goldis opined that Felder had more power than Frank Thomas, a player that Goldis had drafted. Goldis stated that he could make and comparisons between degree of certainty. Felder Thomas to a reasonable Given that Thomas had been playing for approximately seventeen years as of the date of trial, Goldis testified that Felder s career would have lasted between twelve and fifteen years. ¶20 In considering Physiotherapy s motion for partial summary judgment on the lost earnings claim, the court made the following statements. I don t have any problem with Mr. Goldis coming in as the more proficient expert on baseball talent, less of a speculative witness on the issue of baseball talent. . . . I think Goldis is a better person to address the issues of concern expressed by the Court of Appeals on the issue of likelihood or unlikelihood of making it into the pros. ¶21 The jury heard that Felder received some benefits usually afforded to major league players. of the When Felder injured his elbow in 1997 he was treated by a doctor and trainer who were Brewers assigned paid for to the work with surgery on rehabilitation at Physiotherapy. major league Felder s players. elbow and for The his Although it would have cost the Brewers less to just release Felder than it did to keep him 8 on the AAA team and to pay his sports rehabilitation costs, they did not terminate their relationship with Felder until his eye injury rendered him permanently incapable of playing about economic professional baseball. ¶22 Felder also had Mead testify again damages and the range of player salaries. Mead testified that he knew who Felder was even though he was not Felder s agent, because as a first-round draft choice, Felder was a very highprofile baseball player back when . . . he was being drafted and coming out of [Florida State University]. ¶23 In calculating Felder s expected earnings, Mead selected two comparable minor league players, Jeremy Burnitz and Geoff Jenkins, who moved on to the major leagues. Like Felder, Burnitz and Jenkins were college outfielders, first-round draft picks, power hitters, and played for the Brewers. presented evidence of how Felder s differed from Burnitz and Jenkins. minor league Mead also performance Mead valued a seven year career for Felder at $27,790,440. ¶24 In response, Physiotherapy presented two experts who testified that Felder did not have a bright future in baseball. Eddie Epstein worked for several teams in major league baseball and evaluates players performance by statistical calculation. Steve Phillips was formerly General Manager of the New York 9 Mets. Both testified that Felder s chances of making the major leagues were slim. ¶25 Physiotherapy also sought to introduce the testimony of former Diamondbacks executive Ralph Nelson. charge of the Physiotherapy Diamondbacks offered Nelson s Nelson was in expansion draft testimony to in rebut 1997. Mead s assertion that the reason no team signed Felder after he was outrighted, meaning that he was removed from the Brewers 40man roster, was because in 1997 it was common knowledge within the baseball industry that Felder was injured.5 Physiotherapy sought to introduce Nelson s testimony because he would have testified that the Diamondbacks chose not to sign Felder for reasons unrelated to any injuries that he may have had. ¶26 The trial court excluded Nelson s testimony because Phillips did not say that he relied on Nelson s testimony to formulate his opinions, the scope of Nelson s testimony pertained to a collateral matter and Nelson s testimony might 5 Major league baseball uses a 25-man roster and a 40-man roster. The 25-man roster lists the players who are on the major league team. The 40-man roster includes everyone on the 25-man roster, plus 15 players whom the major league team wishes to protect from being drafted by other teams. Players on the 40-man roster are members of the Players Association, which is the players union. Association members are governed by the terms of the Collective Bargaining Agreement. The Agreement s terms set broad guidelines which establish how a player is treated by a major league franchise with regard to travel, accommodations, and salary structure. Felder was on the 40-man roster repeatedly from October or November 1994 until March 14, 1997. 10 rely on hearsay rather than his own observations. In addition, the court remarked that Nelson s proposed testimony about the Diamondbacks reasons for not signing Felder could produce testimony that would be duplicative of Phillips testimony. See Ariz. R. Civ. P. 26(b)(4)(D). ¶27 Physiotherapy later filed a motion for judgment as a matter of law on Felder s claim of negligence predicated on premises liability, a motion for partial judgment as a matter of law as to whether Felder was entitled to damages because of the risk of future neovascularization and a motion for partial judgment as a matter of law on Felder s claim of lost income as a major league baseball player. ¶28 The court denied the motion for judgment as a matter of law which alleged that Felder was a trespasser. The court also prohibited Felder from seeking special damages for future medical care or for damages resulting from any macular degeneration but permitted Felder to seek general damages for the present and future continuing anxiety about the injury and the possibility that he could lose his sight. ¶29 The court also denied the motion for partial judgment as a matter of law regarding Felder s claim of lost earnings from major league baseball. In considering the motion, the trial court remarked that while Felder had not already made it to the major leagues, the only remaining chance that [he] had 11 to make [it into] Major League baseball was taken away from him. ¶30 The court concluded that there was sufficient evidence presented by the close of Felder s case that would allow reasonable jurors to differ about whether Felder would have made it into the major leagues, the length of his major league career and the range of his compensation. Regarding the unique role of the jury, the court remarked, juries are allowed to find in the middle and to look at all of the evidence and don t have to go with either the plaintiff or the defendants or with management or the player. The court declined to substitute its judgment for the jury s, and added [t]here is sufficient evidence to allow the jury to consider [Felder] as a potential Major League baseball player. ¶31 The court added that the jury could find that Felder could have remained in the minor leagues as an organizational player for years, or that he could have made it to the major leagues but would never receive more than the minimum annual salary, or some other result. In any case, the jury could reasonably find the fact of damages from Felder s injury. The court stated that should the jury determine that Felder would have made it to the major leagues, we have statistics and information with respect to the longevity of players once they 12 reach it . . . based upon age and statistics. Thus, the court denied the motion as to Felder s lost earnings claim. ¶32 The Felder 30% second at Physiotherapy remittitur. fault, timely jury found resulting filed its $7,000,000 in an motion The court denied that motion. in award for damages, of a with $4,900,000. new trial or Physiotherapy timely appealed. DISCUSSION ¶33 Physiotherapy raises several issues on appeal. First, it argues that the trial court erred by denying its motion for judgment as a matter of law on Felder s lost earnings claim. Second, it contends that the trial court erred by not granting its motion for judgment as a matter of law on the anxiety from the risk challenges of neovascularization several of the trial claim. court s Third, Physiotherapy evidentiary rulings. Fourth, it argues that the trial court did not comply with the rule that only one expert may testify for each issue. R. Civ. P. 26(b)(4)(D). See Ariz. Fifth, Physiotherapy challenges the court s grant of Felder s Batson motion and alleges that this error deprived it of one of its peremptory strikes. We discuss each issue below. I. LOST EARNINGS CLAIM ¶34 Physiotherapy contends that the trial court erred by denying its motion for judgment as a matter of law regarding 13 Felder s lost earnings claim. Physiotherapy asserts that the evidence of whether Felder would have reached the major leagues, the length of his career and the calculation of his earnings was just as speculative as the evidence Felder had presented in the first trial. ¶35 his Felder evidence rejects was Physiotherapy s speculative and characterization argues that the that expert testimony he presented at the second trial was sufficient to prove his damages to a reasonable certainty. ¶36 We review the trial court s ruling on a motion for judgment as a matter of law de novo. Monaco v. HealthPartners of S. Ariz., 196 Ariz. 299, 302, ¶ 6, 995 P.2d 735, 738 (App. 1999). Judgment as a matter of law lies where there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue. Ariz. R. Civ. P. 50(a). In other words, the trial court properly grants the motion if the facts produced in support of the 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. Orme Sch. v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990). ¶37 Physiotherapy argues that the evidence fails to provide a sufficient evidentiary basis for a jury to find that Felder has a claim for lost 14 earnings. Specifically, Physiotherapy contends that the trial court erred as a matter of law by failing to find that the evidence was speculative and therefore insufficient to support a claim for lost earnings as a matter of law. ¶38 Past and future lost wages are an appropriate measure of damages under Arizona law. Lewis v. N.J. Riebe Enters., Inc., 170 Ariz. 384, 397, 825 P.2d 5, 18 (1992); see also Bryant v. Silverman, 146 Ariz. 41, 47, 703 P.2d 1190, 1196 (1985) ( Thus, Arizona allows unlimited recovery for actual damages, expenses for past and prospective medical care, past and prospective pain and suffering, lost earnings, and diminished earning capacity. ). uncertainty recovery. as to Once the right to damages is established, the amount of damages does not preclude Lewis, 170 Ariz. at 397, 825 P.2d at 18. This is simply a recognition that doubts as to the extent of the injury should be resolved in favor of the innocent plaintiff and against the wrongdoer. But it cannot dispel the requirement that the plaintiff s evidence provide some basis for estimating his loss. This court stated in McNutt Oil & Refining Co. v. D Ascoli, 79 Ariz. 28, 281 P.2d 966 (1955), that conjecture or speculation cannot provide the basis for an award of damages, and said in Martin v. LaFon, [55 Ariz. 196, 100 P.2d 182 (1940)] that the evidence must make an approximately accurate estimate possible. Gilmore v. Cohen, 95 Ariz. 34, 36, 386 P.2d 81, 82 (1963). The evidence required will depend on the individual circumstances 15 of each case and, although absolute certainty is not required, the jury must be guided by some rational standard. Short v. Riley, 150 Ariz. 583, 586, 724 P.2d 1252, 1255 (App. 1986). ¶39 Arizona law on this point is consistent with the rule set out in the Restatement. The comment to the Restatement of Torts (Second) § 912 (1979) provides: It is desirable that responsibility for harm should not be imposed until it has been proved with reasonable certainty that the harm resulted from the wrongful conduct of the person charged. It is desirable, also, that there be definiteness of proof of the amount of damage as far as is reasonably possible. It is even more desirable, however, that an injured person not be deprived of substantial compensation merely because he cannot prove with complete certainty the extent of harm he has suffered. . . . . The requirements vary with the possibilities for making a reasonably exact estimate of the amount of harm measured in terms of money. Id. at cmt. a. Thus, fairly compensating the injured person in a personal injury case may require trusting the jury to fairly evaluate evidence that is inherently uncertain but is the best evidence available. ¶40 This trust in the jury is consistent with our supreme court s recognition that a central task for juries is resolving disputes over difficult and conflicting evidence. 16 Uncertainty alone does not justify taking evidence heard by a jury. away a party s right to have With regard to damages, the court has stated: The difficult problem of quantifying general damages should not have prevented the courts from awarding such damages if in fact an injury had occurred. It is the genius of the common law that difficult damage questions are left to juries. See Meyer v. Ricklick, 99 Ariz. 355, 357-58, 409 P.2d 280, 281-82 (1965) (damage amount in personal injury action is peculiarly within jury s province, and the law does not fix precise rules for the measure of damages but leaves their assessment to a jury s good sense and unbiased judgment ). . . . Walker v. Mart, 164 Ariz. 37, 41, 790 P.2d 735, 739 (1990); see also Logerquist v. McVey, 196 Ariz. 470, 491, ¶ 65, 1 P.3d 113, 134 (2000) (retaining Frye rule because evidentiary testing should come from the adversary system and be decided by the jury ). The basic issue in this case is whether the trial court properly relied on the good sense and unbiased judgment of the jury to evaluate Felder s claim for damages related to his loss of earning capacity as a professional baseball player. Meyer, 99 Ariz. at 358, 409 P.2d at 282. ¶41 The injury. Moreover, the evidence plainly showed that Felder s career as a jury found professional result of the injury. proven. Physiotherapy baseball liable player ended for as Felder s a direct Consequently, the fact of damage was Physiotherapy argues that Felder must prove he would 17 have been promoted to the major leagues, in effect arguing that the fact of damage is damage to his major league career. disagree with this characterization. Felder was a professional baseball player at the time he was injured. eye ended his playing career. We Being The injury to his promoted to the major leagues would not have been a different career, but simply a significant advancement in his existing career. ¶42 We recognize that simply dreaming of a career as a professional athlete is not enough to create an issue of fact appropriate for a jury. See Sheppard v. Crow-Barker-Paul No. 1 Ltd. P ship, 192 Ariz. 539, 548-49, ¶¶ 48-52, 968 P.2d 612, 62122 (App. 1998) (affirming jury instruction that refused to let jury speculate on star high school basketball player s possible earnings during a professional career). Restatement injured merely recognized, person because not he be however, it deprived of substantial with complete cannot prove extent of harm he has suffered. § 912, cmt. a. certainty and As the comment to the is desirable that an compensation certainty the Restatement (Second) of Torts, In analyzing where to draw the line between speculation, the Tennessee Court of stated: Impairment of earning capacity is not necessarily measured by an injured person s employment or salary at the time of the injury. It is not uncommon for an injured person to assert that an injury has caused 18 Appeals him or her to abandon plans to change employment, to obtain additional education or training, or to otherwise advance a career. In the face of such an assertion, the trier of fact must distinguish between persons with only vague hopes of entering a new profession and those with the demonstrated ability and intent to do so. Overstreet v. Shoney s, Inc., 4 S.W.3d 694, 704-05 (Tenn. App. 1999) (internal citation omitted) (affirming damage award to nurse relating to future career advancements). ¶43 Felder had more than a vague hope of a successful career as a professional baseball player. Although the parties disagree as to his major league prospects, it is undisputed that Felder had advanced within professional baseball and at the time of his injury he had been signed to another AAA contract. had demonstrated player. his ability to be a professional He baseball His injury plainly took away his chance to continue and advance as a player. ¶44 The issue, therefore, becomes what degree of reasonable certainty is required to set the amount of Felder s damages. As noted, the degree of certainty that is reasonably required varies depending on the circumstances of each case, and, indeed, on the cause of action asserted. In an action for personal injuries, the law does not fix precise rules for the measure of damages but leaves their assessment to a jury s good sense and unbiased judgment. Meyer, 99 Ariz. at 358, 409 P.2d 19 at 282. This rule includes resulting from personal injuries. ¶45 In contrast, claims for loss of earnings Id. [d]amages for diminution in future earning power or capacity are not recoverable in an action for breach of an employment contract. Lindsey v. Univ. of Ariz., 157 Ariz. 48, 54, 754 P.2d 1152, 1158 (App. 1987). Our courts have decided that [i]n an action for breach of contract, the employee is not permitted recovery for injury to his reputation because the computation of damages is too speculative and the damage cannot contemplation contract. reasonably of Id. the be presumed parties when to they be within the into the entered In effect, our courts have decided that in breach of employment contract cases it is reasonable to require almost complete certainty as reflected in the actual terms of the contract and the expectations of the parties to the contract.6 ¶46 In breach of contract cases in which lost profits are claimed as damages the issue becomes more complicated. Indeed, the line between the fact of damage and the amount of damage may be blurred when lost profits are at issue. 6 Although discussed In light of the bright-line rule articulated in Lindsey that reduced earning power is not recoverable in a breach of contract action, that opinion s analysis of the speculative nature of income from athletic endorsements was dicta and provides little assistance to us in determining what reasonable certainty means in this personal injury case. 20 in terms of amount of lost profits, many cases actually focus on whether a plaintiff has presented sufficient proof of the fact of lost profits. For example, in Rancho Pescado the plaintiff sought to recover lost profits from a commercial catfish farm. Rancho Pescado, Inc. v. Nw. Mut. Life Ins. Co., 140 Ariz. 174, 680 P.2d 1235 (App. 1984). This court affirmed the trial court s finding that the plaintiff had failed to show that he would have been successful at the business. P.2d at 1247. Id. at 186, 680 In effect, the court found that the plaintiff failed to prove the fact of lost profits. Id.; see also Coury Bros. Ranches, Inc. v. Ellsworth, 103 Ariz. 515, 520-21, 446 P.2d 458, 463-64 (1968) (finding evidence failed to show that breach of contract caused losses). ¶47 Once the fact of lost profits is established in a breach of contract action, our courts have not been as strict about the amount. As quoted above, where it can be proven that profits were lost, doubts as to the extent of the injury should be resolved in favor of the innocent plaintiff and against the wrongdoer. Gilmore, 95 Ariz. at 36, 386 P.2d at 82. being [t]he said, establishing the requirement amount of of reasonable damages applies where a loss of future profits is alleged. such loss is mathematical capable of precision. proof Id. 21 more at certainty with added in force This is so because closely 36, That 386 approximating P.2d at 82-83 (internal citation omitted). Reasonable certainty as to the amount of lost profits can be shown by books of account, records of previous transactions or tax returns, id. at 36, 386 P.2d at 83, or the profit history from a similar business operated by the plaintiff at a different location. Ariz. at 184, 680 P.2d at 1245. Rancho Pescado, 140 Disagreements as to the evidence used to establish the amount of damages will go to the weight of the evidence. Short, 150 Ariz. at 586, 724 P.2d at 1255; see also Logerquist, 196 Ariz. at 488, ¶ 52, 1 P.3d at 131 ( Questions about the accuracy and reliability of a witness factual basis, credibility of data, the and methods witness go testimony to and the are weight and questions of fact. . . . It is the jury s function to determine accuracy, weight or credibility. ). ¶48 From these authorities we conclude that when determining what constitutes reasonable certainty as to the amount of damages consideration must in be a personal what is injury reasonable circumstances of the particular case. not be conducive to a high future itself is uncertain. degree action, the under key the Some cases will simply of certainty because the This does not, however, deprive an injured plaintiff of a remedy. A plaintiff may still claim damages in an amount supported by the best evidence available and the essential consideration is that the jury must be guided 22 by some rational standard. Short, 150 Ariz. at 586, 724 P.2d at 1255. ¶49 Applying this standard, we do not believe it would be reasonable in a personal injury action to require a professional athlete to prove with complete certainty how successful he will be at his chosen profession. concerning the competition. athlete s For damage There will always be uncertainty physical to a performance sports and career, success the in evidence reasonably available will generally be what was presented at trial in this case qualified expert testimony concerning the athlete s prospects, statistics showing past performance, and comparative data concerning other athletes. We need not detail all of the evidence concerning Felder s career. Suffice it to say that the jury learned in detail about his batting averages, fielding performances, and injuries between 1992 and 1998. The jury was provided with evaluations from minor league coaches and opinions from several development experience. experts with major league player The jury also heard about the economics of baseball compensation, including how long a professional s career might be and what similar players were being paid. ¶50 In ruling on whether the lost earning capacity issue should go to the jury, the trial court found that reasonable people could allowed the disagree issue to about go to Felder s the 23 prospects jury. We and agree therefore with that conclusion. No one can say with complete certainty whether Felder would, or would not, have been promoted to the major leagues or how long he might have played there. We can say, however, as the jury did, that his eye injury prevented him from having that chance. Under these circumstances, the amount of his damages for being deprived of that chance was for the jury to decide. ¶51 Physiotherapy capacity to go to argues the that jury is allowing contrary lost to earning our previous memorandum decision in this case, in which we stated that Felder needed stronger evidence to prevail. Physiotherapy states that the facts concerning Felder s career were the same in both trials, and merely adding Goldis as an expert witness did not make the case stronger. We disagree. We did not hold in our previous ruling that the only way Felder could claim damages is by producing evidence that showed it to be completely certain that he would be promoted to the major leagues. opined that Felder needed background in actually admittedly speculated more hiring about than an players Felder s expert for major The testimony of Goldis filled that gap. We simply who teams league had and no who prospects. The function of an expert is to provide testimony on subjects that are beyond the common sense, experience and education of the average juror. Adams v. Amore, 182 Ariz. 253, 255, 895 P.2d 1016, 1018 (App. 24 1994) (quoting State v. Lindsey, 149 Ariz. 472, 475, 720 P.2d 73, 76 (1986)). As we explained above, a jury was entitled to consider the evidence that was reasonably available to evaluate Felder s prospects, i.e., data about past performance and expert testimony about future prospects. Goldis was able to provide information point future from the prospects. management s We find no error of in view the about trial those court s determining that our previous ruling was satisfied.7 II. ANXIETY CLAIM ¶52 Physiotherapy alleges that the trial court erred when it failed to grant judgment as a matter of law on Felder s claim for anxiety generated by the risk of future neovascularization. Felder responds that he has a permanent risk of neovascularization and acknowledged to the jury that the risk is less than 1%. As stated above, we review the trial court s ruling on a motion for judgment as a matter of law de novo. Monaco, 196 Ariz. at 302, ¶ 6, 995 P.2d at 738. ¶53 Physiotherapy evidence to support the argues that anxiety there claim. was In insufficient support of its argument, Physiotherapy cites DeStories v. City of Phoenix, 154 Ariz. 604, 605, 744 P.2d 705, 706 (App. 1987), in which the 7 Physiotherapy also points to this court s citations in our earlier decision to Lindsey and Rancho Pescado. As discussed above, those cases are distinguishable on the precise issue presented here. 25 plaintiff sought to recover damages for emotional harm absent any physical injury, based on plaintiff s increased risk of contracting asbestosis or lung cancer. ¶54 including Because an Felder orbital has bone suffered fracture, physical ruptured injuries, retinal tissue, subretinal hemorrhaging, and other injuries to his eye, we find DeStories inapposite. DeStories cites the principle from Prosser and Keaton s The Law of Torts, that there can be no recovery for mental disturbance unless physical injury, illness or other physical consequence accompany it, or physical harm develops as a result of the plaintiff's emotional distress. Id. at 608, 744 P.2d at 709 (citing W. Page Keaton, et al., Prosser and Keaton on the Law of Torts § 54 at 361-63 (5th ed. 1984)). Because Felder suffered serious physical harm, he is able to recover for his anxiety over his less than 1% chance of neovascularization. We conclude that the trial court did not err. III. EVIDENTIARY RULINGS ¶55 Generally, we review challenges to the court s admission or exclusion of evidence for an abuse of discretion. Yauch v. S. Pac. Transp. Co., 198 Ariz. 394, 399, ¶ 10, 10 P.3d 1181, 1186 (App. 2000). If the evidentiary ruling is predicated on a question of law, we review that ruling de novo. 26 Id. ¶56 Physiotherapy asserts that excluding its outright data evidence. the court erred by Physiotherapy s expert, Steve Phillips, former general manager for the Mets, compiled data from 1993 2004 regarding over 400 outrighted players who were cut from the 40-man roster. that only 21.3% of outrighted This evidence proposed to show players advance to the major leagues and only 3.4% of outrighted players remained in the major leagues for more than three years. that the evidence was relevant to Physiotherapy argued rebutting the claims of Felder s experts regarding his baseball career and earnings. ¶57 The trial court expressed concern over Physiotherapy s motion to admit the evidence shortly before the trial began. Because this data was untimely disclosed, the court pointed out that Felder would not have had a chance to review and analyze the underlying data which supported the data compilation. ¶58 Felder stated the grounds for his objection to the evidence: [This is a] statistical analysis which talks about odds. . . . [A] GM does not draft or refuse to draft a player based on the odds. . . . The players in the chart don t have the same skill sets as [Felder], don t play the same position as [Felder]. Aren t all first-round draft picks. . . . some of these players play[ed] college ball, some high school and some neither. These comparisons are . . . irrelevant, immaterial and . . . improper. 27 ¶59 The court explained its concerns about admitting the chart: I have no way of knowing that that it accurately summarizes that data regularly made and kept in the course of baseball business. I m not going to take the time from somebody from Major League baseball to come here and tell me that it does. . . . I have a question as to whether it s relevant as opposed to a specific analysis, that is, tools, his skills, his abilities, his age, his longevity in the minors, his injuries have been analyzed like you would analyze any other player as opposed to in mass. . . . [W]e have to look at [Felder] as an individual. And the only way to do that is to compare him to the players that are most similar to him as opposed to a wide universe of people dropped from the 40-man roster. . . . [Physiotherapy s] witness has not done a player by player comparison. . . . I don t think we ought to get into the statistics because they re not meaningful. There s no way that the jury can use or interpret those statistics. ¶60 Physiotherapy argued: to other outrighted players. situated players. We ve chosen [to] compare him We believe those are similarly And if you don t allow it, you substitute your judgment for the jurors . ¶61 because The it court excluded essentially the presented outright the player advancing to the major leagues. odds data of an compilation outrighted Nevertheless, the court allowed Physiotherapy s expert, Steve Phillips, to testify about the significance of being dropped from the 40-man roster and 28 that few outrighted players have ever advanced to the major leagues. ¶62 We cannot conclude that the trial court abused its discretion. The outright data comparison included players from different positions. chart were Sixty-three percent of the players on the pitchers. Given the trial court s considerable discretion and Phillips testimony, we find no error. ¶63 Physiotherapy next asserts that the court erred by excluding the testimony of former Diamondbacks executive Ralph Nelson. Physiotherapy intended for Nelson s testimony to rebut Felder s experts claim that the only reason the Diamondbacks did not draft Felder was because he was injured. Felder contends that Physiotherapy wanted Nelson to testify as a third expert witness, in contravention to the rules. ¶64 The court clearly stated its rationale on the record in support of excluding the testimony. Phillips, did not indicate that he Physiotherapy s expert, was relying testimony in order to formulate his opinions. testimony would have addressed the on Nelson s Further, Nelson s collateral matter of Diamondbacks rationale in choosing not to hire Felder. the We cannot conclude that the court abused its discretion. IV. DUPLICATIVE EXPERT TESTIMONY ¶65 Physiotherapy next contends that the trial court erred by allowing Felder to introduce evidence of the statistics of 29 comparable major league players through Felder s expert, Mead. Physiotherapy construed this testimony as duplicative of Goldis testimony regarding Felder s baseball career, and thus violative of Arizona Civil Procedure Rule 26(b)(4)(D). ¶66 We review the trial court s ruling on a discovery issue for an abuse of discretion. Burke, 204 Ariz. 251, 253, ¶ Twin City Fire Ins. Co. v. 10, 63 P.3d 282, 284 (2003). Arizona Rule of Civil Procedure 26(b)(4)(D) states that in all cases each side shall presumptively be entitled to only one independent expert on an issue, except upon a showing of good cause. Reasoning that the evidence was relevant to a quantification of damages, the trial court admitted it. ¶67 Physiotherapy s precise objection concerns Mead s comparison of Felder s statistics to those of two other minor league players who advanced to the major leagues. argues that testimony a prospects. the jury to the admission second expert of this opinion evidence on Physiotherapy rendered Felder s major Mead s league Physiotherapy asserts that this evidence invites conclude that the similarity between Felder s statistics and two major league players means that Felder would have made the major leagues as well. Thus, Physiotherapy argues that Mead s testimony addressed Goldis issue: whether or not Felder would have had a career in the major leagues. 30 ¶68 Felder responds that the court s ruling complied with the rule because each expert testified about a discrete issue. Goldis testified about Felder s chances of making it into the major leagues and the anticipated length of his major league career. Mead testified league salaries. about the range of minor and major Further, Felder regards both experts use of statistics in their comparisons as non-dispositive because they used the statistics for different purposes. Mead used the statistics for economic purposes while Goldis used them to opine about Felder s baseball prospects. ¶69 The question is whether Goldis and Mead testified about separate issues so that the trial court s ruling complies with Rule 26(b)(4)(D). professional disciplines, Where an issue cuts across several the court should be liberal in allowing expansion of the limitation upon experts established in the rule. Ariz. R. Civ. P. 26(b) cmt. (Committee comment to 1991 amendment). Thus, defining the scope of an issue is left to the trial court s reasonable discretion. ¶70 Having reviewed the record, we conclude that the court did not abuse its discretion. Goldis confined his testimony to Felder s baseball career. regarding Felder s likely Mead testified as a sports agent earnings based on Goldis that Felder would play for ten to fourteen years. 31 estimate Although each expert discussed other players, that alone does not render the testimony duplicative. V. BATSON RULING & PEREMPTORY CHALLENGES ¶71 Physiotherapy asserts that the trial court improperly sustained Felder s Batson challenge regarding Physiotherapy s peremptory strike against S.R., a Hispanic woman. ¶72 In reviewing a Batson ruling, we defer to the trial court s factual meaning that findings they are unless they unsupported by are clearly erroneous, substantial evidence. State v. Lucas, 199 Ariz. 366, 368, ¶ 6, 18 P.3d 160, 162 (App. 2001); Visco v. Universal Refuse Removal Co., 11 Ariz. App. 73, 75, 462 standard). P.2d 90, 92 (1969) (defining clearly We review questions of law de novo. erroneous Lucas, 199 Ariz. at 368, ¶ 6, 18 P.3d at 162. ¶73 challenges Batson s applies prohibition to civil against cases. race-based Edmonson Concrete Co., Inc., 500 U.S. 614, 631 (1991). peremptory v. Leesville In a Batson challenge, the objecting party must make a prima facie showing of purposeful discrimination. Purkett v. Elem, 514 U.S. 765, 767 (1995); Batson, 476 U.S. at 93-94. The trial court should consider all of the relevant circumstances in its evaluation of whether the party has made the required showing. U.S. at 96-97. 32 Batson, 476 ¶74 Once the moving party makes that showing, the opposing party must offer a race neutral explanation. at 767. Purkett, 514 U.S. Unless a discriminatory intent is inherent in the [non-moving party s] explanation, deemed race-neutral. the Id. at 768. reason offered will be The reason need not be logical or persuasive; its sole requirement is that it does not violate equal protection. ¶75 whether the objecting party proved purposeful racial discrimination. Id. at 767. The trial Id. at 769. court must then determine The trial court may then consider the reason for the peremptory strike. Id. at 768. [I]mplausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination. ¶76 Id. Felder supported his initial prima facie showing of purposeful discrimination against minority women on the panel. Physiotherapy s first three strikes were against S.R., who is a Hispanic woman, an African-American woman and another Hispanic woman. S.R. hardly spoke throughout voir dire. The trial court found that the strike of S.R., but not the strikes against the other two women, violated Batson. ¶77 Once Felder made his prima facie showing, Physiotherapy had the chance to offer a race-neutral reason for the strike. Physiotherapy contended that it struck S.R. because it believed that S.R. s injured friend, who lost her ability to 33 participate in sports when she was in junior high school, could exert an undue influence over her in this case. ¶78 Having heard Physiotherapy s rationale for that strike, the trial court had to determine whether Felder had proved a claim of purposeful discrimination against S.R. The trial court was not persuaded by Physiotherapy s explanation. Even considering S.R. s responses and conduct during voir dire, the trial court concluded that there was no race neutral reason to strike her from the jury. The trial court granted the Batson challenge and reinstated S.R. to the jury. The trial court acted within its We find no error. discretion in finding trial court s Physiotherapy s explanation inadequate. ¶79 Physiotherapy also contends that the Batson ruling denied its fundamental right to exercise an equal number of peremptory challenges. It argues that it should have been allowed an additional challenge when the trial court found one of its challenges to be invalid. ¶80 Physiotherapy did not raise this issue in the trial court before the jury was empanelled and the remaining venire members were excused. Its failure to timely raise this issue below waives it on appeal. State v. Harris, 175 Ariz. 64, 67, 852 P.2d 1248, 1251 (App. 1993). 34 CONCLUSION ¶81 For the reasons discussed above, we affirm the judgment. _______________________________ PATRICK IRVINE, Presiding Judge CONCURRING: ____________________________________ JOHN C. GEMMILL, Judge ____________________________________ HARRIETT CHAVEZ, Judge8 8 The Honorable Harriett Chavez, Judge of the Maricopa County Superior Court, was authorized by the Chief Justice of the Arizona Supreme Court to participate in the disposition of this appeal pursuant to the Arizona Constitution, Article 6, Section 3, and A.R.S. §§ 12-145 to -147 (2003). 35
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