Mason v. Eastside/Wasatch et al

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE TRICIA MASON, a minor, by and through Teresa Johnson (Mother); ROBIN PETERS; LYNICIA WEARY, a minor, by and through Robin Peters (Mother): BRITTNEY PETERS, a minor, by and through Robin Peters (Mother), Plaintiffs/Appellants, v. EASTSIDE PLACE APARTMENTS, INC., an Arizona corporation; WASATCH PREMIER PROPERTIES, L.L.C., a Utah limited liability company; WASATCH POOL HOLDINGS, L.L.C., a Utah limited liability company; WASATCH POOL HOLDINGS IV, L.L.C., a Utah limited liability company; WASATCH PROPERTY MANAGEMENT, INC., a Utah corporation, Defendants/Appellees. THOMAS MORRIS, a minor, by and through Dawn Morris (natural mother); LYSSA MORRIS, a minor, by and through Dawn Morris (natural mother); KAITLYN MORRIS, Plaintiffs/Appellants, v. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. DIVISION ONE FILED: 07-27-2010 PHILIP G. URRY,CLERK BY: DN 1 CA-CV 09-0155 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) EASTSIDE PLACE APARTMENTS, INC., an Arizona corporation; WASATCH PREMIER PROPERTIES, L.L.C., a Utah limited liability company; WASATCH POOL HOLDINGS, L.L.C., a Utah limited liability company; WASATCH POOL HOLDINGS IV, L.L.C., a Utah limited liability company; WASATCH PROPERTY MANAGEMENT, INC., a Utah corporation, Defendants/Appellees. DAVE and RACHAEL BULLIS, husband and wife; STEPHEN and NIKKI BULLIS, husband and wife; CANDYCE COLSTON, a minor, by and through Bettie Hanna (Mother); MICHAEL CONTI, a minor, by and through Lori Lynn Larson (Mother); SHAYANNA DUPREE, a minor, by and through Cassidi Smith (Mother); SHARLON ESMAY, an individual; ANGELIQUE FLORES, a minor, by and through Roy Flores (Father); ROBERT FLORES, by and through Roy Flores (Father); CASSANDRA FUTCH, a minor, by and through Farrell Futch (Father); SHARON FUTCH, an individual; BRITIAN HACKEBORN, a minor, by and through Kuuleme Stephens (Mother); BETTIE HANNA, an individual; ROY FLORES and FLORENTINA HOLLINGSWORTH, husband and wife; AMELIA KAME, an individual; MARCO KAME, an individual; JOHN and LORI LARSON, husband and wife; LUKE LARSON, a minor, by and through John Larson (Father); MONTEL MCKINLEY, a minor, by and through Florentina Hollingsworth (Mother); SABRINA MCKINLEY, a minor, by and through Florentina Hollingsworth (Mother); JONATHAN RUHOFF, a minor, by and through Sienna 2 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Ruhoff (Mother); NATHANIAL RUHOFF, a minor, by and through Sienna Ruhoff (Mother); CASSIDI SMITH, an individual; KELSEY SMITH, a minor, by and through Cassidi Smith (Mother); JAMES and KUULEME STEPHENS, husband and wife; JACKLYN STEPHENS, a minor, by and through James Stephens (Father); JESSE STEPHENS, a minor, by and through James Stephens (Father); ALICIA SWIEGART, an individual; ELISA WORDEN, a minor, by and through Michael Worden (Father); GABRIEL WORDEN, a minor, by and through Michael Worden (Father); KIM WORDEN, an individual, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Plaintiffs/Appellants, ) ) v. ) ) WASATCH PROPERTY MANAGEMENT, ) INC., a foreign corporation; ) WASATCH POOL HOLDINGS, L.L.C., a ) foreign corporation; EASTSIDE ) PLACE APARTMENTS, INC., an ) Arizona corporation, ) ) Defendants/Appellees. ) ) ) ) ALICIA SWIEGART, on behalf of ) herself and CHAD TABOR, and as ) next best friend of Kaitlin Swiegart; NIKKI BULLIS, on behalf ) ) of herself and STEPHEN BULLIS, ) and as next best friend of ) Ezekiel Bullis, ) ) Plaintiffs/Appellants, ) ) v. ) ) WASATCH PROPERTY MANAGEMENT, ) INC., a foreign corporation; 3 WASATCH POOL HOLDINGS, L.L.C., a ) foreign corporation; EASTSIDE ) PLACE APARTMENTS, INC., an ) Arizona corporation, ) ) Defendants/Appellees. ) ) Transferred from Court of Appeals, Division Two Cause No. 2 CA-CV 08-0162 Cause No. 2 CA-CV 08-0165 (Consolidated) Appeal from the Superior Court in Pima County Cause No. C 2003 5518 Cause No. C 2004 1766 (Consolidated) And Cause No. C 2002 4299 Cause No. C 2002 4542 (Consolidated) The Honorable John E. Davis, Judge AFFIRMED IN PART; REVERSED IN PART; REMANDED Harold Hyams & Associates, P.C. By Harold Hyams Attorneys for Plaintiffs/Appellants Tucson And Ahwatukee Legal Office, P.C. By David Abney Attorneys for Plaintiffs/Appellants Phoenix Polsinelli Shughart,P.C. By Edward F. Novak Carlyle (Cary) W. Hall III Andrew B. Turk Andrew S. Jacob Phoenix And 4 Rusing & Lopez, P.L.L.C. By Todd M. Hardy Attorneys for Defendants/Appellees Tucson And Kuhn Law Firm, P.L.L.C. By Cynthia T. Kuhn Attorneys for Defendants/Appellees Tucson Law Offices of Scott M. Clark, P.C. By Scott M. Clark Attorneys for Amicus Curiae National Apartment Association Phoenix T I M M E R, Chief Judge ¶1 These consolidated appeals stem from four lawsuits asserting that owners and operators of Eastside Place Apartments ( Eastside ) appellants, in who Tucson were caused tenants health-related (collectively, injuries to Tenants ), by facilitating Tenants exposure to toxic levels of mold in their apartments. court After holding a Frye 1 hearing in one case, the trial precluded testimony by Tenants experts and eventually granted summary judgment in favor of appellees (collectively, Landlord ) in each lawsuit. 1 These timely appeals followed. 2 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). 2 The Abad appeal, 2 CA-CV 2008-0165, concerns two cases consolidated by the trial court in C20024299. The Mason appeal, 2 CA-CV 2008-0162, concerns two cases consolidated by the trial court in C20035581. Many Tenants elected not to appeal the judgments in the Abad and Mason cases; as to these Tenants, therefore, the summary judgment is binding. Additionally, although Randy and Dell Loy Hansen, officers and directors of 5 For the reasons that follow, we affirm in part, reverse in part, and remand. BACKGROUND ¶2 Eastside experienced problems with indoor mold, water intrusion, and deteriorated siding early part of this century. during the 1990s and the According to Tenants, although they complained daily to Landlord about the mold in 2001, Landlord failed to correct the situation. long-term exposure problems, to including deficiencies, the mold caused developmental asthma, Additionally, As a result, Tenants contend Tenants and claim to suffer disabilities, other two them neurological respiratory infants who health problems. died of sudden infant death syndrome ( SIDS ), actually died as a result of exposure to compensatory Landlord s mold. and In punitive negligence, their complaints, damages fraud, and based intentional emotional distress, among other claims. the case, summary the court judgment on granted Landlord s Tenants on claims Tenants sought allegations of infliction of During the course of motions for for partial negligent and intentional infliction of emotional distress and their request for punitive damages. appellees Wasatch entities, were defendants in the cases, they are not parties to this appeal. 6 ¶3 At Landlord s request, the trial court held a lengthy Frye hearing in the Abad case in 2006 to determine whether (1) Tenants experts opinions that the health injuries allegedly sustained by Tenants could be caused by exposure to indoor mold were generally communities, accepted and (2) in the the experts relevant collected scientific/medical and tested mold samples according to generally accepted scientific principles. By the conclusion of the hearing, the court also was considering Landlord s renewed motion for summary judgment based on the record developed at the Frye hearing, Tenants motion to file a seventh-amended complaint, and evidentiary-related motions. The court ruled on July 14, 2006, in relevant part, as follows: (1) The court struck the telephonic testimony of Dr. James Dahlgren because Tenants counsel had provided him with a transcription of another expert s Frye hearing testimony in violation of Arizona Rules of Evidence ( Rule ) 615, and Dr. Dahlgren had referred to materials to facilitate his testimony in violation of Rule 612. (2) After considering expert testimony and documentation presented by all parties, the court concluded that the generally scientific/medical could have the accepted community effect of position is that of indoor exacerbating the exposure pre-existing relevant to mold asthma. Indoor exposure to mold would not cause the other health effects 7 and damages claimed by [Tenants] in this case according to the generally accepted community. view of the relevant scientific/medical Consequently, the court ruled that Tenants could not present expert evidence contrary to this conclusion. (3) The court sustained Landlord s evidentiary objections to the testing and collection procedures utilized by Tenants experts, Steven Barnes, Dr. Richard Lipsey, and Dr. Mark Sneller. establish The court foundation and found chain that of Tenants custody had for failed the to samples sufficiently to permit admission of the testing results; Tenants failed to demonstrate their experts followed recognized protocols in gathering the samples; sampling and testing done in 2003 and 2004 could not be extrapolated to 2000 and 2001, the relevant time document his periods; sampling and Dr. conducted Sneller in 2001. failed The to adequately court further refused to admit exhibits offered by Tenants to cure evidentiary deficiencies. (4) The court granted summary judgment in favor of Landlord on all claims for health injuries except those for exacerbation of pre-existing asthma documented by admissible medical testing and based upon exposure to mycotoxin and/or mold that occurred in apartments that were timely and properly tested and sampled. 8 (5) Because the court s above-described rulings impacted Tenants pending motion to amend the complaint, the court deferred its ruling on that motion until the parties could supplement their briefing on the issue. ¶4 In a ruling entered September 18, the court stated its Frye ruling had permitted the parties to pursue some healthrelated claims due to mold and had invited clarification of what health claims remained in the context of Tenants pending motion to amend the complaint. According to the court, the Tenants failed to document and support the existence of such claims. The court therefore found that any additional amendments to the complaint would be futile and denied Tenants motion to amend on that basis and, alternatively, amendment with undue delay. because they had sought the Based on the denial of the motion to amend the complaint and the prior Frye-related rulings, the court granted summary judgment against Tenants on all claims. ¶5 In a ruling in the Mason case entered December 17, 2007, the court adopted its rulings in the Abad case and granted summary judgment in favor of Landlord on all claims. On August 11, 2008, the court entered final judgment in favor of Landlord in both cases. Tenants timely appealed, and we consolidated the appeals. 3 3 After initiation of the appeals in Division Two of this court, the court transferred the appeals to Division One. 9 DISCUSSION I. ¶6 Application of Frye Following the paradigm established by Frye to determine the admissibility of expert testimony that relies on new scientific tests or techniques, Arizona courts require the proponent of such evidence to establish its reliability by demonstrating it has gained general acceptance and recognition in the relevant scientific community. 4 State ex rel. Romley v. Fields, 201 Ariz. 321, 325, ¶ 11, 35 P.3d 82, 86 (App. 2001). Our supreme court delineated the applicability of Frye as follows: Frye is applicable when an expert witness reaches a conclusion by deduction from the application of novel scientific principles, formulae, or procedures developed by others. [Frye] is inapplicable when a witness reaches a conclusion by inductive reasoning based on his or her own experience, observation, or research. In the latter case, the validity of the premise is tested by interrogation of the witness; in the former case, it is tested by inquiring into general acceptance. Logerquist v. McVey, 196 Ariz. 470, 490, ¶ 62, 1 P.3d 113, 133 (2000). We review the trial court s testimony for an abuse of discretion. 4 exclusion of expert State v. Speers, 209 In 2010, the legislature enacted Arizona Revised Statutes ( A.R.S. ) § 12-2203, which changes the Frye model for admitting expert testimony. See 2010 Ariz. Sess. Laws, ch. 302 (2nd Reg. Sess.) (effective July 28, 2010). We express no opinion concerning the applicability of this provision to the cases before us. 10 Ariz. 125, 129, ¶ 13, 98 P.3d 560, 564 (App. 2004). In doing so, however, we conduct a de novo review to decide whether a scientific principle generally accepted used in as the a basis scientific for expert opinion is community. State v. Garcia, 197 Ariz. 79, 83, ¶ 20, 3 P.3d 999, 1003 (App. 1999) (citation omitted). ¶7 Before opinions, we addressing consider the substance Landlord s of the contentions that experts (1) Frye required Tenants to show initially that the relevant theory of general medical causation indoor mold exposure can cause nonasthma-related illnesses and infant death was generally accepted in the medical community before Tenants experts could testify exposure deaths regarding did in cause this inductive/deductive causation. 5 specific medical causation non-asthma-related case, and inquiry (2) only illnesses courts to apply opinions indoor and mold infant Logerquist s of specific According to Landlord, because Tenants failed to 5 At oral argument before this court, Landlord s counsel argued for the first time that Logerquist was inapplicable because that case involved unscientific opinions and the court exclusively directed its holding to such opinions. We disagree. The Logerquist majority stated its decision did not turn on whether the precluded expert testimony in that case was scientific or unscientific. 196 Ariz. at 490, ¶ 62, 1 P.3d at 133; see also id. at 498, ¶¶ 100-02, 1 P.3d at 141 (McGregor, J. dissenting) (recognizing that majority opinion applies to expert scientific testimony). Moreover, subsequent decisions from this court applied Logerquist to expert scientific testimony. See, e.g., Lohmeier v. Hammer, 214 Ariz. 57, 63, 64, ¶¶ 21, 25, 148 P.3d 11 demonstrate that their experts medical causation opinions were generally accepted in the medical community, the court properly precluded them without considering Logerquist. ¶8 The pre-Logerquist cases relied on by Landlord do not support its contentions. In State v. Plew, 155 Ariz. 44, 46, 745 P.2d 102, 104 (1987), the supreme court considered criteria developed in State v. Chapple, 135 Ariz. 281, 660 P.2d 1208 (1983), regarding testimony about the reliability of eyewitness identification to determine whether the trial court erred by refusing to admit expert cocaine intoxication on testimony human regarding behavior. the impact Although of one consideration was whether the expert opinion conformed to a generally accepted explanatory theory, the court did not mention Frye and did not draw a distinction between general and specific medical causation. ¶9 Id. Baroldy v. Ortho Pharmaceutical Corp., 157 Ariz. 574, 760 P.2d 574 (App. 1988), applied Frye in a products liability lawsuit but did not draw the distinction advocated by Landlord. Plaintiff s expert witnesses relied on the occlusion theory of bacteria growth to opine that a diaphragm used by the plaintiff caused her to suffer toxic shock syndrome. at 581. Id. at 581, 760 P.2d Two other experts reached the same conclusion without 101, 107, 108 (App. 2006) (biomechanical analysis); State v. Lucero, 207 Ariz. 301, 305, ¶ 19, 85 P.3d 1059, 1063 (App. 2004) (effects of marijuana). 12 relying on the occlusion theory. Id. at 582, 760 P.2d at 582. The diaphragm s manufacturer argued the trial court erred by allowing all plaintiff s expert testimony on causation because the occlusion theory was not generally accepted by the relevant scientific community, as required by Frye for admission. After expressing hypothesis of doubt that causation, Frye the applied court to a concluded Id. scientific plaintiff had demonstrated general acceptance of the theory, nonetheless. Id. at 581-82, 760 P.2d at 581-82. Significantly, the court also stated causation that grounds plaintiff s other regardless theory. of than the expert the occlusion relevant testimony theory community s Id. at 582, 760 P.2d at 582. based was on admissible acceptance of that In sum, Baroldy applied Frye s general acceptance requirement to a theory of causation only if relied upon by the expert; it did not require general acceptance of the theory if the expert reached the same conclusion by other means. ¶10 Our review of Logerquist likewise fails to reveal support for Landlord s position. The plaintiff in that case alleged her abused child. 196 Ariz. at 472, ¶ 3, 1 P.3d at 115. introduce pediatrician expert sexually testimony that severe her when trauma, she was a She sought to like sexual abuse, could cause a child to suppress the memory of it but recall the event accurately in later years; she did not seek to 13 introduce expert testimony that she suppressed the memory of sexual abuse and Logerquist s general later holding causation recalled was made opinion it in accurately. the rather context than a Id. of Thus, screening specific a causation opinion. ¶11 that Summing up, Tenants were not required to demonstrate each expert s opinion was generally accepted in the relevant scientific or medical community in order to satisfy Frye. Rather, Tenants were required to demonstrate general acceptance only when the expert arrived at a conclusion by applying a scientific theory or process based on the work or discovery of others. State v. (1997)). Hummert, If experiences, the Id. at 480, ¶ 30, 1 P.3d at 123 (quoting 188 Ariz. experts 119, based observations, and 127, their 933 P.2d opinions studies, 1187, on 1195 their were Tenants own not required to show general acceptance; [s]uch evidence need only meet the traditional requirements of relevance and avoid substantial prejudice, confusion, or waste of time. Id. at ¶¶ 30-31 at (quoting Whether such Hummert, opinions 188 are Ariz. in at accord 127, with 1 P.3d generally 123). accepted theories of causation held by other experts goes to the weight of the opinions rather than their admissibility. 157 Ariz. at manufacturer s 583, 760 experts did P.2d not 14 at 583 disprove See Baroldy, (noting occlusion diaphragm theory but merely created a weight and properly is conflict in medical resolved by testimony the that jury). goes With to these principles in mind, we examine the court s ruling. ¶12 Tenants medical doctors sought Gerald to introduce Goldstein, expert Dennis testimony Hooper, and from Vincent Marinkovich 6 that Tenants exposure to mold at Eastside caused their injuries. The trial court applied Frye and precluded all Tenants medical causation opinions except those opining that indoor exposure to mold could exacerbate pre-existing asthma. The court did not rest its ruling on the processes employed by each expert to reach his opinion. Rather, after considering the testimony of all experts and comparing medical publications, the court concluded [i]ndoor exposure to mold would not cause the other health effects and damages claimed by plaintiffs in this case according to the generally accepted view of the relevant scientific community. ¶13 We agree with Tenants that the court misapplied Frye to preclude all these experts opinion testimony. The doctors did not base their opinions on scientific principles, formulae, or procedures developed by others. at 6 490, ¶ 62, 1 P.3d at 133. See Logerquist, 196 Ariz. Rather, with exceptions not Sometime after the Frye hearing, Dr. Marinkovich passed away. 15 material here, 7 experiences, conclusions. and they relied studies According to as on their own physicians Logerquist, this to examinations, reach type of their expert testimony is not subject to Frye but is governed instead by Rules 702 and 703. Id. at 477-78, ¶ 23, 1 P.3d at 120-21; see also Lucero, 207 Ariz. at 305, ¶ 17, 85 P.3d at 1063 (concluding Frye inapplicable to forensic toxicologist s opinion that defendant impaired by marijuana at time of collision as opinion based on knowledge and experience rather than novel scientific principles); Baroldy, 157 Ariz. at 582, 760 P.2d at 582 (holding medical expert testimony based on absence of other reasonable 7 Dr. Goldstein s opinion that mold can produce mycotoxins was based on his review of studies conducted by others. Landlord does not contest that this opinion is generally accepted by the relevant scientific community, however. In fact, the Institute of Medicine report advanced by Landlord as the gold standard in the area of indoor mold exposure recognizes that indoor mold can produce mycotoxins under certain circumstances. Committee on Damp Indoor Spaces and Health, Board on Health Promotion and Disease Prevention, Institute of Medicine of the National Academies, Damp Indoor Spaces and Health 7 (National Academies Press 2004). Dr. Hooper relied on a procedure for testing for mold developed by others; Landlord does not contest on appeal that this procedure is generally accepted in the relevant scientific community, however. In addition to his own examinations and testing, Dr. Marinkovich relied on an outside study known as the Cleveland study, which is not generally accepted in the relevant scientific and medical communities, although it was not the primary basis for his opinions but merely verified them. Thus, the lack of acceptance of the study does not mandate preclusion of Dr. Marinkovich s opinions, although the court may properly preclude testimony about the study s conclusions. 16 explanation allegedly Frye). for plaintiff s defective product illness not and subject timing to of use exclusion of under Indeed, unlike scientific-process evidence such as DNA testing, the examination-based opinion of a medical doctor does not carry the aura of infallibility that Frye was designed to screen before submission to a jury. See Fields, 201 Ariz. at 327, ¶ 19, 35 P.3d at 88 (noting Logerquist endorsed idea that Frye inapplicable to expert medical testimony); see also Paul F. Eckstein, Samuel A. Thumma, Novel Scientific Expert Evidence in Arizona State Courts, 34 Ariz. Att y 16, 18 (June 1998) ( The Frye test is limited to new, novel or experimental scientific evidence that rests on scientific legitimacy, rather than common knowledge or personal opinion. ). ¶14 The trial court erred by focusing only on whether the experts medical opinions were generally accepted in the relevant scientific community and failing to consider the import of the manner Logerquist in which directs. Based they on reached the those foregoing opinions, as discussion, the court mistakenly precluded opinions offered by Drs. Goldstein, Hooper, and Marinkovich pursuant to Frye alone. In light of our decision, we need not consider Tenants arguments that the court erred by holding a Frye hearing and that their experts causation theories and testing methods are generally accepted in the relevant scientific communities. 17 ¶15 Tenants also sought to introduce at the Frye hearing telephonic testimony from medical doctor James Dahlgren that mycotoxins 8 produced by mold can cause injury, Tenants could have suffered neurological injuries if exposed to mold at Eastside, and tests performed generally communities. accepted by other experts procedures in called the by Tenants relevant were medical The court struck Dr. Dahlgren s testimony because Tenants counsel had provided the doctor with a copy of Dr. Marinkovich s Frye hearing testimony in violation of Rule 615, 9 and Dr. Dahlgren had referred to materials as he was testifying to assist his testimony in violation of Rule 612. 10 Tenants argue the court erred in this ruling because (1) Dr. Dahlgren s opinions were not subject to Frye and the court should not have conducted the hearing, and, alternatively, (2) any violations of 8 Webster s defines mycotoxin as a toxic substance produced by a fungus and [especially] a mold. Webster s Ninth New Collegiate Dictionary 783 (1990). 9 Rule 615 states, in relevant part, that [a]t the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses. An exception exists for persons whose presence is shown by a party to be essential to the presentation of the party s cause. The court did not rule that Dr. Dahlgren was such a person. 10 Rule 612 states, in relevant part, that [i]f a witness uses a writing to refresh memory for the purpose of testifying, . . . an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. 18 Rules 612 and 615 did not warrant the sanction imposed. We disagree. ¶16 Dr. examinations Dahlgren or did studies not in exclusively formulating rely his on his opinions; own rather, according to his testimony, he relied on scientific principles developed by others. that Dr. Additionally, Landlord presented evidence Dahlgren s testing methods were new and novel. Accordingly, his testimony was subject to scrutiny under Frye, and the trial court did not err by conducting a Frye hearing to consider his opinions. Logerquist, 196 Ariz. at 490, ¶ 62, 1 P.3d at 133. ¶17 We review the court s decision to strike Dr. Dahlgren s testimony as a sanction for violating Rules 612 and 615 for an abuse of discretion. Hmielewski v. Maricopa County, 192 Ariz. 1, 4, ¶ 13, 960 P.2d 47, 50 (App. 1997). discern such error. telephonically as We do not The court permitted Dr. Dahlgren to testify a courtesy. As the court noted, although Tenants counsel should have scrupulously [e]nsured that Dr. Dahlgren s evidence telephonic and testimony procedure . . . complied [i]nstead, with all rules [Tenants ] of counsel attempted to gain an unfair advantage in presenting telephonic testimony because Dr. Dahlgren could not be seen by opposing counsel and the Court. The court further found that Tenants gained an unfair advantage, which impacted Landlord s ability to 19 effectively cross-examine Dr. Dahlgren, and that the matter only came to light through Landlord s voir dire. In light of the purposeful nature of Tenants counsel s acts and the impact on Landlord, the court was justified in striking Dr. Dahlgren s testimony from the Frye hearing. ¶18 In conclusion, the trial court erred by precluding the testimony of Drs. Goldstein, Hooper, and Marinkovich pursuant to Frye alone. The court did not err by vetting Dr. Dahlgren s testimony under Frye and then striking that testimony. II. A. Mold sampling and testing At ¶19 Other evidentiary rulings the Frye hearing, Tenants introduced expert testimony from Steven Barnes, Dr. Richard Lipsey, and Dr. Mark Sneller regarding Eastside. testing of indoor mold samples taken from At the conclusion of the hearing, the trial court sustained Landlord s objections to these experts mold testing and collection procedures, and precluded any opinion testimony based on this testing. Tenants argue the trial court erred in this ruling for multiple reasons. evidentiary rulings for an abuse We review a trial court s of discretion, and we will generally affirm the ruling unless there is a clear abuse or legal error and resulting prejudice. 60, ¶ 6, 148 P.3d at 104. Sampling and testing in 2001 20 Lohmeier, 214 Ariz. at ¶20 Dr. Sneller testified about sampling and testing of indoor 2001. mold taken from some Tenants Eastside apartments in Citing Rules 403, 702, and 703, the trial court precluded this testimony from future proceedings because Dr. Sneller had failed to follow established protocols and methods to collect and preserve the highly unstable mold samples or adequately document when, how, where occurred. Tenants sufficiently established and challenge Dr. for this what duration ruling, Sneller s sampling contending they chain-of-custody and methodology protocols and any deficiencies went to the weight of the evidence rather than its admissibility. ¶21 Putting aside Frye considerations, scientific testing evidence is additionally subject to ordinary foundational showings, including that the expert used a proper technique and accurately recorded results. State v. Tankersley, 191 Ariz. 359, 366, ¶ 21, 956 P.2d 486, 493 (1998). If . . . testing procedures are so seriously flawed that the results are rendered unreliable, the trial court should not admit the evidence. . . . Once an adequate foundation is established, however, complaints of laboratory error or incompetence are considered by the trier of fact in assessing the weight of the evidence. ¶22 Dr. Id. The record supports the trial court s conclusion that Sneller s collection and preservation procedures were so seriously flawed that his opinions based on the results were 21 inadmissible. Dr. Sneller agreed that protocols are necessary when taking mold samples. labeling and sealing These protocols include meticulously samples, ensuring no intermingling of samples, uniformly storing samples, and using appropriate chainof-custody documents. Despite acknowledging the importance of protocols, Dr. Sneller demonstrated a lack of organization and detail in documenting the collection, storage, and shipping of mold samples taken from Eastside. ¶23 failed During to the document collection who process, collected the Dr. Sneller samples, the often date the samples were taken, the apartments the samples were taken from, and whether he used a template on swab samples. Dr. Sneller also admitted there was extensive confusion whether the sample results listed for the family of one infant collected from apartment 2142 or apartment 2144. Sneller confirmed he took outdoor air samples who died were Finally, Dr. using a five- minute collection time although the Aerotech Laboratory, which tested the samples, required a ten-minute collection protocol because the shorter the time period . . . that you run the air sampling, the less mold spores will be captured. ¶24 Dr. Sneller also could not consistently state whether he refrigerated samples, where the samples were stored, or how long the samples were stored. He did not follow a protocol for the time that samples were held before he viewed them. 22 Dr. Sneller further failed to indicate flow rates for some of the samples he collected. As a consequence, Dr. Linda Stetzenbach, of the University of Nevada Las Vegas laboratory, notified Dr. Sneller she was unable to calculate the number of spores per cubic meter or the quality form units per cubic meter because . . . no flow rates or sampling times were listed. ¶25 During the shipping process, Dr. Sneller frequently failed to record how the samples were packaged, whether he used ice or other packaging materials, the dates he shipped the samples to laboratories, the method of transportation, and how long the samples were in transit. ¶26 The court had further reason to be concerned regarding the accuracy of Dr. Sneller s testimony. He misplaced some of the data he collected in the case and therefore had to omit it from his exhibits. Dr. Sneller also admitted that although he had originally testified in his deposition that he created a timeline concerning one apartment in 2001, he actually created the document in 2005. ¶27 holds Landlord s a expert Ph.D. environmental in witness, Coreen health A. Robbins, sciences and is who a certified industrial hygienist, testified Dr. Sneller failed to follow generally accepted protocols 23 in industrial hygiene practice. 11 She further stated Dr. Sneller did not make appropriate chain-of-custody forms for his samples, which calls into question Robbins the ultimately reliability opined of that the the resulting samples data. obtained by Dr. Dr. Sneller could not be relied upon in forming opinions regarding the indoor exposures to mold and that the practices he employed were not in accordance with the generally accepted standards in the practice of industrial hygiene. ¶28 Based on the foregoing evidence, the trial court acted within its discretion to preclude Dr. Sneller s opinion testimony, as Tenants failed to establish sufficient foundation to admit the evidence. The accumulation of missing information and errors in Dr. Sneller s collection, storage, and shipping procedures were not inconsequential flaws in the chain custody that merely affected the weight of the evidence. of See State v. Morales, 170 Ariz. 360, 365, 824 P.2d 756, 761 (App. 1991). to make Rather, it demonstrated systemic problems serious enough the inadmissible. ultimate test results unreliable and therefore Tankersley, 191 Ariz. at 366, ¶ 21, 956 P.2d at 493. 11 Tenants contend Dr. Robbins only described her preferences for collecting and testing data and did not opine on general industry standards. We disagree. Dr. Robbins clearly related general industry standards. 24 Sampling and testing in 2003 and 2004 ¶29 Barnes testing of apartments and indoor in Dr. Lipsey testified taken from mold 2003 and 2004, two experts testimony at parties concur[red] any trial that the in time to sampling some Tenants more years or tenants had moved from the complex. about and Eastside after these The court precluded the because later document [e]xperts sampling exposure for both cannot to mold be extrapolated back or mycotoxin. Tenants argue the court erred in this ruling for various reasons, which we address in turn. ¶30 Tenants first contend that because the court previously denied Landlord s motion for partial summary judgment urged on the basis of its no-extrapolation argument, the court violated the law of the case by reaching a contrary decision in the context of the Frye hearing. operates in this context as The law-of-the-case doctrine a procedural policy against horizontal appeals rather than as a substantive limitation on the court s authority. Powell-Cerkoney v. TCR-Montana Ranch Joint Venture, II, 176 Ariz. 275, 278, 860 P.2d 1328, 1331 (App. 1993). In deciding that a question of fact mandated denial of the motion for partial summary judgment, the court did not rule that the 2003 and 2004 testing evidence would be admitted at trial. Thus, after hearing extensive testimony on the subject and making credibility determinations of expert witnesses at the 25 Frye hearing, the court was entitled to rule foundational objections without constraint. on Landlord s Id. at 279, 860 P.2d at 1332 (holding law of case doctrine not applied if prior decision did not actually decide issue in question). ¶31 Tenants also argue Landlord was estopped from asserting its position because it prevented sampling in 2001 by expert John Terranova after he made a visual inspection. Landlord disputes this version of events, pointing to a letter to Tenants counsel in July 2001 welcoming inspection of Tenantoccupied apartments for the purpose of taking samples. Tenants do not assert they raised this issue during or after the Frye hearing and fail to cite any ruling or even any evidence presented at the Frye hearing that supports its position. The scant evidence cited by the parties was presented in summary judgment proceedings, which are not the subject of this appeal. We are not required to scour eleven days of hearing transcripts to find evidence and any rulings related to Tenants estoppel argument; for this reason alone, we reject it. Cattle Co. v. Linsenmeyer, Tovrea Land & 100 Ariz. 107, 119, 412 P.2d 47, 55 (1966) (noting party failed to cite portion of transcript in support of facts and stating court is not required to search extensive record to discern such support). ¶32 Tenants finally argue the trial court erred in its ruling because they demonstrated that 2001 mold levels could be 26 extrapolated from the 2003 and 2004 results, and any deficiencies in the extrapolation methodology went to the weight of the evidence rather than its admissibility. Pursuant to Rule 703, an expert s opinion based on facts or data is admissible if the facts or data are of a type reasonably relied upon by experts in the particular field inferences upon the subject. Ariz. 521, (holding 527, 917 trial P.2d court forming opinions or See also Florez v. Sargeant, 185 250, must in 256 (1996) prevent the (citation admission omitted) of expert opinions if there is any serious question of admissibility of underlying facts comment. The or data issue pursuant before us to is Rule whether 703); the Rule trial 703 court correctly concluded that mold sampling and testing performed two or more years after Tenants moved from Eastside was not the type of data reasonably assessing indoor relied mold upon levels by at experts the time in the field in Tenants lived at Eastside. ¶33 Our review of the Frye hearing reveals support for the trial court s ruling. sample in possible. variables 2003 and extrapolate back to 2001, it s just not She based her opinion on the fact that too many could occur affect mold levels. generally Dr. Robbins testified [y]ou can t take a accepted during the interim period that would Dr. Robbins further testified that it is in the field 27 of industrial hygiene, and specifically in the area of sampling, that extrapolation to an earlier time period is not possible. ¶34 the None of Tenants experts contradicted Dr. Robbins on extrapolation issue. Dr. Lipsey expert who addressed the issue. was the only Tenants He testified that his testing in 2003 exposed indoor mold levels of a sick building but admitted he could not extrapolate what the levels of mold were in 2001, the relevant time frame. Although he indicated an estimate offer was possible, he methodology for doing so. did not one or provide a Dr. Lipsey could only rely on Dr. Sneller s data and the 2003 test results to infer that Landlord had not remediated the apartments during the interim period, as Landlord represented. He further admitted, however, he was unaware of what occurred at the apartments from 2001 until the testing in 2003, including knowing the levels of temperature and humidity, which affect mold growth. ¶35 This case is distinguishable from Broderick v. Coppinger, 40 Ariz. 524, 526, 14 P.2d 714, 715 (1932), which held that when the condition of machinery involved in an accident is at issue, it must, of course, appear that it was in substantially the same condition at the time of the test as at the time of the accident. possibility of outside access The court then stated that the to the machine in the interim period would not render the test results inadmissible but would 28 go to the weight of the evidence. 715. Id. at 526-27, 14 P.2d at Unlike a machine, which can remain unchanged over a period of time, however, the experts agreed that mold is a living thing that can change over time with variable conditions. ¶36 court In light of the above-described testimony, the trial acted within its discretion by concluding that test results of mold sampled two or more years after 2001 were not the type of data reasonably relied on by experts in the field in calculating mold levels for 2001. such general reliance as a Because Rule 703 requires condition for admitting opinions based on facts or data, the court properly sustained Landlord s objections Lipsey. 12 to the opinions offered by Mr. Barnes and Dr. As a consequence of our decision, we need not address the parties other arguments concerning the foundation for these opinions, including the propriety of the trial court s exclusion of exhibit 2. Exhibits 5 and 37 ¶37 During the Frye hearing, Tenants moved for admission of exhibit 5, which consisted of copies of Aerotech Laboratory notes and its chain of custody forms partially completed by Dr. 12 We are not persuaded to reach a different result in light of New Haverford Partnership v. Stroot, 772 A.2d 792, 799 (Del. 2001), which held the trial court did not err by admitting similar expert testimony. As the Delaware court noted, the matter was discretionary to the court and the record supported the court s ruling. Id. In this appeal, the trial court acted within its discretion by reaching a different conclusion. 29 Sneller. According to Tenants, the trial court erred by refusing to recall Dr. Sneller to allow him to lay foundation, refusing to permit Tenants to introduce deposition testimony, refusing to redact inadmissible portions of the exhibit, and failing to rule on the motion after Tenants filed an affidavit from Aerotech contentions. supporting admission. We reject these The portion of the transcript cited by Tenants shows the court explicitly allowed them to lay foundation for the exhibit through Dr. Sneller, but he was unable to do so. The cited transcript pages do not reflect any discussion or rulings on deposition testimony, redaction, or an affidavit, and we therefore Linsenmeyer, reject 100 Tenants Ariz. at claim 119, of 412 error P.2d on at these 55. bases. Finally, contrary to Tenants position, the court ruled on the request to admit exhibit other exhibits 5 by sustaining [Tenants] Landlord s reference in objections their June 6, 2006, which included exhibit 5. to memorandum all dated See Ruling entered July 14, 2006, p. 11. ¶38 moved After to reopen the the conclusion hearing of and the Frye supplement hearing, the Tenants record with exhibit 37, a compilation of documents concerning the chain of custody of samples taken from Eastside. motion, ruling: 30 The court denied the The exhibit is untimely and lacking basic foundational requirements. It would be inconsistent with the interests of justice and judicial economy to allow the [Tenants ] attorney additional opportunities to make the record he failed to make at the Frye hearing . . . . [Exhibit 37] contains a hodgepodge of materials. Some lack any foundation, some were previously ruled inadmissible, and all are untimely. Tenants argue only that the court erred because it initially ruled the exhibit admissible and reversed course . . . without making further factual findings. Tenants fail to cite the portion of the record reflecting the court s initial admission of the exhibit, and we do not find such support; we therefore reject this argument. at 55. Linsenmeyer, 100 Ariz. at 119, 412 P.2d Regardless, we do not discern any error in the court s refusal to reopen the already-lengthy hearing to permit Tenants to introduce additional evidence. See McCutchen v. Hill, 147 Ariz. 401, 406-07, 710 P.2d 1056, 1061-62 (1985) (holding courts have broad discretion in ruling on request to reopen evidence); Rule 611(a) ( The court shall exercise reasonable control over the mode and order of . . . presenting evidence so as to . . . (2) avoid needless consumption of time . . . . ). III. Motions for summary judgment ¶39 Prior to the Frye hearing, Landlord successfully moved for partial summary judgment on Tenants claims for intentional and negligent infliction of emotional distress and their request 31 for punitive damages. trial court granted Based on the Frye hearing record, the Landlord s renewed request for summary judgment on Tenants claims based on physical injuries. Tenants argue the court erred in each of these rulings. 13 We review the trial court s grant of summary judgment de novo. Sanchez v. City of Tucson, 191 Ariz. 128, 130, ¶ 7, 953 P.2d 168, 170 (1998). Summary judgment is warranted when the facts produced to support a 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). Our task is to determine whether any genuine issues of material disputed fact exist and, if not, whether the trial court correctly applied the substantive law. In re Estate of Johnson, 168 Ariz. 108, 109, 811 P.2d 360, 361 (App. 1991). A. Emotional distress Intentional infliction of emotional distress ¶40 emotional To prevail on its claim for intentional infliction of distress, Tenants were 13 required to prove that (1) Tenants also argue, without citations to the record or supporting authorities, that the trial court erred in striking the Mason Tenants statement of facts. We decline to consider this argument. See In re U.S. Currency in Amount of $26,980.00, 199 Ariz. 291, 299, ¶ 28, 18 P.3d 85, 93 (App. 2000) (holding court will not consider appellant s bald assertion made without elaboration or citation). 32 Landlord acted in an extreme and outrageous manner, (2) Landlord intended to cause emotional harm or recklessly disregarded a near certainty of causing such harm, and (3) Tenants suffered severe emotional distress. Ariz. 513, omitted). of law 516, ¶ 11, Citizen Publ g Co. v. Miller, 210 115 P.3d 107, 110 (2005) (citations The trial court ruled that Tenants failed as a matter to demonstrate the initial two elements, and summary judgment was warranted for that reason alone. partial Tenants argue the Landlord s intentional or reckless failure to properly address the profits at outrageous mold the problems at [T]enants conduct, and Eastside expense, the court all the while constituted therefore making extreme erred in and its ruling. 14 We disagree. ¶41 An action is extreme and outrageous if it falls at the very extreme edge of the spectrum of possible conduct and goes beyond all possible bounds of decency, [so as] to be regarded as atrocious[] and utterly intolerable in a civilized community. Watts v. Golden Age Nursing Home, 127 Ariz. 255, 257, 619 P.2d 1032, 1035 (1980) (citations omitted); see also Restatement (Second) of Torts § 46(1) cmt. d (1965) ( Generally, the case is one in which the recitation of the facts to an 14 Tenants do not repeat their argument made to the trial court that Landlord intentionally inflicted emotional distress by threatening to contact Child Protective Services about some Tenants. 33 average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous! ). ¶42 We agree with the trial court that Landlord s alleged failure to tortiuous, conduct sufficiently did not remediate fall justifying a emotional distress. within claim mold, the for while narrow potentially band intentional of extreme infliction of Although Landlord s acts and omissions may have lacked justification, Tenants do not point to any evidence of conduct so extreme as to go beyond all possible bounds of decency and that would arouse community resentment and outrage, as required to maintain a claim for intentional infliction of emotional distress. Country Escrow Serv. v. Janes, 121 Ariz. 511, 513, 591 P.2d 999, 1001 (App. 1979); Restatement (Second) of Torts § 46(1) cmt. d; compare Watts, 127 Ariz. at 257, 619 P.2d at timely 1035 (holding inform wife unjustifiable, but nursing of did home s husband s not rise to neglect and failure to terminal illness was level extreme and of outrageous conduct); Pankratz v. Willis, 155 Ariz. 8, 18, 744 P.2d 1182, 1192 (App. 1987) (noting [c]onduct may be otherwise tortious, and even illegal, and not be outrageous ); Janes, 121 Ariz. at 513, 591 P.2d at 1001 (holding landlord s wrongful eviction did not amount to extreme or outrageous conduct); but see Thomas v. Goudreault, 163 Ariz. 159, 167, 786 P.2d 1010, 1018 (App. 1989) (holding tenant 34 could recover in tort for emotional distress for landlord s alleged violations of the habitability provision of the Arizona Residential Landlord and Tenant Act). ¶43 Landlord s alleged actions and inaction in addressing the mold problem are markedly different from the actions of the employer sued in Ford v. Revlon, Inc., 153 Ariz. 38, 734 P.2d 580 (1987), which Tenants cite in support of their position. Ford, an employer failed complained her supervisor threatened her job, company picnic. and to take had even made action after sexually physically an lewd employee advances, attacked Id. at 39-40, 734 P.2d at 581-82. In her at a Although the employee expressed fear and severe distress and asked for help on multiple occasions over the course of a year, the employer took no action except to issue a letter of censure against the supervisor. Id. at 40-41, 734 P.2d at 582-83. Under these circumstances, the supreme court concluded the employer acted outrageously and recklessly disregarded the near certainty the employee would experience emotional distress due to continued sexual harassment. Id. at 43, 734 P.2d at 585. Permitting an employee to continue sexually harassing and assaultive behavior against another employee cannot be equated with a landlord failing to properly remediate mold under circumstances like the one presented by the record in this case. 35 Negligent infliction of emotional distress ¶44 Arizona does not recognize a claim for negligent infliction of emotional distress in the absence of resulting physical injuries. Gau v. Smitty s Super Valu, Inc., 183 Ariz. 107, 109, 901 P.2d 455, 457 (App. 1995); DeStories v. City of Phoenix, 154 Ariz. 604, 610, 744 P.2d 705, 711 (App. 1987). According to their response to Landlord s motion for partial summary judgment, Tenants claimed they suffered emotional distress as a result of witnessing injuries to people with whom Tenants had a close personal relationship ( bystander theory ). The trial court granted summary judgment to Landlord on this claim because their ph y s i c a l to mo l d injuries . although . health Tenants . resulted problems [they] from suppl[ied] do the not information resulting from differentiate shock of expos ure which witnessing about if injury any, to a closely related person. . . . If the injur[i]es are caused by mold, they could not have been caused by the emotional shock caused by the alleged negligent infliction of emotional distress. ¶45 Tenants first argue the trial court erred in its ruling because the law does not require that the conduct causing emotional distress also result in physical injury; it is enough that emotional Thus, because distress Tenants is accompanied suffered 36 by physical physical injury injury. from mold exposure, they contend they demonstrated a claim for negligent infliction of emotional distress under the bystander theory. disagree. We Our supreme court has clearly held that [i]n order for there to be recovery for the tort of negligent infliction of emotional distress, the shock or mental anguish of the plaintiff must be manifested as a physical injury. Keck v. Jackson, 122 Ariz. 114, 115, 593 P.2d 668, 669 (1979); see also Restatement (Second) of Torts § 436A (1965) (providing no liability if conduct results in emotional disturbance alone without bodily harm). The trial court correctly ruled, accordingly, that Tenants were required to show physical injuries as a result of witnessing injuries to persons with a close relationship. 15 ¶46 Tenants next argue the court erred because they provided sufficient factual bases to demonstrate their claim. They concede their affidavits submitted to the court concerning 15 Tenants briefly contend the trial court erred in making no division between bystander derivative liability and actual illness and that [t]he court should have made specific findings as to each of the plaintiffs. We reject these contentions because (1) Tenants bore the burden of arguing and supporting their separate theories of liability to defeat summary judgment, see Orme School, 166 Ariz. at 310, 802 P.2d at 1009, and (2) the trial court was not required to make findings of facts, especially when neither party requested it to do so, see Orkin Exterminating Co. v. Robles, 128 Ariz. 132, 134, 624 P.2d 329, 331 (App. 1980) (holding trial court not required to make finding of facts pursuant to Arizona Rule of Civil Procedure ( ARCP ) 52(a) when action was resolved by summary judgment). Notably, Tenants fail to identify on appeal which of them, if any, presented derivative claims based on seeing illness and death of family members, and we are unable to make this identification. 37 lost possessions and fear of physical harm alone were not sufficient to withstand summary judgment but contend that when read with the deposition excerpts provided to the court, sufficient information existed to defeat summary judgment. reject this contention for two reasons. struck the affidavits because they First, the trial court were identical, specific supporting facts, and were conclusory. challenge this ruling on appeal. We Second, lacked Tenants do not Tenants fail to develop their argument by identifying which deposition testimony among the multiple excerpts provided the court demonstrated the requisite manifestations of physical injuries. See In re U.S. Currency in Amount of $26,980.00, 199 Ariz. at 299, ¶ 28, 18 P.3d at 93. ¶47 to Tenants also argue the trial court erred by refusing allow omitted them pages to of supplement exhibits the after record the with hearing unintentionally on the motion. Tenants fail to identify which pages among hundreds of pages of exhibits were originally statement of facts. error. omitted See id. from Tenants original Regardless, we do not discern The trial court has discretion to permit or disallow supplemental filings after a hearing. See 7-G Ranching Co. v. Stites, 4 Ariz. App. 228, 231 n.1, 419 P.2d 358, 361 n.1 (1966) ( Whether to allow filing of affidavits after the hearing is within the discretion of the trial court. ). 38 Given the trial court s prior order prohibiting such supplemental filings due to Tenants well-established pattern of submitting them, the court did not abuse its discretion by denying the request. B. ¶48 Physical injuries Tenants contend the trial court erred by granting summary judgment in favor of Landlord regarding Tenants claims for physical injuries because they presented ample evidence of mold exposure and causation at the Frye hearing. The court granted the motion for summary judgment in light of its rulings precluding Tenants experts from testifying regarding mold test results and causation of health problems. In light of our decision reversing the court s preclusion of three of Tenants causation experts, we reverse the entry of summary judgment and remand for additional proceedings. C. ¶49 on Punitive damages The trial court granted summary judgment for Landlord Tenants request for punitive damages, reasoning Tenants allegations, if proved true, did not evidence an evil mind justifying such damages. Tenants argue the trial court erred in this ruling because a reasonable jury could reach the opposite conclusion. ¶50 A court properly awards punitive damages in tort actions to punish the wrongdoer and deter others from acting similarly. Linthicum v. Nationwide Life Ins. Co., 150 Ariz. 39 326, 330, 723 P.2d 675, 679 (1986). These damages appropriate only in the most egregious cases, however. 331, 723 P.2d at 680. are Id. at Thus, a court may award punitive damages only if clear and convincing evidence exists that the tortfeasor possessed an evil mind outrageous conduct. while engaging in aggravated and Id. at 331-32, 723 P.2d at 680-81. A tortfeasor acts with an evil mind if it should be consciously aware of the evil of his actions, of the spitefulness of his motives or that his conduct is so outrageous, oppressive or intolerable in that it creates a substantial risk of tremendous harm to others. Id. at 330, 723 P.2d at 679 (citing Rawlings v. Apodaca, 151 Ariz. 149, 162, 726 P.2d 565, 578 (1986)). gross negligence or even reckless disregard does not support an award of punitive damages. of Mere circumstances Volz v. Coleman Co., 155 Ariz. 567, 570, 748 P.2d 1191, 1194 (1987). ¶51 Our review of the record trial court erred in its ruling. evidence presented by Tenants, does not persuade us the Distilled to its essence, the viewed in the light most favorable to them, demonstrates Landlord substantially ignored the mold problem at Eastside and made anemic remediate it in order to maximize profits. 16 16 Tenants assert that cite any portion of therefore disregard Amount of $26,980.00, efforts to Although Tenants Landlord threatened them, but they do not the record to support this assertion; we the assertion. In re U.S. Currency in 199 Ariz. at 299, ¶ 28, 18 P.3d at 93. 40 contend Landlord acted with an evil mind by consciously disregarding a substantial risk to others, they do not point to any evidence in this voluminous record suggesting Landlord was aware that failing to sufficiently remediate mold could cause severe health problems of the type alleged by Tenants. assuming Landlord s acts and omissions constituted Even gross negligence or even recklessness, this evidence, without more, failed to support a conclusion that Landlord acted with an evil mind justifying punitive damages. Compare Volz, 155 Ariz. at 571, 748 P.2d at 1195 (concluding punitive damages not justified by stove manufacturer s failure to recall stoves with defective caps or warn about defect as manufacturer merely negligent or grossly negligent), with Hooper v. Truly Nolen of America, Inc., 171 Ariz. 692, 694-95, 832 P.2d 709, 711-12 (App. 1992) (affirming punitive damages against pest control service with longstanding knowledge that its employees routinely misapplied toxic chemicals in homes and which actively concealed this practice). IV. ¶52 Motions to amend complaint Tenants argue the trial court erred by denying their motions to amend the complaint to (1) reassert wrongful death claims that had been accidentally dropped in the course of previously amending the complaint, and (2) adding Sienna Ruhoff as a plaintiff. We review the denial of a motion to amend the 41 complaint for an abuse of discretion. Corrections, 1992). 172 Ariz. 472, 474, Bishop v. Ariz. Dep t of 837 P.2d 1207, 1209 (App. The court acts within its discretion to deny a motion to amend if it finds undue delay in the request, bad faith or a dilatory motive on the part of the movant, undue prejudice to the opposing party as a result of the amendment, or futility in the amendment. Id. at 474-75, 837 P.2d at 1209-10. amend should be granted liberally. Leave to Owen v. Superior Court, 133 Ariz. 75, 79, 649 P.2d 278, 282 (1982). Wrongful death claims ¶53 In September 2002, Tenants initiated the Sweigert case and asserted claims against Landlord for the wrongful deaths of two infants due to exposure to indoor mold. After Tenants amended the complaint twice, the court consolidated the case with the older Abad case in February 2003. filed a adding third-amended new identified complaint defendants; in the in although caption, the the the amendment, wrongful the death parties claims, conducted retained consolidated Sweigert wrongful accidentally omitted from the complaint. In May, Tenants death action Tenants were counts were Regardless, after this discovery applicable concerning the experts, and discussed the claims in settlement negotiations. ¶54 After being alerted to the omission in November 2005, Tenants moved to amend the complaint in January 2006 to reassert 42 the wrongful death claims and attached a proposed fourth-amended complaint. Tenants In a delay February in ruling, remedying the the trial error as court described inexplicable but found the delay was not undue in the context of the lengthy case and claims. granted The Tenants court request refused to to reassert accept the the omitted proposed amended complaint, however, because it also added plaintiffs and one defendant who Thereafter, were in additionally not March proposed part and of the April, amended original Tenants complaints complaint. submitted that made three changes beyond merely reasserting the wrongful death claims, and the court rejected them. Finally, at the court s direction, Tenants moved to file a seventh-amended complaint in May that reasserted the wrongful death claims and made other changes to purportedly conform to the evidence. 17 Landlord objected on multiple bases, including that the wrongful death claims should not be added because doing adduced at so the would Frye be futile hearing, in which light had of been the evidence ongoing. In September, after ruling on the Frye-related motions, the court 17 No party cites to a sixth-amended complaint, and it is not readily found in the voluminous record. As the court denied an oral motion to amend the complaint presented at the hearing on Landlord s motion to strike, however, it appears Tenants presented a sixth-amended complaint at that hearing. It further appears that a new motion to amend was required only to the extent Tenants wished to amend the complaint for reasons beyond merely reasserting the previously alleged wrongful death claims. 43 denied Tenants final attempt to amend the complaint for two reasons. opinion SIDS First, the court reasoned its preclusion of expert evidence death that rendered indoor the exposure proposed to mold amended could complaint cause a futile. Second, the court found that Tenants had acted with undue delay by repeatedly failing to correct the original omission as permitted and instead attempting to also correct other errors and omissions. The court found these actions were undertaken in bad faith causing delay and prejudicing the efficient and orderly litigation of this case. ¶55 In light of our decision that the trial court erred by precluding expert opinion evidence on causation, see supra ¶¶ 13-14, the proposed amendment to reassert the original wrongful death claims is not futile. We also agree with Tenants that the trial court erred by denying the motion to amend based on undue delay to the extent wrongful death claims. Tenants sought to reassert the omitted The court found no undue delay in its February 2006 ruling and Tenants immediately attempted to submit amended complaints but were not successful in their efforts as they also requested other changes, which the court rejected. Although the court did not abuse its discretion by finding undue delay in Tenants attempts to add new parties and allegations, in light of Tenants timely attempts to reassert the wrongful death claims after all parties had litigated the claims, the 44 lack of any apparent prejudice to Landlord, and the charge to liberally allow amendments, the court erred by refusing to allow this amendment. We therefore reverse the portion of the judgment denying the motion to amend the complaint to the extent Tenants sought to reassert the original wrongful death claims erroneously dropped at the time Tenants filed their third- amended complaint. Sienna Ruhoff ¶56 In their 2002 complaint initiating the Abad case, Tenants named Sienna Ruhoff as a plaintiff in her representative capacity as the mother of Jonathan Ruhoff and Nathaniel Ruhoff but did not name her as a plaintiff in her individual capacity. In April 2006, Tenants moved to name Ruhoff as a plaintiff, and the court denied the motion due to considerations delay, futility, and resulting prejudice to Landlord. of undue Tenants contend the trial court erred in its ruling because Ruhoff was omitted from the caption of the complaint due to clerical error, and she was entitled to relief therefore pursuant to ARCP 60(c). ¶57 Landlord argues we lack jurisdiction to consider the propriety of the court s ruling because Ruhoff did not appeal. Tenants do not respond to this contention in their reply. agree with Landlord. We Arizona Rule of Civil Appellate Procedure 8(c) requires that a notice of appeal specify the party or parties taking the appeal. Because Ruhoff did not appeal in 45 her individual capacity, we lack jurisdiction to consider her challenge to the court s ruling. Bennett v. Baxter Group, Inc., 223 Ariz. 414, 423, ¶ 39, 224 P.3d 230, 239 (App. 2010) (holding court lacked jurisdiction to hear appeal of parties who did not file notice of appeal); compare Udy v. Calvary Corp., 162 Ariz. 7, 10-11, omission 780 of P.2d child s 1055, name 1058-59 from (App. notice of 1989) appeal (concluding that listed parents in representative capacity was technical error that was not misleading or prejudicial and therefore did not prevent perfection of appeal). V. ¶58 Dismissal of Wasatch Premier Properties, L.L.C. Tenants finally argue the trial court erred by dismissing Wasatch Premier Properties, L.L.C. ( Premier ) from the Sweigert case. In ruling on a motion to dismiss for failure to state a claim, the trial court accepts as true the facts alleged in the complaint. Newman v. Maricopa County, 167 Ariz. 501, 503, 808 P.2d 1253, 1255 (App. 1991). The motion should be denied unless it appears beyond doubt that the plaintiff can prove no set of facts entitle him to relief. court s ruling de novo. in support of his claim which would Id. (Citation omitted). We review the Jeter v. Mayo Clinic Arizona, 211 Ariz. 386, 391, ¶ 18, 121 P.3d 1256, 1261 (App. 2005). ¶59 Premier is a limited liability company that is a member of Wasatch Pool Holdings, L.L.C. ( Pool Holdings ), which 46 in turn owns Eastside. Landlord moved to dismiss Premier from the Sweigert case alleging Premier is not subject to liability by merely holding liability company. membership in a properly named limited The trial court granted the motion on the basis of the expiration of the statute of limitations a basis not urged by Landlord. Landlord concedes the court dismissed Premier for an improper reason but asks us to affirm regardless as dismissal was warranted for the reason urged to the trial court by Landlord. ¶60 Landlord persuasively argues Premier cannot liable merely because it is a member of Pool Holdings. be held Section 29-651, A.R.S. (1998), provides: Except as provided in this chapter . . . a member . . . of a limited liability company is not liable, solely by reason of being a member . . . for the . . . liabilities of the limited liability company whether arising in contract or tort, under a judgment, decree or order of a court or otherwise. Nevertheless, we reject Landlord s contention because Tenants complaint in the Sweigert case did not allege Premier is liable based on its ownership of Pool Holdings. Rather, Tenants alleged Premier owned, operated, and/or managed Eastside and caused the events underlying the lawsuit through its negligence, among other things, in failing to remediate mold. Thus, accepting the allegations of the complaint as true, as we 47 must, we cannot uphold the trial court s dismissal of Premier from the Sweigert Landlord. 18 case for the alternate basis urged by We therefore reverse the portion of the judgment dismissing Premier from the Sweigert case. VI. ¶61 Summary of holdings The trial court misapplied Frye to preclude the expert opinion testimony of Drs. Goldstein, Hooper, and Marinkovich as, with exceptions not material examinations, experiences, conclusions. The here, and they relied studies admissibility of to this on their reach evidence, own their however, remains dependent on application of Rules 702, 703 and other rules of evidence. The testimony of Dr. Dahlgren. ¶62 The trial court court did not err by striking the discretion by See supra ¶¶ 6-18. acted within its precluding opinion testimony from Dr. Sneller. The accumulation of missing information and errors in Dr. Sneller s collection, storage, and shipping procedures affected the admissibility of the evidence rather than merely its weight. Further, the court did not err by precluding testimony from Barnes and Dr. Lipsey. 18 In a footnote set forth in its motion to dismiss, Landlord recognized that Tenants had alleged negligent acts by Premier in their complaint but contended dismissal was proper as no one questioned that Premier was named solely because it owned Pool Holdings. Consequently, Landlord alternatively moved for summary judgment. Because Landlord failed to comply with ARCP 56(c), and its factual allegation was not supported by reference to the record, it was not entitled to relief on this basis. 48 The record supports the court s conclusion that test results of mold sampled two or more years after 2001 were not the type of data reasonably relied on by experts in the field in calculating mold levels for 2001. Finally, the refusing to admit exhibits 2, 5, and 37. court did not err by See supra ¶¶ 19-38. ¶63 The trial court correctly granted summary judgment to Landlord on Tenants claims for intentional infliction of emotional distress, negligent infliction of emotional distress, and Tenants request for punitive damages. In light of our decision that the court erred by precluding opinion testimony from Drs. Goldstein, Hooper, and Marinkovich based solely on Frye principles, we reverse the court s grant judgment on Tenants physical injury claims. of summary See supra ¶¶ 39- 51. ¶64 In precluding light Drs. of our decision Goldstein, that Hooper, and the court erred Marinkovich by from testifying based solely on Frye principles, Tenants motion to amend to assert a seventh-amended complaint was not futile. We also decide the court incorrectly ruled that Tenants proceeded with undue delay in attempting to amend their complaint to the extent they sought to reassert the wrongful death accidentally omitted from a prior amended complaint. claims The court did not err by denying the motion to amend the complaint in other ways. We do not decide whether the court correctly denied 49 the motion to amend to list Sienna Ruhoff as a plaintiff because she is not a party to this appeal in her individual capacity. See supra ¶¶ 52-57. ¶65 Landlord concedes the trial court erred by dismissing Premier from the Sweigert case applicable limitations period. the court s grounds. ruling can be based on expiration of the We disagree with Landlord that upheld, nonetheless, on alternate See supra ¶¶ 58-60. CONCLUSION ¶66 For the foregoing reasons we affirm in part, reverse in part and remand for further proceedings consistent with this decision. /s/ Ann A. Scott Timmer, Chief Judge CONCURRING: /s/ Patricia K. Norris, Presiding Judge /s/ Maurice Portley, Judge 50

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