Henke et al v. Hospital et al

Argument summary

AI-generated — not an official transcript or court record.

1. Plaintiff counsel argued that the trial court improperly conflated the expert's burden of production regarding probable causation with the jury's exclusive function to determine if the totality of evidence meets the clear and convincing standard.
2. The justices questioned whether an expert must explicitly state that causation is 'highly probable' to satisfy the prima facie case in emergency room contexts, or if establishing 'probable' causation is sufficient for the jury to then assess the higher burden of proof.
3. Defendant counsel contended that allowing a jury to infer 'highly probable' causation from an expert's testimony of only 'probable' causation would permit laypersons to speculate on medical matters outside their expertise.
4. The court explored whether the legislature's intent to protect emergency room providers under A.R.S. § 12-572 requires the heightened clear and convincing standard to be part of the prima facie case established by expert testimony, rather than solely a jury instruction.
5. Defendant counsel argued that admitting an expert affidavit stating only 'probable' causation in a clear and convincing evidence case would be inadmissible because it fails to meet the plaintiff's burden of proof.
6. The justices discussed procedural rules regarding the introduction of new expert affidavits, with defendant counsel asserting that Rule 56(d) is the exclusive remedy for introducing new evidence to overcome a summary judgment motion.

Recordings

1. Recording · PT46M28S · Captions available