Opinion
No. 2 CA-CV 2014-0040
07-16-2014
JAMES M. ALCALA, Plaintiff/Appellant, v. PENTAIR WATER POOL AND SPA, INC., Defendant/Appellee.
Kevin M. Arnold, P.L.L.C., Tucson By Kevin M. Arnold Counsel for Plaintiff/Appellant Quarles & Brady LLP, Milwaukee, Wisconsin By Mark A. Kircher, Lars E. Gulbrandsen, and Eric W. Matzke and Quarles & Brady LLP, Phoenix By Ryan S. Patterson Counsel for Defendant/Appellee
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND
MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c); Ariz. R. Civ. App. P. 28(c).
Appeal from the Superior Court in Pima County
No. C20108860
The Honorable Ted B. Borek, Judge
AFFIRMED
COUNSEL
Kevin M. Arnold, P.L.L.C., Tucson
By Kevin M. Arnold
Counsel for Plaintiff/Appellant
Quarles & Brady LLP, Milwaukee, Wisconsin
By Mark A. Kircher, Lars E. Gulbrandsen, and Eric W. Matzke
and Quarles & Brady LLP, Phoenix
By Ryan S. Patterson
Counsel for Defendant/Appellee
MEMORANDUM DECISION
Judge Vásquez authored the decision of the Court, in which Judge Howard and Judge Miller concurred. VÁSQUEZ, Judge:
¶1 In this products-liability action, James Alcala appeals from the trial court's judgment entered after a jury verdict in favor of appellee Pentair Water Pool and Spa, Inc. Alcala argues the court erred by admitting evidence of his marijuana use. For the reasons stated below, we affirm.
Factual and Procedural Background
¶2 "We view the facts in the light most favorable to upholding the jury's verdict." Jimenez v. Wal-Mart Stores, Inc., 206 Ariz. 424, ¶ 2, 79 P.3d 673, 674 (App. 2003). In May 2010, Alcala was performing routine maintenance on a pool filter when it exploded. Approximately six months later, he filed a lawsuit against various defendants, including Pentair, which manufactured the filter, alleging claims of negligence, products liability, breach of warranty, and punitive damages. He claimed that as a result of the accident he "suffered severe and permanent injuries to his head, neck, skull, brain, face, left eye, teeth and jaw, all of which . . . caused him extreme physical and mental pain and cognitive deficits." Alcala later admitted "operator error" when servicing the filter but nonetheless disputed "the cause of the operator error," suggesting it was a design defect or inadequate instructions.
Only Alcala's claims against Pentair proceeded to trial.
¶3 During discovery, Pentair learned of Alcala's marijuana use both before and after the accident. Alcala stipulated that marijuana was found in his work truck the day of the accident and that he tested positive for the presence of THC metabolites five days after the accident. Alcala admitted to his psychologist, Dr. Marion Selz, that he had used marijuana for nine years, starting when he was fourteen years old until the fall of 2009, and that he had used the drug after the accident while he was being treated by Selz. He also told one of his medical experts, Dr. Shannah Biggan, a neuropsychologist, that he was using marijuana in May 2011, when he reported continued "cognitive challenges."
Tetrahydrocannabinol.
¶4 Before trial, Alcala filed a motion in limine to prohibit Pentair "from eliciting testimony concerning any alleged possession or use by [him] of marijuana near the time of the subject accident or during the course of his medical treatment following his injury." In response, Pentair argued that Alcala's marijuana use was "relevant to the issue of causation, because there is sufficient evidence to support an inference that [he] was under the influence of marijuana at the time of the accident." Pentair further maintained that Alcala's "past and present marijuana use [wa]s relevant because it ha[d] a tendency to make a fact that [Alcala] seeks to prove—that his neuropsychological deficits were caused by his accident—less probable."
¶5 After a hearing, the trial court granted Alcala's motion "with regard to marijuana at the time of the incident" but denied it "with regard to affecting [Alcala]'s post-incident recovery if (1) there is evidence in the record that he was using it during post-recovery and (2) there is testimony that it would affect his recovery, which goes to damages." When asked to clarify its ruling, the court explained that, if Pentair "la[id] the foundation through the experts that chronic use in adolescen[ce] prior to the accident affects neurological function and can account for the deficits that are being complained of currently, th[en] that can come in for purposes of . . . damages." On the first day of trial, however, the court seemingly limited its prior ruling, explaining that "the only evidence at all about use of marijuana comes from . . . Selz, and if she says that and she has in her record that he told her that he was using subsequently and he was told not to, then the marijuana can come in from that standpoint only." The court then stated, "[a]nything pre-incident is out."
¶6 Alcala called Biggan as his first medical expert to testify at trial. On direct examination, Biggan stated that "[w]hen [she] saw . . . Alcala in May of 2011, he told [her] that he was using marijuana." On cross-examination, she explained that she had instructed Alcala "to refrain from using drugs" in August 2010 and that she had likely repeated the instruction in May 2011 upon his admission of continued post-accident marijuana use. Biggan also opined that "daily use of marijuana could result in slower processing speed on neuropsychological tests."
¶7 Alcala also called Dr. Erin Bigler, a neuropsychologist, to testify. During direct examination, Alcala's counsel asked Bigler what medical problems Alcala had experienced before the accident. Bigler responded, "[m]aybe some depression issues, maybe some use of marijuana." During cross-examination, Bigler explained that Alcala had told Selz "he smoked marijuana daily for nine years" before the accident, and he described such use as "chronic." He further testified that "literature supports the conclusion that marijuana use during adolescence may have long-term negative consequences for cognitive, behavioral, psychological, and neuropsychological health" and that daily marijuana use "might have a minimal effect" on neuropsychological testing. Upon questioning by Pentair's counsel, Bigler also discussed his 1999 study examining "the effects of substance abuse and traumatic brain injury." Neither party called Selz to testify at trial.
A digital video disc recording of Bigler's deposition testimony was introduced at trial in lieu of live trial testimony. Although the record on appeal includes a complete transcript of the deposition, we do not have an excised copy that contains only the portion of the testimony played for the jury. We have attempted to discern the portion of the recording that was played for the jury by comparing the deposition transcript to the transcript of the hearing in which the trial court addressed the objections to Bigler's testimony.
¶8 During trial, Alcala withdrew his claim for punitive damages, and the jury found in favor of Pentair on the remaining products-liability claims. The trial court entered a final judgment, and this appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21, 12-2101(A)(1).
Alcala appealed the first judgment entered in October 2012; however, this court dismissed that appeal because the judgment, which dismissed two parties without prejudice and did not include language pursuant to Rule 54(b), Ariz. R. Civ. P., was not final and appealable. Alcala v. Pentair, Inc., 2 CA-CV 2013-0048 (order filed Nov. 21, 2013). The trial court then entered an amended judgment in December 2013, from which Alcala filed another notice of appeal. But, because the court entered the amended judgment before our mandate in the first appeal had issued, it was void and not appealable. See In re Marriage of Flores & Martinez, 231 Ariz. 18, ¶¶ 10-12, 289 P.3d 946, 948-49 (App. 2012). Pursuant to Rule 9.1, Ariz. R. Civ. App. P., we suspended the appeal and revested jurisdiction in the trial court for entry of a final, appealable judgment. The trial court did so, and Alcala timely filed an amended notice of appeal.
Discussion
¶9 Alcala contends the trial court erred by admitting evidence of his marijuana use. Specifically, he challenges the admission of both his pre- and post-accident marijuana use, raising several arguments but primarily asserting that this evidence was unfairly prejudicial. "We review the trial court's evidentiary rulings for a clear abuse of discretion." Higgins v. Assmann Elecs., Inc., 217 Ariz. 289, ¶ 35, 173 P.3d 453, 462 (App. 2007).
¶10 Generally, all relevant evidence is admissible. Ariz. R. Evid. 402. However, even relevant evidence may be excluded if "its probative value is substantially outweighed by a danger of . . . unfair prejudice." Ariz. R. Evid. 403. "The balancing of [probative value and unfair prejudice] under Rule 403 'is peculiarly a function of trial courts, not appellate courts.'" Crackel v. Allstate Ins. Co., 208 Ariz. 252, ¶ 53, 92 P.3d 882, 896 (App. 2004), quoting Yauch v. S. Pac. Transp. Co., 198 Ariz. 394, ¶ 26, 10 P.3d 1181, 1190 (App. 2000); see also Hudgins v. Sw. Airlines, Co., 221 Ariz. 472, ¶ 13, 212 P.3d 810, 819 (App. 2009). Accordingly, when reviewing a trial court's ruling under Rule 403, we view the evidence "in the light most favorable to the proponent, maximizing its probative value and minimizing its prejudicial effect." Conant v. Whitney, 190 Ariz. 290, 292, 947 P.2d 864, 866 (App. 1997), citing State v. Castro, 163 Ariz. 465, 473, 788 P.2d 1216, 1224 (App. 1989).
¶11 We first address the evidence of Alcala's post-accident marijuana use. Alcala argues that, "given the extent of physical brain damage evidenced by unrebutted objective diagnostic studies, the probative value of the evidence was minimal, at best," and it "had the potential for significant prejudicial effect." He further asserts that this evidence was "purely prejudicial" because it "left the jury with the impression that Alcala was a chronic marijuana user who may have been using marijuana at the time of the subject incident."
¶12 As Alcala points out, the trial court repeatedly expressed its concerns about the "extraordinarily" prejudicial effect of any evidence concerning Alcala's marijuana use. Consequently, the court placed restrictions on the admission of this evidence. However, the court ultimately concluded that the probative value of Alcala's post-accident marijuana use was not substantially outweighed by the danger of unfair prejudice, specifically on the issue of damages.
¶13 As a threshold matter, the trial court did not err in concluding that evidence of Alcala's post-accident marijuana use was probative to the issue of damages. Cf. Sheehan v. Pima Cnty., 135 Ariz. 235, 239, 660 P.2d 486, 490 (App. 1982) (in wrongful-death action, decedent's heroin use relevant to damages). Alcala sought damages for cognitive deficits he claimed resulted from the accident. Neuropsychological tests indicated Alcala had "cognitive problems," including slower processing speed. And, the experts acknowledged that marijuana use can affect neuropsychological testing, thereby suggesting Alcala's problems were not caused solely by the accident. "Decisions under Rule 403 involve a balancing process that is truly discretionary with the trial judge." Readenour v. Marion Power Shovel, 149 Ariz. 442, 450, 719 P.2d 1058, 1066 (1986), citing City of Phoenix v. Geyler, 144 Ariz. 323, 328-29, 697 P.2d 1073, 1078-79 (1985). And, "[i]n admitting the evidence in question, the trial judge did not abuse the discretion given him by Rule 403." Id.
¶14 Alcala nevertheless suggests that evidence of his post-accident marijuana use was not relevant given his admission of operator error when servicing the pool filter. He maintains that "the possible reasons for that error . . . had little or no probative value." But, Alcala's argument overlooks the fact that the trial court admitted the evidence solely on the issue of damages, not causation. See A.R.S. § 12-681(5) (defining scope of products-liability action). Notably, Alcala could have requested a limiting instruction explaining to the jury that the evidence was admitted solely on the issue of damages, see Ariz. R. Evid. 105, but he did not do so. "When evidence is admitted at trial for a limited purpose, a party waives the right to raise on appeal the misuse of the evidence by failing to object or request a limiting instruction in response to an improper use of the evidence." State v. Connor, 215 Ariz. 553, ¶ 35, 161 P.3d 596, 606 (App. 2007).
¶15 We next turn to the evidence of Alcala's pre-accident marijuana use. Alcala similarly argues that the admission of this evidence was "clear error" because it "had a prejudicial effect that greatly outweighed any possible claimed probative value." But, the trial court explicitly precluded this evidence. Moreover, it was Alcala who first introduced evidence of his pre-accident marijuana use through the direct examination of his own expert, Bigler, when he asked Bigler what medical problems Alcala had experienced before the accident. Because Alcala first raised the issue of his pre-accident marijuana use, he may not now complain of its admission. See Acheson v. Shafter, 107 Ariz. 576, 579, 490 P.2d 832, 835 (1971) ("[O]ne may not invite error at the trial and then assign it as error on appeal."); cf. City of Chandler v. Ariz. Dep't of Transp., 216 Ariz. 435, ¶ 20, 167 P.3d 122, 128 (App. 2007) (appellant who filed lawsuit rather than requesting administrative review first cannot complain on appeal about being denied that opportunity).
And, even if Bigler's response to this question could be construed as unexpected or unsolicited, Alcala did not move to strike it.
¶16 Moreover, "where one party injects improper or irrelevant evidence . . . , the 'door is open,' and the other party may have a right to retaliate by responding with . . . evidence on the same subject." Pool v. Superior Court, 139 Ariz. 98, 103, 677 P.2d 261, 266 (1984). Because Alcala first introduced the evidence, Pentair was free to examine Bigler on Alcala's pre-accident marijuana use. Bigler's testimony during cross-examination that Alcala had told Selz "he smoked marijuana daily for nine years" and that such use constitutes chronic use was therefore proper. Likewise, Pentair was allowed to elicit Bigler's opinion on whether Alcala's pre-accident marijuana use had any effect on his recovery. See Podol v. Jacobs, 65 Ariz. 50, 58, 173 P.2d 758, 763-64 (1946) ("If the cross-examination is within the scope of the direct examination, it is not objectionable, even though it ha[s] the effect of developing [a] defensive matter."); see also Am. Family Mut. Ins. Co. v. Grant, 222 Ariz. 507, ¶ 15, 217 P.3d 1212, 1217 (App. 2009) ("[T]he scope of expert cross-examination is 'expansive' and 'free-ranging.'"), quoting Emergency Care Dynamics, Ltd. v. Superior Court, 188 Ariz. 32, 35-37, 932 P.2d 297, 300-01 (App. 1997). Thus, Bigler's testimony concerning the effects of marijuana use on cognitive health and neuropsychological testing was also proper.
¶17 In a related argument, Alcala challenges the admission of the marijuana evidence to the extent it rested upon "previously undisclosed medical studies." These studies apparently consisted of Bigler's own study in 1999, as well as three additional studies by other authors. But, the only study discussed at trial was Bigler's 1999 study. The trial court precluded evidence of the three additional studies, and it does not appear they were introduced at trial.
¶18 During Bigler's deposition, Pentair questioned him about the 1999 study during cross-examination, and Alcala objected to it as not previously disclosed. However, in his subsequently filed motion in limine, Alcala objected only to the studies of the other authors as not having been timely disclosed and generally requested the court strike the entire portion of that testimony, but he never specifically objected to the 1999 study on any ground. And, at the hearing to determine what portions of Bigler's testimony would be played for the jury, Alcala never objected to the admission of the 1999 study. Thus, Alcala has waived this argument on appeal. See Acheson, 107 Ariz. at 579, 490 P.2d at 835; cf. State v. Eastlack, 180 Ariz. 243, 255, 883 P.2d 999, 1011 (1994) (withdrawal of motion waives objection).
¶19 Even assuming Alcala properly objected to the 1999 study, we find no error in its admission. Bigler was Alcala's own expert. It was therefore Alcala's duty to disclose Bigler's opinions, sources, and qualifications to Pentair. See Ariz. R. Civ. P. 26.1(a)(6). Alcala has failed to cite any authority that imposed a duty upon Pentair to disclose Bigler's 1999 study to Alcala, and we are aware of none. Cf. Fed. R. Civ. P. 26(a)(2)(B)(iv) (party disclosing expert must provide report including publications authored by expert).
¶20 Moreover, "[a] witness may be cross-examined on any relevant matter." Ariz. R. Evid. 611(b). "Arizona has a long-favored practice of allowing full cross-examination of expert witnesses, including inquiry about the expert's sources . . . and prior opinions." Ariz. Indep. Redistricting Comm'n v. Fields, 206 Ariz. 130, ¶ 43, 75 P.3d 1088, 1101 (App. 2003); see also State v. Swafford, 21 Ariz. App. 474, 486, 520 P.2d 1151, 1163 (1974) ("The expert invites investigation into the extent of his knowledge, the reasons for his opinion including facts and other matters upon which it is based and which he took into consideration and may be subjected to the most rigid cross-examination concerning his qualifications and his opinion and its sources."). During his direct examination, Bigler described Alcala's cognitive deficits and related them to his "very severe brain injury" from the accident. In response, Pentair properly used Bigler's 1999 study during cross-examination to compare and contrast Bigler's opinion in this case with his prior research and opinions.
¶21 Alcala additionally asserts that the evidence of his pre-and post-accident marijuana use should not have been admitted because it was "completely lacking foundation." He maintains that "[n]o expert from either side testified that marijuana use prior or subsequent to the incident caused any permanent brain damage or in any way related to Alcala's structural brain damage . . . or post-accident recovery." He thus seems to suggest that, in order to introduce this evidence, Pentair needed direct evidence that his marijuana use affected his recovery or performance on the neuropsychological tests. We disagree.
¶22 Parties may use circumstantial evidence where there is a lack of direct evidence. Farm-Aero Serv. Inc. v. Henning Produce Inc., 23 Ariz. App. 239, 240, 532 P.2d 181, 182 (1975). "Circumstantial evidence has the same probative value as direct evidence." Castro v. Ballesteros-Suarez, 222 Ariz. 48, ¶ 21, 213 P.3d 197, 203 (App. 2009). And, circumstantial evidence can "provide[] the basis for a reasonable inference as to the ultimate fact." Farm-Aero Serv. Inc., 23 Ariz. App. at 240, 532 P.2d at 182.
¶23 Here, the jury heard evidence that Alcala had previously admitted to pre- and post-accident marijuana use, and Bigler described the pre-accident use as chronic. Bigler and Biggan also testified that chronic marijuana use can affect cognitive health, neuropsychological testing, and processing speed. This testimony provided the necessary foundation for admission of the evidence of Alcala's marijuana use. The jury could then reasonably infer that Alcala's cognitive deficits were affected by his use of marijuana. Cf. Dulles v. Safeway Stores, Inc., 168 Ariz. 4, 7, 810 P.2d 627, 630 (App. 1991) (holding jury could infer from facts that produce sprayed daily by store employees and plaintiff slipped on water near hose used for spraying that employees were responsible for water on floor).
¶24 Alcala lastly contends that Pentair's opening statement and closing argument improperly referred to the marijuana evidence. First, Alcala made no objections below to the statements he now complains of, and, for that reason alone, we could consider this argument waived on appeal. See Monaco v. HealthPartners of S. Ariz., 196 Ariz. 299, ¶ 16, 995 P.2d 735, 741 (App. 1999); Fleitz v. Van Westrienen, 114 Ariz. 246, 250-51, 560 P.2d 430, 434-35 (App. 1977). Second, even assuming the argument was not waived, we find no error.
¶25 Attorneys are given wide latitude in opening statements to generally outline what they intend to prove during trial. 75 Am. Jur. 2d Trial § 432 (2014); see Williams v. Wise, 106 Ariz. 335, 336-37, 476 P.2d 145, 146-47 (1970) (trial court's restrictions on defense opening statement constituted error). In its opening statement, Pentair mentioned Alcala's post-accident marijuana use, explaining that "the constellation of complaints that [Alcala] has now may be produced to some extent, perhaps entirely, by his behavior." Pentair was thus outlining what it intended to prove at trial. And, Pentair's opening statement was entirely consistent with the trial court's ruling allowing evidence of post-accident but not pre-accident or day-of marijuana use on the issue of damages.
¶26 During closing arguments, attorneys can argue their theory of the case and attack that of their opponent, commenting on the evidence presented. Pelayo v. Bell, 13 Ariz. App. 418, 419, 477 P.2d 537, 538 (1970). In its closing argument, Pentair referred to Alcala's marijuana use, both pre- and post-accident. Although the court had precluded evidence of Alcala's pre-accident marijuana use, that evidence nevertheless was introduced at trial by Alcala, and, thus, Pentair properly commented upon it in closing. Moreover, Pentair's discussion of this evidence again was limited to how it had affected Alcala's cognitive abilities and neuropsychological testing, which was consistent with the court's ruling that this evidence was only to be used for purposes of damages. The trial court did not abuse its discretion by admitting evidence of Alcala's marijuana use. See Higgins, 217 Ariz. 289, ¶ 35, 173 P.3d at 462.
Disposition
¶27 For the reasons stated above, we affirm.