Opinion
2 CA-CV 2023-0192
06-28-2024
Jorja L. Garrett, Plaintiff/Appellant, v. Mary A. Phillips, Defendant/Appellee.
SL Chapman LLC, Scottsdale By John N. Wilborn, Bradley M. Lakin, and Karen Wilson Counsel for Plaintiff/Appellant Udall Law Firm LLP, Phoenix By Elizabeth L. Fleming Counsel for Defendant/Appellee
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. C20200348 The Honorable Greg Sakall, Judge
SL Chapman LLC, Scottsdale
By John N. Wilborn, Bradley M. Lakin, and Karen Wilson
Counsel for Plaintiff/Appellant
Udall Law Firm LLP, Phoenix
By Elizabeth L. Fleming
Counsel for Defendant/Appellee
Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Brearcliffe and Judge Kelly concurred.
MEMORANDUM DECISION
ECKERSTROM, Judge:
¶1 Jorja Garrett appeals from the trial court's denial of her motion for new trial. In particular, she challenges several evidentiary rulings made by the court. She also contends the court erred by declining to strike a juror for cause. For the following reasons, we affirm.
Factual and Procedural Background
¶2 In February 2018, the parties were involved in an automobile crash in which Mary Phillips rear-ended Garrett. In the resulting civil negligence action, Garrett alleged she had been injured in the collision, requiring numerous medical treatments for injuries to her head, neck, and shoulder. She sought to recover the costs of her medical treatments as well as damages related to alleged loss of wages and pain and suffering. Before trial, Phillips admitted negligence but disputed that she had caused Garrett's injuries and challenged "the nature and extent of treatment for said injuries."
¶3 After a five-day trial, the jury found in Garrett's favor and awarded her $15,000 in damages. The trial court entered final judgment. Garrett then moved for a new trial, raising the same arguments she asserts on appeal. After the trial court denied Garrett's motion for new trial, Garrett filed this appeal. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(5)(a).
Garrett contends we have jurisdiction over the final judgment entered in this matter. However, her notice of appeal identifies only the trial court's denial of her motion for new trial. Because Garrett "did not appeal separately the underlying judgment, we must limit our review to issues raised in the Rule 59, Ariz. R. Civ. P., motion." Sandretto v. Payson Healthcare Mgmt., Inc., 234 Ariz. 351, ¶ 7 (App. 2014). Thus, we address only the merits of arguments identified in Garrett's motion for new trial and reasserted in her opening brief.
Discussion
¶4 Garrett argues the trial court's evidentiary rulings and refusal to strike one juror for cause had a "cumulative [pre]judicial effect" that led to the jury's "low award of $15,000 in damages," compared to her claimed "$448,650 in future damages." We review a denial of a motion for new trial for abuse of discretion. Paz v. City of Tucson,__ Ariz.__, ¶ 16, 539 P.3d 906, 911 (App. 2023); see also Soto v. Sacco, 242 Ariz. 474, ¶ 8 (2017) (appellate court grants "significant latitude to trial courts in ruling on new trial motions").
I. Evidentiary Rulings A. Defense Expert Toxicologist Testimony
¶5 Garrett contends the trial court erred when it denied her motion to preclude Phillips's toxicology expert, Dr. LoVecchio, on grounds of untimely disclosure and failure to follow Rule 37(c), Ariz. R. Civ. P. Specifically, she argues the court lacked discretion to determine under Rule 37(c)(1) whether she was prejudiced by Phillips's late disclosure because Phillips never sought "leave of court by motion" to call Dr. LoVecchio, as required by Rule 37(c)(4) when a party discloses evidence after the deadline set in a scheduling order.
¶6 However, Garrett failed to raise this argument until her motion for new trial. "An issue raised for the first time after trial is deemed to have been waived" for the purposes of appellate review. Flanders v. Maricopa County, 203 Ariz. 368, ¶ 65 (App. 2002) (quoting Medlin v. Medlin, 194 Ariz. 306, ¶ 6 (App. 1999)); see also Van Dever v. Sears, Roebuck &Co., 129 Ariz. 150, 152 (App. 1981) (even if party raised issue for first time in motion for new trial, that issue waived because "post-trial objection is too late to preserve on appeal an issue which the trial court has not had an effective opportunity to rule upon at trial"). One central purpose of appellate waiver is to ensure a trial court has the opportunity to consider issues on the merits and to "correct any asserted defects before error may be raised on appeal." Trantor v. Fredrikson, 179 Ariz. 299, 300 (1994).
¶7 Although in our discretion we may reach a waived issue in order to effectuate justice, see Reid v. Reid, 222 Ariz. 204, ¶ 16 (App. 2009), we decline to do so here. Before trial, Garrett specifically asked the trial court to determine whether she was prejudiced by Phillips's late disclosure of Dr. LoVecchio. Then, for the first time after trial concluded, Garrett argued the court had lacked authority to consider that very request. Therefore, any technical error by the court in not considering whether Phillips had complied fully with Rule 37 was invited by the content of Garrett's own pretrial motion. And, given the court's finding that Garrett was not prejudiced by any technical procedural lapse by Phillips, we need not overlook Garrett's waiver of this claim to effectuate justice. Under these circumstances, it would also frustrate the purpose of our waiver principles-to provide the trial court a timely opportunity to correct any error-to nonetheless reach the merits of Garrett's belated argument. See Trantor, 179 Ariz. at 300; see also Barkhurst v. Kingsmen of Route 66, Inc., 234 Ariz. 470, ¶ 22 & n.8 (App. 2014) (failure to argue specific theory of liability before summary judgment constituted waiver of issue for appellate review); Airfreight Express Ltd. v. Evergreen Air Ctr., Inc., 215 Ariz. 103, ¶ 17 (App. 2007) (untimely presentation of specific legal theory denies trial court opportunity to address merits of argument). We therefore deem this issue waived and do not consider it further.
B. Drug Screening Results
¶8 Garrett argues the trial court erred when it denied her motion to preclude the results of certain drug screening tests. Those tests suggested that traces of unprescribed codeine, hydrocodone, fentanyl, or norfentanyl may have been in her system while she underwent pain treatment in 2020. In moving to preclude the evidence, Garrett argued that it lacked foundation, was based on pure speculation, and would unfairly prejudice her. See Rule 403, Ariz. R. Evid. In denying the motion, the court held that the evidence had adequate foundation and that any prejudice did not substantially outweigh the relevance of the drug screens. It reasoned that the evidence could help the jury determine "whether there is an intervening cause of [Garrett's] ongoing pain treatment."
¶9 In her motion for new trial, Garrett again argued that the drug screening results and testimony surrounding them were irrelevant, unfairly prejudicial, and invited the jury to speculate. She renews these arguments on appeal.
In her motion for new trial, Garrett did not meaningfully reassert her pretrial argument that the drug screening results lacked adequate foundation. Because we have jurisdiction only over the motion for new trial, we deem this issue waived and do not address it on appeal. See Sandretto, 234 Ariz. 351, ¶ 7.
¶10 Garrett maintains that her "alleged drug use could not have been an intervening superseding cause" of her injuries. But that evidence was not offered on the question of liability. Rather, it addressed whether Garrett's ongoing medical problems and resultant expenses were caused, either directly or proximately, by the accident. Evidence is relevant if "it has any tendency to make a fact more or less probable than it would be without the evidence" as to any fact "of consequence in determining the action." Ariz. R. Evid. 401.
We agree with Phillips that Garrett did not make this precise argument in her motion for new trial. However, we address it because it relates to her preserved claim that the drug screening evidence was irrelevant.
¶11 Here, evidence regarding the drug screening results assisted the jury in determining whether it was more or less probable that Garrett's use of other narcotic medication was an intervening cause of her ongoing pain management treatment and claim for future treatment, as opposed to Phillips's admittedly negligent act having caused the entirety of Garrett's ongoing and future need for such treatment. See, e.g., Barrett v. Harris, 207 Ariz. 374, ¶ 11 (App. 2004) ("An 'efficient intervening cause' is an independent cause that occurs between the original act or omission and the final harm and is necessary in bringing about that harm." (quoting Robertson v. Sixpence Inns of Am., Inc., 163 Ariz. 539, 546 (1990))); see also City of Phoenix v. Schroeder, 1 Ariz.App. 510, 516 (1965) (defining intervening and superseding causes). The evidence therefore provided support for the jury's conclusion that Phillips's conduct was not wholly responsible for Garrett's medical expenses, as reflected by its award of damages less than what Garrett sought. See Ritchie v. Krasner, 221 Ariz. 288, ¶ 23 (App. 2009). Thus, it was squarely relevant to a fact of consequence in the action. See Ariz. R. Evid. 401.
¶12 We also agree with the trial court's determination that the evidence's probative value was not substantially outweighed by any of the factors listed in Rule 403. "[W]e accord substantial discretion to the trial court in the Rule 403 weighing process." Spooner v. City of Phoenix, 246 Ariz. 119, ¶ 5 (App. 2018) (quoting Hudgins v. Sw. Airlines, Co., 221 Ariz. 472, ¶ 13 (App. 2009)). We find no such abuse of the court's discretion here. We agree with Garrett that evidence of drug or alcohol abuse is prejudicial and inadmissible when it does not relate to relevant conduct of the party. But, as discussed above, Garrett's conduct with relation to narcotic pain medications was directly relevant to the question of whether a superseding cause interrupted Phillips's liability for Garrett's ongoing medical treatment. Cf. Ornelas v. Fry, 151 Ariz. 324, 328 (App. 1986) (anesthesiologist's alleged alcoholism not relevant to jury's determination whether his conduct fell below standard of care during particular surgery). Thus, the court did not err in finding the probative value outweighed the Rule 403 considerations. See Ritchie, 221 Ariz. 288, ¶¶ 42-44 (affirming trial court's admission of evidence showing decedent "predisposed to abuse of pain medications" that ultimately caused death, but precluding evidence of alcohol use as too unclear, too remote, overly prejudicial, and lacking proper foundation).
¶13 Garrett also argues the "drug screens were not inconsistent with" her "admitted behavior." But her arguments on this point-which appear to address the weight, not the relevance, of the admitted evidence- were not raised in her motion for new trial. We, therefore, do not address them on appeal. See Sandretto v. Payson Healthcare Mgmt., Inc., 234 Ariz. 351, ¶ 7 (App. 2014).
C. Prior Medical Conditions
¶14 Garrett similarly contests the trial court's partial denial of her motion to preclude various preexisting medical conditions that were unrelated to her injuries from the accident. The court reasoned that such evidence relevantly addressed the questions of causation and claimed damages. It further ruled that the probative value of the preexisting conditions was "not substantially outweighed by the other 403 factors" enumerated in our state's rules of evidence.
¶15 On appeal, Garrett complains that she was cross-examined on these medical conditions in the absence of any expert testimony linking them to her "current symptoms." She argues that the trial court erred in allowing Phillips to elicit her testimony without first offering "a medical expert" to "explain each diagnosis" and to establish how the "relevant symptoms" from each related to her prior conditions, rather than to the accident. But Garrett failed to raise this argument as to the adequacy of the foundation in her motion for new trial. She likewise failed to object when the testimony was elicited at trial. Therefore, this argument is also waived. See Sandretto, 234 Ariz. 351, ¶ 7.
¶16 Garrett preserved her argument that this evidence was unduly prejudicial and should have been precluded under Rule 403. To prove the causation element of her negligence claim against Phillips, Garrett had to establish that her injuries were, in fact, caused by the accident. See Butler v. Wong, 117 Ariz. 395, 396 (App. 1977) (plaintiff must show more than that injuries might have been caused by negligence of defendant); see also A.R.S. § 12-2505 (comparative negligence); Gipson v. Kasey, 214 Ariz. 141, ¶ 9 (2007) (causal connection between defendant's conduct and resulting injury necessary element of civil negligence action). The question of whether Garrett had preexisting conditions that might have caused her symptoms, rather than those symptoms being caused solely by the accident, was therefore highly relevant. See Butler, 117 Ariz. at 396.
¶17 The trial court considered each condition Garrett sought to preclude. It granted her request with regard to those conditions that were not related to the symptoms for which she sought treatment in the years following the accident. Given the clear relevance of the evidence compared to the marginal possibility that it would be unduly prejudicial or otherwise improper, we cannot conclude that the court's balancing of Rule 403 factors was an abuse of its broad discretion. See Spooner, 246 Ariz. 119, ¶ 5.
II. Motion to Strike Juror 3 For Cause
¶18 Finally, as she did in her motion for new trial, Garrett argues the trial court erred when it denied her motion to strike Juror 3 for cause. We review the decision of whether to strike a juror for cause for abuse of discretion. See Lindley v. Nw. Hosp. &Med. Ctr., Inc., 164 Ariz. 133, 134 (App. 1990); see also Ariz. R. Civ. P. 47(d). We find no such abuse here.
¶19 During voir dire, Juror 3 noted that she was "kind of leaning towards" the answers of two other jurors who had disclosed they would have difficulty applying the appropriate standard of proof to the evidence. After Garrett questioned Juror 3 further, asking whether she would be able to follow the judge's instructions on the law as to burden of proof, she stated, "I don't know. I think it would be very hard for me, actually. Honestly, I think it would be hard for me." Juror 3 also reported having been in a car that was hit by an intoxicated driver in 2010. But she expressed no concern about being fair and impartial as a consequence of that experience. She further reported that her child had been involved in a motor vehicle accident, leading to concerns regarding whether her family would be named in a lawsuit. In discussing that incident, Juror 3 stated that although the case might make her recall how she felt at the time, she would "need to see the evidence" before forming any opinion as to this case.
¶20 The parties stipulated to dismiss the two jurors whose answers Juror 3 had referenced. Garrett then moved to strike Juror 3 for cause. Noting that Juror 3 had indicated "that she could apply" the law even though it would "be hard for her," the trial court denied the motion without prejudice. Afterward, Phillips questioned Juror 3 about her earlier response regarding the burden of proof. When asked whether she could follow the court's instruction on how to view the evidence, Juror 3 unequivocally answered, "Yes." The court later denied Garrett's renewed request to strike Juror 3. The court noted again that Juror 3 had indicated she could follow the court's instruction on the burden of proof, concluding, "I believe she can be fair and impartial."
¶21 All parties are entitled to a trial by fair and impartial jurors. Moran v. Jones, 75 Ariz. 175, 181 (1953); see also Ariz. Const. art. II, § 23. To effectuate that right, the court and the parties question potential jurors to ensure they are "qualified, fair, and impartial." Ariz. R. Civ. P. 47(c)(5)(A). Jurors may be struck for cause if such questioning reveals a potential juror may harbor prejudice for or against any party. Ariz. R. Civ. P. 47(d)(1)(D); see also A.R.S. § 21-211(4). We defer to the trial court's superior ability to assess the demeanor and credibility of potential jurors. See State v. Hoskins, 199 Ariz. 127, ¶ 37 (2000). In so deferring, we recognize the court retains broad discretion "to determine whether there are reasonable grounds to doubt that a venireperson will be able to serve as a fair and impartial juror." State v. Jimenez, 255 Ariz. 550, ¶ 5 (App. 2023). We will not set aside the ruling absent a clear abuse of that broad discretion. Id.
¶22 We agree with Phillips that her follow-up questioning adequately rehabilitated Juror 3. In essence, Juror 3 initially reported having experienced accidents from both perspectives-that of possibly seeking damages and also of possibly being subject to damages. Further, when Phillips returned to Juror 3 to question her about her arguably equivocal answer on the burden of proof, Juror 3 stated unequivocally that she could follow the law. When further pressed, she reiterated that she would be able to follow the trial court's instructions. These answers are sufficient to support the court's determination that Juror 3 could serve fairly and impartially. See, e.g., State v. Trostle, 191 Ariz. 4, 13 (1997) ("juror's assurance of impartiality need not be couched in absolute terms").
¶23 Garrett cites to the recent elimination of peremptory strikes as indicating that "rehabilitation of the potential juror is not the answer." (Emphasis removed.) But this argument presumes that the juror in question expressed a likelihood of being biased or prejudiced. A juror's initial equivocation on whether she can serve impartially does not itself require that she be struck for cause. See, e.g., Jimenez, 255 Ariz. 550, ¶¶ 5, 8 (trial court "need not accept the subjective beliefs of challenged venirepersons regarding their ability to remain unbiased," but rather may make determination as to impartiality based on assessment of juror's answers and demeanor); see also Trostle, 191 Ariz. at 13. We therefore find no abuse of discretion in the trial court's decision to retain Juror 3 on the jury panel based on the record before us. See Lindley, 164 Ariz. at 134.
See Ariz. Sup. Ct. Order R-21-0020 (Aug. 30, 2021).
Disposition
¶24 For the foregoing reasons, we affirm the jury's verdict. Phillips requests her costs on appeal. As the prevailing party on appeal, we grant her request for costs upon her compliance with Rule 21(b), Ariz. R. Civ. App. P. See A.R.S. § 12-341.