NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
EVAN LANE, et al., Plaintiffs/Appellants,
v.
THE CENTER FOR ORTHOPEDIC AND RESEARCH
EXCELLENCE INC., et al., Defendants/Appellees.
No. 1 CA-CV 20-0177
FILED 2-25-2021
Appeal from the Superior Court in Maricopa County
No. CV2015-007755
The Honorable Rosa Mroz, Judge
AFFIRMED
COUNSEL
Ahwatukee Legal Office, P.C., Phoenix
By David L. Abney
Co-Counsel for Plaintiffs/Appellants
Law Offices of Luis P. Guerra, L.L.C., Phoenix
By Luis P. Guerra
Co-Counsel for Plaintiffs/Appellants
David Shapiro Law, PLLC, Scottsdale
By David C. Shapiro
Co-Counsel for Plaintiffs/Appellants
Broening Oberg Woods & Wilson, P.C., Phoenix
By Katherine M. Corcoran, Jessica J. Kokal, Alicyn M. Freeman, Kelley M.
Jancaitis
Counsel for Defendants/Appellees
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Cynthia J. Bailey joined.
W I N T H R O P, Judge:
¶1 After Franki Lane (“Lane”) died, her surviving children—
Evan, Garrick, and Cody Lane (collectively, “Appellants”)—filed a
wrongful death lawsuit, naming several defendants, including The Center
for Orthopedic and Research Excellence, Inc. (“CORE”) and surgeon Dr.
Joshua Abrams. The jury returned a verdict in favor of the defendants.
Appellants argue an improper jury instruction and cumulative expert
testimony that violated the one-expert-per-issue rule denied them a fair
trial. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Dr. Abrams, an employee of CORE, performed spinal surgery
on Lane in July 2013. Lane was discharged four days after the procedure,
and Dr. Abrams prescribed several medications for pain, including opioids.
The following day, a friend found Lane unresponsive in bed, and
emergency responders pronounced Lane dead at the scene. The medical
examiner determined Lane died from mixed-drug intoxication—including
medications not prescribed by or disclosed to the defendants—and
described her death as an “[a]ccident.”
¶3 Appellants sued CORE, Dr. Abrams, and other later-
dismissed defendants for medical negligence that caused or contributed to
Lane’s wrongful death, specifically alleging Lane was prematurely
discharged and overprescribed the medications that caused her death. The
defendants denied liability, alleging they complied with the applicable
standard of care, and that Lane intentionally or negligently caused or
contributed to her death. The case proceeded to a ten-day jury trial, at
which several experts testified. The court granted the defendants’ request
to instruct the jury on intervening cause over Appellants’ objections that the
evidence did not support the defense’s contention that Lane had committed
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LANE, et al. v. CORE, et al.
Decision of the Court
suicide. The instruction explained in part that, absent certain stated
exceptions, “suicide is an intervening cause which supersedes the
[d]efendants’ liability.” The court also instructed the jury on comparative
fault and provided two verdict forms, including one that read:
Verdict Form 1 (Use if you find for Plaintiffs)
We, the Jury, duly empaneled and sworn in the above
entitled action, upon our oaths, do find in favor of Plaintiffs,
and find the full compensatory damages to be:
Evan Lane: $__________
Garrick Lane: $__________
Cody Lane: $__________
We find the relative degrees of fault to be:
The CORE Institute and Dr. Joshua Abrams: ____%
[Franki] Lane: ____%
Total 100%
The second verdict form read:
Verdict Form 2 (Use if you find for Defendants)
We, the Jury, duly empaneled and sworn in the above
entitled action, upon our oaths, do find in favor of Defendants
The CORE Institute and Dr. Joshua Abrams.
Appellants did not object to the verdict forms at trial and did not request or
provide proposed special interrogatories for the jury to answer.
¶4 The jury returned a unanimous verdict in favor of CORE and
Dr. Abrams, using the second verdict form. Appellants moved to set aside
the resulting judgment and for a new trial, arguing the superior court had
permitted improper expert testimony and the defendants failed to prove
Lane had committed suicide to justify the jury instruction on intervening
cause. The court denied the motions.
¶5 This timely appeal followed. We have jurisdiction pursuant
to Arizona Revised Statutes (“A.R.S.”) section 12-2101(A)(1).
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Decision of the Court
ANALYSIS
I. Allocation of Fault
¶6 Appellants argue the superior court erred in giving the
intervening cause instruction to the jury. They contend the instruction
contravenes Arizona’s comparative-fault law and that insufficient evidence
supported the defendants’ contention that Lane committed suicide. We
review the court’s decision to give a jury instruction for an abuse of
discretion. Stafford v. Burns, 241 Ariz. 474, 478, ¶ 10 (App. 2017). We review
de novo whether an instruction correctly states the law and will reverse only
if “the challenged instruction was erroneous and prejudicial to the
appellant’s rights.” Romero v. Sw. Ambulance, 211 Ariz. 200, 204, ¶ 8 (App.
2005).
¶7 Before we consider Appellants’ argument that the instruction
is incompatible with Arizona law, we address the contention of CORE and
Dr. Abrams that Appellants waived this argument by not raising it before
the superior court. See Douglas v. Vancouver Plywood Co., 16 Ariz. App. 364,
367 (1972) (“[A]ppellate review of a case will ordinarily be limited to the
theories tried in the court below.” (citation omitted)). In the joint pretrial
statement, the parties listed “[w]hether Franki Lane’s actions directly and
proximately caused her own death” and “[t]he appropriate allocation of
fault, if any” as agreed-upon issues of fact and law. In his opening
statement, Appellants’ attorney told the jury they would hear from the
defense “[t]hat Ms. Lane intentionally overdosed and committed suicide.”
And Appellants did not object to the verdict form at trial that permitted the
jury to allocate fault to Lane if it found in favor of Appellants.
¶8 Appellants nevertheless characterize the alleged error as a
fundamental error. “Only fundamental error . . . may be raised for the first
time on appeal.” State v. Holder, 155 Ariz. 83, 85 (1987). Arizona courts
rarely apply fundamental error analysis in civil cases and generally will do
so only if the error deprives a party of a constitutional right and the party
alleging the error shows prejudice. See Bradshaw v. State Farm Mut. Auto.
Ins. Co., 157 Ariz. 411, 420 (1988); Mill Alley Partners v. Wallace, 236 Ariz. 420,
423, ¶ 9 (App. 2014). Appellants argue that “[a]n Arizona plaintiff has a
constitutional right to have a jury properly apply principles of comparative
fault and assumption of risk.” In support of their argument, they cite
Article 18, Section 5, of the Arizona Constitution, which provides: “The
defense of contributory negligence or of assumption of risk shall, in all cases
whatsoever, be a question of fact and shall, at all times, be left to the jury.”
According to Appellants, the defendants’ failure to timely designate Lane
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LANE, et al. v. CORE, et al.
Decision of the Court
as a nonparty-at-fault per Arizona Rule of Civil Procedure (“Rule”) 26(b)(5)
and A.R.S. § 12-2506(B) constitutes a constitutional violation. The alleged
error manifested in the challenged verdict form and the jury instruction on
suicide now challenged on appeal.
¶9 As a preliminary matter, we observe that, without submission
of and answers to special interrogatories, we have no way to determine why
the jury returned a defense verdict or—more to the point—whether they
concluded that Lane committed suicide. On this record, the jury could have
chosen to believe the defense expert testimony that CORE and Dr. Abrams
met the applicable standard of care and that plaintiffs simply failed to meet
their burden of proof concerning liability. It is not the appellate court’s role
to speculate about which theory a jury chose as the basis for a general
defense verdict. See Gibson v. Boyle, 139 Ariz. 512, 518 (App. 1983); cf. Picaso
v. Tucson Unified Sch. Dist., 217 Ariz. 178, 181, ¶ 9 (2007) (“An appellate court
must determine whether the judgment, not the reasoning, of the superior
court was correct.” (citation omitted)).
¶10 Further, the designation of a nonparty-at-fault is a disclosure
matter, which we review for an abuse of discretion. Bowen Prods., Inc. v.
French, 231 Ariz. 424, 427, ¶¶ 9-11 (App. 2013). “Negligence or fault of a
nonparty may be considered . . . if the defending party gives notice before
trial . . . that a nonparty was wholly or partially at fault.” A.R.S. § 12-
2506(B). Rule 26(b)(5) sets forth the procedure for noticing a nonparty-at-
fault and precludes the trier of fact from allocating “fault to a nonparty who
is not disclosed . . . except on stipulation of all the parties or on motion
showing good cause, reasonable diligence, and lack of unfair prejudice to
all other parties.”1
¶11 Even assuming the superior court abused its discretion in
allowing the defense to proceed without formal, prior compliance with
Rule 26(b)(5), we are not persuaded such alleged procedural error amounts
to fundamental error. A key purpose of Rule 26(b)(5) and A.R.S. § 12-
2506(B) is to allow “each party to know exactly what every other party in a
case is claiming with respect to who caused the injury.” LyphoMed, Inc. v.
1 Although not necessary to the resolution of this appeal, we observe
that in any wrongful death action based on alleged medical negligence—
particularly those actions where the actions or failure to comply with
medical advice by the patient are alleged as defenses—the patient’s conduct
is at issue and, other than the timely disclosure of such defenses in an
answer, disclosure statements, and discovery, the defense need not
formally invoke Rule 26(b)(5). See Gibson, 139 Ariz. at 515.
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Decision of the Court
Superior Court (Carter), 172 Ariz. 423, 428 (App. 1992). As evidenced by the
defendants’ answer, disclosure statement, and discovery responses, and the
joint pretrial statement and opening statement, Appellants unquestionably
had notice CORE and Dr. Abrams would argue Lane was at fault in causing
her death, either by intent or through her negligence. “At its heart, Rule
26(b)(5) is in service of a defendant’s substantive right to have the jury
assess fault to a non-party,” and we will not read the rule to undermine the
statutory and constitutional rights of CORE and Dr. Abrams to not be
assessed more than their “proportionate share of fault.” State v. Mahoney,
246 Ariz. 493, 496, ¶¶ 12-13 (App. 2019). The superior court did not abuse
its discretion in governing disclosure matters, and we discern no violation
of constitutional rights. No fundamental error occurred, meaning
Appellants have waived this argument.
¶12 Because it is improper for this court to speculate about why
the jury returned a general defense verdict, and because Appellants have
waived their argument that CORE and Dr. Abrams failed to properly give
notice of Lane as a nonparty-at-fault, we do not reach the issue of whether
the jury instruction describing suicide as an intervening superseding cause
conflicts with Arizona’s comparative-fault law.2
¶13 We further conclude that Appellants’ argument that the jury
instruction on suicide lacked evidentiary support is unpersuasive. The
superior court must instruct the jury on a legal theory supported by
substantial evidence. Sparks v. Republic Nat’l Life Ins. Co., 132 Ariz. 529, 539
(1982). On appeal, we view the evidence in the light most favorable to the
requesting party. Fleming v. State Dep’t of Pub. Safety, 237 Ariz. 414, 416,
¶ 11 (2015). CORE and Dr. Abrams presented evidence that Lane had
2 This court recently outlined concerns about the common-law suicide
rule, which “draws from society’s historical view of suicide as sinful and
immoral, and its historical classification as a felony.” Parton v. Jeans, 1 CA-
CV 18-0024, 2019 WL 6608750, at *3, ¶ 11 (App. 2019) (mem. decision)
(citation omitted). In Parton, we suggested the Arizona Supreme Court
“revisit the aging majority rule,” while recognizing our court is constrained
to follow the precedent set forth by our supreme court, and to determine
otherwise is outside “the scope of our authority.” Id. at ¶¶ 11, 13.
Notwithstanding Parton’s criticism of Maricopa County v. Cowart, 106 Ariz.
69, 71 (1970)—which established “that the suicide by the injured party is a
superseding cause which is neither foreseeable nor a normal incident of the
risk created and therefore relieves the original actor from liability for the
death resulting from the suicide”—our supreme court recently denied the
petition for review filed in Parton.
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LANE, et al. v. CORE, et al.
Decision of the Court
previously sought treatment for suicidal ideations and depression and that
she took an “accelerated rate” of her pain medications shortly before her
death, including medications not prescribed by or necessarily disclosed to
the defendants during their care. They also presented evidence that less
than a year before her death, Lane had suggested “she would commit
suicide” if a pain clinic could not provide her relief and told a care provider
that she had “been using medications from her neighbors” when her
prescribed pain medications were ineffective. On this record, the court did
not err in instructing the jury on the theory that Lane intentionally ingested
an overdose of her medications.
II. Expert Testimony
¶14 Appellants also argue the superior court erred in allowing
cumulative expert testimony on the cause of Lane’s death and in permitting
more than one expert to testify for the defense about causation in violation
of Rule 26(b)(4)(F).
¶15 At issue here is the testimony of two of the expert witnesses
CORE and Dr. Abrams called to testify: Pathologist Dr. Rodney Markin,
disclosed to testify regarding the medical examiner’s autopsy report and
the cause of Lane’s death, and pharmacologist Dr. Raffi Simonian, disclosed
to testify as to the toxicology report, the toxicity levels of various
medications Lane had taken, and as initially disclosed, the cause of Lane’s
death. Appellants objected to the proposed testimony, arguing the two
experts would both be testifying as to the cause of Lane’s death. The
defendants then responded Dr. Simonian would only testify about
toxicology, while Dr. Markin would be the expert testifying about the cause
of death.
¶16 In an under advisement ruling, the court noted, “While there
are some overlapping opinions, there are opinions which do not [overlap].
Most of Dr. Simonian’s proposed testimony is about the absorption rate,
normal and lethal blood concentrations, and the half-life of the various
medications taken by Ms. Lane. These are not opinions covered by Dr.
Markin, and Dr. Simonian is allowed to testify as to those issues.” The court
then identified five areas of overlapping opinions and ordered that only one
expert would be allowed to testify as to each of the five areas of overlap. As
is relevant here, the court allowed Dr. Markin to testify whether “Lane’s
cause of death is from an intentional overdose of her medication.”
¶17 In their brief, Appellants identify a handful of statements
culled from Dr. Simonian’s testimony as cumulative to Dr. Markin’s
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Decision of the Court
testimony about whether Lane intentionally ingested an overdose of her
medication. At trial, Appellants’ attorney objected to these statements, but
the court found only one cumulative to Dr. Markin’s testimony. During
direct examination, while answering a question about postmortem
redistribution levels of certain medications in Lane’s blood, Dr. Simonian
stated that information from the toxicology report “lends to a conclusion of
an intentional injection of medication.” The court found the statement
cumulative but determined it was not “overly-prejudicial,” primarily
because the statement “was nonresponsive” to the question. The court and
Appellants’ counsel agreed that if the court struck the testimony, “that just
draws more attention to that sentence.” The court then admonished Dr.
Simonian not to give his opinions about the cause of Lane’s death. In
closing arguments, the defense, as further instructed by the court, did not
reference Dr. Simonian’s testimony concerning Lane’s motivation in
ingesting the medication.
¶18 We review the superior court’s rulings on the admission of
evidence for an abuse of discretion. Felder v. Physiotherapy Assocs., 215 Ariz.
154, 166, ¶ 55 (App. 2007). “The court may exclude relevant evidence if its
probative value is substantially outweighed by a danger of . . . needlessly
presenting cumulative evidence.” Ariz. R. Evid. 403 (emphasis added).
Cumulative evidence “augments or tends to establish a point already
proved by other evidence.” State v. Kennedy, 122 Ariz. 22, 26 (App. 1979)
(citation omitted). But erroneous admission of cumulative evidence
generally does not require reversal. See State v. Williams, 133 Ariz. 220, 226
(1982). The record shows the court took care not to emphasize Dr.
Simonian’s cumulative statement, reminded him not to testify on causation,
and instructed counsel for CORE and Dr. Abrams not to address the
cumulative testimony in closing arguments. We generally do not substitute
our judgment for that of the superior court. See State v. Steinle ex rel.
Maricopa Cnty., 239 Ariz. 415, 419, ¶ 14 (2016) (explaining that rulings on
Arizona Rule of Evidence 403 issues are highly contextual and necessarily
depend on assessing all evidence in a case).
¶19 One of the purposes of Rule 26(b)(4) is to avoid the
presentation of cumulative evidence. See Felipe v. Theme Tech Corp., 235
Ariz. 520, 526, ¶ 21 (App. 2014). The rule also emphasizes the court’s
discretion in evidentiary matters. Here, the cause of Lane’s death is a
complex issue spanning multiple professional disciplines. In such
instances, “the court should be liberal in allowing expansion of the
limitation upon experts.” Ariz. R. Civ. P. 26 (Committee Comment to 1991
amendment to Rule 26(b)(4)). “[D]efining the scope of an issue is left to the
trial court’s reasonable discretion.” Felder, 215 Ariz. at 167, ¶ 69. The
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Decision of the Court
superior court carefully and appropriately exercised its discretion in
identifying areas of overlap in the issue of causation, limiting testimony on
those areas to one witness, and ruling that Dr. Simonian’s cumulative
statement was not prejudicial.
III. Costs on Appeal
¶20 Both parties request costs on appeal. Because they are the
successful party, CORE and Dr. Abrams are entitled to their taxable costs
upon compliance with Arizona Rule of Civil Appellate Procedure 21.
CONCLUSION
¶21 For the foregoing reasons, we affirm the superior court’s
judgment and award CORE and Dr. Abrams their taxable costs on appeal.
AMY M. WOOD • Clerk of the Court
FILED: AA
9