                            IN THE COURT OF APPEALS               FILED BY CLERK
                                STATE OF ARIZONA                    MAY 27 2010
                                  DIVISION TWO
                                                                     COURT OF APPEALS
                                                                       DIVISION TWO

JENNIFER BRAILLARD, personal                      )
representative of the Estate of Deborah           )
Ann Braillard, deceased; JENNIFER                 )
BRAILLARD, surviving daughter of                  )
Deborah Ann Braillard,                            )
                                                  )
                           Plaintiff/Appellant/   )     2 CA-CV 2009-0059
                              Cross-Appellee,     )     DEPARTMENT B
                                                  )
             v.                                   )     OPINION
                                                  )
MARICOPA COUNTY; MARICOPA                         )
COUNTY SHERIFF‟S OFFICE; JOSEPH M.                )
ARPAIO and AVA ARPAIO, husband and                )
wife; CINCY RODRIGUEZ; RANDAL S.                  )
HARENBERG and CARLENE HARENBERG,                  )
husband and wife; DIANE GALAVIZ;                  )
KARYN KLEINSCHMIDT, nka KARYN                     )
SCHWARTZ; STEPHANIE LEPPERT;                      )
SANDRA M. GARFIAS; and                            )
LUCY F. AKPAN,                                    )
                                                  )
                        Defendants/Appellees/     )
                            Cross-Appellants.     )
                                                  )


           APPEAL FROM THE SUPERIOR COURT OF PINAL COUNTY

                               Cause No. CV2006-01548

                          Honorable William J. O‟Neil, Judge

             AFFIRMED IN PART; REVERSED IN PART; REMANDED
Stinson Morrison Hecker LLP
 By Michael C. Manning, Leslie E. O‟Hara,
 and John T. White                                                            Phoenix
                                                               Attorneys for Plaintiff/
                                                             Appellant/Cross-Appellee
Wilenchik & Bartness, P.C.
 By Dennis I. Wilenchik and M. Rob Somers                                     Phoenix
                                                  Attorneys for Defendants/Appellees/
                                                  Cross-Appellants Arpaio, Harenberg,
                                                          Galaviz, Schwartz, Leppert,
                                                                   Garfias, and Akpan

Zwillinger Greek Zwillinger & Knecht PC
 By Scott H. Zwillinger and Sara R. Witthoft                                  Phoenix
                                                   Attorneys for Defendants/Appellees/
                                                    Cross-Appellants Maricopa County
                                                                        and Rodriguez


V Á S Q U E Z, Judge.


¶1           In this wrongful death and survival action brought under state law and 42

U.S.C. § 1983, Jennifer Braillard (Braillard) sued Maricopa County (the County),

Maricopa County Sheriff Joseph Arpaio, the Maricopa County Sheriff‟s Office (MCSO),

and seven individual MCSO and County employees, for damages arising from the death

of her mother, Deborah Braillard (Deborah).

¶2           On appeal, Braillard argues the trial court erred in granting defendants‟

motions for summary judgment on her substantive claims and on her claims for punitive

damages and damages for Deborah‟s pain and suffering pursuant to § 1983. On cross-

appeal, the defendants argue the court erred in denying their motion to dismiss MCSO as

a nonjural entity; denying their motion for summary judgment on Braillard‟s standing to

bring a wrongful death action under § 1983; denying their motion for summary judgment
                                          2
on Braillard‟s state-law negligence and gross negligence claims; and in its rulings on two

discovery-related disputes.

¶3            For the reasons stated below, we reverse the trial court‟s grants of summary

judgment in favor of all defendants on Braillard‟s § 1983 survival claims and her

associated claims for damages and on her state-law claims with respect to defendant

Cincy Rodriguez. We also reverse the court‟s denial of summary judgment with respect

to Braillard‟s standing to file a wrongful death claim pursuant to § 1983 and its denial of

the defendants‟ motion to dismiss MCSO as a nonjural entity. However, we affirm the

court‟s discovery rulings and its denial of defendants‟ motion for summary judgment on

Braillard‟s state claims.

                            Factual and Procedural Background

¶4            We view the facts in the light most favorable to Braillard, the party against

whom summary judgment was granted. See Corbett v. ManorCare of Am., Inc., 213

Ariz. 618, ¶ 2, 146 P.3d 1027, 1030-31 (App. 2006). On the night of January 1, 2005,

Deborah was arrested on suspicion of drug possession and taken to the Fourth Avenue

county jail in Phoenix. At the jail, defendant Cincy Rodriguez, a nurse with Maricopa

County Correctional Health Services (CHS), conducted Deborah‟s medical screening

interview.    The screening, which lasted fifty-nine seconds, failed to ascertain that

Deborah was an insulin-dependent diabetic. She then was transferred to K-Dorm at

Estrella Jail the next day with no indication that she was in need of regular insulin

injections.



                                            3
¶5            On January 3, other inmates observed Deborah “moaning and groaning”

and vomiting. By the evening of January 4, “[s]he was basically unconscious . . . . She

couldn‟t speak. She couldn‟t eat. . . . She defecated on herself several times.” Inmates

who asked the detention officers on duty to get help for Deborah were told: “There‟s

nothing we can do about it. You just have to deal with it. This is jail. Get over it.”

¶6            At 3:00 p.m. on January 4, defendants Karyn Schwartz and Randal

Harenberg, MCSO detention officers, started their shift in K-Dorm.           Schwartz saw

Deborah sitting at a table and believed she was sitting there because she was not feeling

well. Other inmates apparently informed Harenberg that Deborah was suffering from

drug withdrawal, and two of them helped walk her to her bunk.               Harenberg was

“concerned . . . to the point where every time [he] went on a security walk . . . [he]

stopped by her bunk and checked on her.” At 3:25 p.m., Harenberg noted in the K-Dorm

logbook that Deborah was “complaining of being sick [and] can‟t breathe” and that he

had called CHS. However, none of the CHS staff on duty acknowledged having received

such a call, and no one from CHS came to K-Dorm to check on Deborah. At 6:30 p.m.,

she was too sick to stand in line for her dinner, and Harenberg allowed another inmate to

bring her a meal.

¶7            At 8:17 p.m., Deborah‟s friend Michael Amsberry attempted to visit her at

the jail but was told she was too ill to come to the visitation area. At 9:42 p.m., another

friend, Debbie Fouts, called MCSO, concerned that Deborah had not received medication

while in jail. The MCSO officer who received the call, Brenda O‟Neil, sent a facsimile



                                             4
to inform Estrella Jail‟s medical clinic, but the facsimile apparently was neither picked up

nor read by anyone there.

¶8            The next shift started at 11:00 p.m. During this shift, only one detention

officer was on duty in K-Dorm, defendant Sandra Garfias. Another officer, defendant

Diane Galaviz, was assigned to escort duty and conducted a security walk during the

shift. Garfias heard Deborah vomiting more than twice, and at 2:45 a.m. on January 5,

moved Deborah from the dormitory to the day room because her “groaning [and] yelling”

were keeping the other inmates awake. Deborah continued groaning and calling out,

“Why me?” and “Help me” until around 5:00 a.m.              Defendants Lucy Akpan and

Stephanie Leppert took over from Garfias at 7:00 a.m. Deborah was moved back to her

bunk, where she vomited again. Akpan observed that she appeared weak and “very

sick.”

¶9            That morning, Braillard telephoned CHS risk manager Dennis Flynn and

expressed concern that Deborah might not have been receiving appropriate treatment for

her diabetes while she was in jail. Flynn contacted a nurse at the Estrella Jail medical

clinic, who had Deborah brought to the clinic. She was given insulin and oxygen and

transferred by ambulance to Maricopa County Medical Center, where she died eighteen

days later from diabetic ketoacidosis.

¶10           Braillard brought this action, in her individual capacity and on behalf of

Deborah‟s estate, against Sheriff Arpaio, MCSO, and detention officers Karyn Schwartz,

Randal Harenberg, Sandra Garfias, Diane Galaviz, Lucy Akpan, and Stephanie Leppert

(collectively, the MCSO defendants), and also against Maricopa County and CHS nurse

                                             5
Cincy Rodriguez (collectively, the County defendants).1 The trial court granted the

defendants‟ motions for summary judgment with respect to Braillard‟s § 1983 claims and

entered an order of final judgment pursuant to Rule 54(b), Ariz. R. Civ. P. Braillard

timely filed a notice of appeal, and the County defendants and MCSO defendants filed

separate and timely notices of cross-appeal.

                                       Discussion

Capacity to Sue and be Sued

¶11          Before addressing the trial court‟s grant of the defendants‟ motion for

summary judgment on Braillard‟s § 1983 claims, we consider two cross-appeal

arguments affecting Braillard‟s standing to sue and MCSO‟s capacity to be sued with

respect to those claims. These are legal issues we review de novo. See Aegis of Ariz.,

L.L.C. v. Town of Marana, 206 Ariz. 557, ¶ 16, 81 P.3d 1016, 1021 (App. 2003).

¶12          First, the MCSO defendants argue the trial court erred in denying their

motion to dismiss both the § 1983 claims and state tort claims against MCSO on the

ground that it is a nonjural entity.2 Governmental entities have no inherent power and



      1
        Braillard‟s complaint named additional defendants who subsequently were
dismissed from the action. Pursuant to stipulations between the parties, the claims
against another CHS nurse, Gloria Eppinger, were dismissed without prejudice and
against Maricopa Integrated Health System with prejudice. And CHS was dismissed as a
nonjural entity.
      2
        In discussing this issue, the parties touch on the question whether the Maricopa
County Sheriff, acting in his official capacity, is a jural entity. However, none of the
parties has argued the sheriff should be dismissed from this action. We therefore decline
to reach this question. In any event, “Maricopa County pays its own debts, and it funds
the Sheriff‟s official functions. Whether the County or the Sheriff is liable is of no
                                               6
possess only those powers and duties delegated to them by their enabling statutes.

Schwartz v. Superior Court, 186 Ariz. 617, 619, 925 P.2d 1068, 1070 (App. 1996). Thus,

a governmental entity may be sued only if the legislature has so provided. See Kimball v.

Shofstall, 17 Ariz. App. 11, 13, 494 P.2d 1357, 1359 (1972) (holding State Board of

Education may not be sued in absence of authorizing statute); see also 56 Am. Jur. 2d

Municipal Corporations, Counties, Other Political Subdivisions § 787 (2010)

(“[D]epartments and subordinate entities of . . . counties . . . that are not separate legal

entities or bodies do not have the capacity to sue or be sued in the absence of specific

statutory authority.”). Although A.R.S. § 11-201(A)(1) provides that counties have the

power to sue and be sued through their boards of supervisors, no Arizona statute confers

such power on MCSO as a separate legal entity.

¶13           Braillard nevertheless asserts that in prior cases MCSO has “admitted in

court proceedings that it is a separate entity from the County.” However, “there is no

doctrine of jural status by estoppel, at least without detrimental reliance in the case at

hand.” Payne v. Arpaio, 2009 WL 3756679, 4 (D. Ariz. 2009). Whether MCSO is a

nonjural entity is apparently an issue of first impression in our state courts; however,

federal courts in Arizona have addressed this issue on numerous occasions.            And,

although their decisions have been divided, most—including a number of unpublished

orders—have found MCSO to be a nonjural entity for the reasons stated above. See

Lovejoy v. Arpaio, 2010 WL 466010, 16 (D. Ariz. 2010); Payne, 2009 WL 3756679, at 4;


practical consequence. One or both paths must be good, and they both lead to the same
money.” Payne v. Arpaio, 2009 WL 3756679, 6 (D. Ariz. 2009).
                                             7
Flores v. Maricopa County, 2009 WL 2169159, 3 (D. Ariz. 2009); Wilson v. Maricopa

County, 463 F. Supp. 2d 987, 1001 (D. Ariz. 2006) (denying reconsideration of prior

order dismissing MCSO as nonjural entity). And those decisions declining to dismiss

MCSO have done so largely on the ground our state courts have not addressed the issue.

See Auble v. Maricopa County, 2009 WL 3335425, 3 (D. Ariz. 2009); Ortega Melendres

v. Arpaio, 598 F. Supp. 2d 1025, 1039 (D. Ariz. 2009). Notably, there is a consensus

among Arizona federal decisions that city police departments generally are nonjural

entities. See Payne, 2009 WL 3756679, at 4 (citing cases). We therefore conclude

MCSO is a nonjural entity and should be dismissed from this case.

¶14          The MCSO defendants3 next contend the trial court erred in denying their

motion for summary judgment on Braillard‟s individual standing to bring a wrongful

death action pursuant to § 1983.4 Although the denial of a motion for summary judgment

generally is not appealable, “once we have jurisdiction over an order granting summary

judgment, we may consider the merits of an order denying summary judgment and direct


      3
       Although we have concluded MCSO is a nonjural entity, the individual MCSO
defendants, Sheriff Arpaio and the detention officers, remain parties to the litigation.
      4
        The MCSO defendants do not challenge Braillard‟s standing, in her capacity as
representative of Deborah‟s estate, to bring a survival action under § 1983. See Smith v.
City of Fontana, 818 F.2d 1411, 1416 (9th Cir. 1987) (“a section 1983 claim that accrued
before death survives the decedent when state law authorizes a survival action as a
„suitable remed[y] . . . not inconsistent with the Constitution and laws of the United
States‟”), quoting 42 U.S.C. § 1988, overruled in part on other grounds by Hodgers-
Durgin v. de la Vina, 199 F.3d 1037, 1041 n.1 (9th Cir. 1999). See also A.R.S. § 14-
3110 (permitting survival actions); Barragan v. Superior Court, 12 Ariz. App. 402, 404-
05, 470 P.2d 722, 724-25 (1970) (survival action “permits recovery for the wrong to the
injured person and is confined to h[er] personal loss while [wrongful death action] is for
the wrong to the beneficiaries, confined to their loss because of the death.”).
                                            8
entry of summary judgment if there are no issues of material fact and the movant is

entitled to judgment as a matter of law.” Kaufmann v. M & S Unltd., L.L.C., 211 Ariz.

314, ¶ 5, 121 P.3d 181, 183 (App. 2005).

¶15           The MCSO defendants argue that, in the absence of direct interference by

the state in a particular relationship, there is no violation of any constitutional right to

association between a parent and an adult child and thus no basis for Braillard‟s § 1983

wrongful death claim. See Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985) (§ 1983

does not create substantive rights but merely provides remedies for deprivations of rights

established elsewhere).

¶16           Braillard relies on Smith v. City of Fontana, 818 F.2d 1411, 1418 (9th Cir.

1987), overruled in part on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d

1037 (9th Cir. 1999), which recognized that adult children have “a cognizable liberty

interest in continued association” with a parent, pursuant to the Due Process Clause of the

Fourteenth Amendment. In Smith, the Ninth Circuit Court of Appeals concluded the

children, including adult children, of a man shot dead by police could pursue wrongful

death claims under § 1983 on the ground that “the same allegation of excessive force

giving rise to [the father]‟s substantive due process claim based on his loss of life also

gives the children a substantive due process claim based on their loss of his

companionship.” Id. at 1420. In reaching that conclusion, the court relied on Bell v. City

of Milwaukee, 746 F.2d 1205 (7th Cir. 1984), which also involved a fatal shooting by

police, as well as Morrison v. Jones, 607 F.2d 1269 (9th Cir. 1979), and its progeny. See



                                             9
Kelson v. City of Springfield, 767 F.2d 651, 654 (9th Cir. 1985) (relying on Morrison),

Strandberg v. City of Helena, 791 F.2d 744, 748 (9th Cir. 1986) (relying on Kelson).

¶17           However, the Seventh Circuit overruled Bell in Russ v. Watts, 414 F.3d

783, 787 (7th Cir. 2005), noting, “Most courts that have considered the issue have

expressly declined to find a violation of the familial liberty interest where the state action

at issue was not aimed specifically at interfering with the relationship.” See Robertson v.

Hecksel, 420 F.3d 1254, 1259 (11th Cir. 2005) (finding no interest); McCurdy v. Dodd,

352 F.3d 820, 830 (3d Cir. 2003) (finding no interest); Butera v. Dist. of Columbia, 235

F.3d 637, 656 (D.C. Cir. 2001) (finding no interest); Valdivieso Ortiz v. Burgos, 807 F.2d

6, 10 (1st Cir. 1986) (finding no interest); Trujillo v. Bd. of County Comm’rs, 768 F.2d

1186, 1189-90 (10th Cir. 1985) (recognizing interest where direct effort to interfere with

relationship). It also noted that, although the United States Supreme Court had not yet

ruled on this issue, it had cautioned courts to “„exercise the utmost care‟ in extending

constitutional protection to an asserted right or liberty interest because, in doing so, we

„place the matter outside the arena of public debate and legislative action.‟” Russ, 414

F.3d at 789, quoting Washington v. Glucksberg, 521 U.S. 702, 720 (1997).

¶18           Moreover, Morrison itself involved the state‟s direct interference in a

particular relationship, namely, “county officials[‟] remov[al of] a mentally ill boy from

his mother‟s custody on the ground that she could not adequately care for him.” Smith,

818 F.2d at 1418. We therefore do not believe that, standing alone, Morrison can provide

an adequate foundation for finding a constitutional violation based on official actions that

were not directed at the parent-child relationship, particularly in light of the

                                             10
overwhelming weight of authority to the contrary. See Russ, 414 F.3d at 790. With the

overruling of Bell, the Ninth Circuit‟s holding in Smith is no longer tenable.5         We

therefore decline to follow Smith and, instead, in keeping with the majority position, find

Braillard has failed to allege a constitutionally protected right and thus lacks standing to

bring a wrongful death action under § 1983.6

§ 1983 Survival Claims

¶19           Braillard argues the trial court erred in granting summary judgment in favor

of the defendants on her § 1983 survival claims. “On appeal from the trial court‟s grant

of summary judgment, we review de novo whether there are any genuine issues of

material fact and whether the trial court erred in applying the law.” Eller Media Co. v.

City of Tucson, 198 Ariz. 127, ¶ 4, 7 P.3d 136, 139 (App. 2000). As noted above, we

“view the evidence in the light most favorable to the party against whom summary

judgment was entered.” Simon v. Safeway, Inc., 217 Ariz. 330, ¶ 13, 173 P.3d 1031,

1037 (App. 2007). Summary judgment should be granted “if the facts produced in

support of the claim or defense have so little probative value, given the quantum of


       5
        The Ninth Circuit has not revisited this issue following the Seventh Circuit‟s
overruling of Bell. And, although we “may choose to follow substantive decisions of the
Ninth Circuit Court of Appeals,” we are not persuaded that doing so here would “further
predictability and stability of the law.” See Weatherford ex rel. Michael L. v. State, 206
Ariz. 529, ¶ 9, 81 P.3d 320, 324 (2003).
       6
        Nothing in this decision should be perceived as trivializing Braillard‟s loss.
However, “even an interest of great importance may not always be entitled to
constitutional protection.” Valdivieso Ortiz, 807 F.2d at 10. And, although our decision
forecloses Braillard‟s wrongful death action under § 1983, it does not, as we discuss
below, foreclose her ability to seek recourse pursuant to Arizona‟s wrongful death
statutes. See A.R.S. § 12-612.
                                            11
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). But we will reverse an order granting summary judgment which

necessarily required the trial court to assess “the credibility of witnesses with differing

versions of material facts, . . . to weigh the quality of documentary or other evidence, . . .

[or] to choose among competing or conflicting inferences.” Id. at 311, 802 P.2d at 1010.

¶20           Section 1983 allows a plaintiff to assert a cause of action against any

person who, under color of state law or authority, deprives another person of “any rights,

privileges, or immunities secured by the Constitution and laws” of the United States. 42

U.S.C. § 1983. Pretrial detainees are entitled to at least as much protection under the

Fourteenth Amendment as convicted prisoners receive under the Eighth Amendment.

Riggens v. Nevada, 504 U.S. 127, 135 (1992); City of Revere v. Mass. Gen. Hosp., 463

U.S. 239, 244 (1983). And,

              deliberate indifference to serious medical needs of prisoners
              [is unconstitutional] . . . whether the indifference is
              manifested by prison doctors in their response to the
              prisoner‟s needs or by prison guards in intentionally denying
              or delaying access to medical care . . . . Regardless of how
              evidenced, deliberate indifference to a prisoner‟s serious
              illness or injury states a cause of action under [§] 1983.

Estelle v. Gamble, 429 U.S. 97, 104-05 (1976); see County of Sacramento v. Lewis, 523

U.S. 833, 849-50 (1998) (applying deliberate indifference standard “for due process

claims based on the medical needs of someone jailed while awaiting trial”). To prevail

on a § 1983 claim under these circumstances, a plaintiff “need not show that a prison

official acted or failed to act believing that harm actually would befall an inmate; it is

                                             12
enough that the official acted or failed to act despite his knowledge of a substantial risk of

serious harm.” Farmer v. Brennan, 511 U.S. 825, 842 (1994). To be liable, prison

officials need not have anticipated injury to a particular victim; it is sufficient if they

were aware of a risk to the safety of a particular class of inmates. Id. at 843-44. And

“[w]hether a prison official had the requisite knowledge of a substantial risk is a question

of fact” for the jury. Id. at 842.

   (i)     CHS and MCSO staff

¶21           Viewing the evidence and reasonable inferences derived therefrom in the

light most favorable to Braillard, we conclude Braillard produced sufficient facts for a

jury to find that Nurse Rodriguez and the named detention officers “failed to act despite

[their] knowledge of a substantial risk of serious harm” to Deborah. See Farmer, 511

U.S. at 842. There was evidence from their depositions that all six detention officers had

been aware that Deborah was seriously ill. Officer Harenberg noted in the log book that

Deborah was “complaining of being sick and [unable to] breathe” and testified he had

been informed by other inmates she was “coming off drugs.” Officer Schwartz, working

the same shift, testified that she had read Harenberg‟s log book entry and that he had told

her he was calling CHS about Deborah.

¶22           Either Harenberg or Schwartz apparently informed the visitation officer that

Deborah was too sick to have visitors and told Officer Galaviz, who was working the

next shift, that Deborah was suffering from drug withdrawal.            Galaviz passed that

information on to Officer Garfias, who heard Deborah vomiting several times, was

informed by other inmates she had defecated on herself, and observed she was in pain.

                                             13
Garfias subsequently arranged for Deborah to be moved from the dormitory to the day

room because she was “groaning, yelling, and keeping the whole dorm up.” By this time,

Deborah apparently was unable to respond to Garfias‟s questions, looked weak, and

needed to be supported by two other inmates.         She continued groaning and crying

throughout the night within hearing of the detention officers, calling out, “Help me” and

“Why me?” Galaviz conducted a security walk during the shift and reportedly told an

inmate, “Don‟t worry about Deborah Braillard. She‟s getting what she deserves. She‟s

coming off drugs.”

¶23           The next morning, Garfias informed Officer Leppert that Deborah was

withdrawing from drugs and explained that she had been moved into the television room

during the night because she was yelling, vomiting, and defecating on herself. Leppert

passed this information on to Officer Akpan, who observed Deborah appeared weak and

“very sick” and was “screaming . . . in pain.” And shortly after the beginning of her shift,

Leppert was informed by one of the other inmates that Deborah had vomited again.

¶24           Despite being aware of Deborah‟s severe symptoms and believing she was

suffering symptoms of drug withdrawal, which they arguably knew could be a life-

threatening condition,7 the officers did little or nothing to obtain medical assistance.

Although Harenberg, Akpan, and Leppert asserted they had called CHS, none of the

medical staff on duty at the time recalled receiving any such calls, and CHS had no

record of them. In any event, none of these officers followed up with any further calls


       7
       Both Harenberg and Akpan testified they had been trained by MCSO that
withdrawing from drugs could be life threatening.
                                            14
when CHS failed to respond. None of the officers mentioned Deborah‟s condition to the

CHS nurses who went to the unit to dispense medications during each shift. And only

Garfias and Leppert claim to have attempted to talk directly to Deborah about her

condition.

¶25          Nurse Rodriguez testified she was aware of the importance of conducting

intake interviews effectively to ascertain the medical histories and medical needs of

inmates and knew that denying insulin to a diabetic potentially could be fatal.

Nevertheless, her own affidavit suggests she completed the interview with Deborah in

fifty-nine seconds,8 which, according to evidence produced by Braillard, was

substantially less time than necessary to do so completely and thoroughly. And another

CHS nurse testified she had observed nurses recording inmates‟ purported responses at

intake interviews when inmates had provided no response or had not even been asked the

questions. Furthermore, the parties dispute whether Rodriguez had access to but failed to

further investigate information on Deborah‟s arrest record showing she was on prescribed

medication. In any event, even absent her knowledge that Deborah was personally at

risk, a jury could find Rodriguez had failed to interview Deborah adequately while

knowing her actions could pose a substantial risk of serious harm to any inmate who was

insulin-dependent or had other serious medical needs. See Farmer, 511 U.S. at 843-44.




      8
         Rodriguez stated, “Each time I asked her a question, [Deborah] answered and I
immediately recorded her answer on a computer terminal.” Computer records showed
fifty-nine seconds elapsed as she typed the responses into Deborah‟s online medical
record.
                                           15
¶26           Because there was sufficient evidence for a jury to find the detention

officers and Rodriguez liable under a deliberate indifference standard, the court erred in

granting summary judgment in favor of these defendants both on Braillard‟s § 1983

claims and her state claims against Rodriguez. See Farmer, 511 U.S. at 842; see also

Townsend v. Jefferson County, 601 F.3d 1152, 1158 (11th Cir. 2010) (“claim of

deliberate indifference requires proof of more than gross negligence”).

   (ii)   Sheriff Arpaio

¶27           A jury similarly could find Sheriff Arpaio was aware that his actions or

inaction posed a substantial risk of harm to inmates with serious medical needs in

Maricopa County jails.     “[V]icarious liability is inapplicable to . . . § 1983 suits.”

Ashcroft v. Iqbal, __ U.S. __, __, 129 S. Ct. 1937, 1948 (2009). Therefore, to defeat

summary judgment, Braillard had to show Arpaio violated the Constitution through his

own individual actions. See id. A supervisor may be liable personally where his “failure

to adequately train and supervise subordinates constituted deliberate indifference to an

inmate‟s medical needs[,] . . . a reasonable person in the supervisor‟s position would

understand that the failure to train and supervise constituted deliberate indifference[,] and

. . . the supervisor‟s conduct was causally related to the subordinate‟s constitutional

violation.” Adams v. Poag, 61 F.3d 1537, 1544 (11th Cir. 1995). And when, like Arpaio,

a supervisor is also an official policymaker, he or she also may be liable in an official

capacity if “„policy or custom . . . played a part in the violation of federal law.‟” Larez v.

City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991), quoting McRorie v. Shimoda, 795



                                             16
F.2d 780, 783 (9th Cir. 1986). The proof of a supervisory official‟s “individual and

official capacity liabilities . . . oftentimes overlaps.” Id. at 645.

¶28             To demonstrate “deliberate indifference” in the context of inadequate

training or supervision, a plaintiff must show that the supervisor “had notice that the

training procedures and supervision were inadequate and likely to result in a

constitutional violation.” Herrin v. Treon, 459 F. Supp. 2d 525, 542 (N.D. Tex. 2006).

Here, a 1996 Department of Justice (DOJ) investigation had “concluded that

unconstitutional conditions exist[ed] at the [Maricopa County] Jails with respect to . . .

deliberate indifference to inmates‟ serious medical needs.” In 1999, Arpaio and the

County signed a settlement with DOJ, agreeing that “MCSO staff w[ould] report inmates‟

apparent serious medical needs to CHS staff” and that “ongoing training [would] be

provided continuously during employment of all detention officers . . . [on] rights and

responsibilities of inmates; . . . crisis intervention; [and] recognition of the signs and

symptoms of chemical dependency.” Arpaio therefore not only had notice some six years

before Deborah‟s ordeal that MCSO‟s existing practices and training protocols were

likely to result in constitutional violations, but he had agreed expressly to address their

inadequacies.

¶29             Braillard presented some evidence that Arpaio had failed to fulfill his

obligations under the agreement and that these failures were causally related to Deborah‟s

death. Specifically, detention officers involved in this case testified that, in the absence

of a formal request from an inmate, they were not trained to “act[] as medical liaisons

between medical staff and the inmate” or to call for assistance even when the inmate had

                                               17
diarrhea, was vomiting, and apparently was too weak to request medical assistance. They

also stated they had been given no training in recognizing the symptoms of drug

withdrawal nor had they been trained to notify CHS when they believed an inmate was

withdrawing from drugs. As a result, although some of the detention officers allegedly

contacted CHS on their own initiative, a jury could find the lack of appropriate training

led to an inconsistent and inadequate response to Deborah‟s symptoms and ultimately

caused her death.

¶30          O‟Neil, the MCSO officer who was alerted by one of Deborah‟s friends

that Deborah had not received medication for two days, testified that MCSO staff were

not trained “to ensure that medical information [about an inmate] . . . was conveyed and

acted upon in a timely fashion.”       Rather, their training and MCSO‟s applicable

procedures apparently provided that their responsibility was limited to faxing such

information immediately to the medical staff where the inmate was housed and did not

extend to calling the facility or otherwise ensuring the information was being acted upon,

even when the information “warranted immediate attention.” This practice apparently

was in direct conflict with CHS policy and resulted in a delay of approximately twelve

hours before Deborah finally received medical assistance.

¶31          Moreover, Arpaio apparently instituted no disciplinary proceedings against

any of the detention officers involved nor changed any MCSO training or procedures to

prevent similar deaths from occurring in the future. And “[t]he jury properly could find

[a] policy or custom from the failure of [Arpaio] to take any remedial steps.” See Larez,



                                           18
946 F.2d at 647 (failure to discipline officers or establish new procedures following

constitutional violation evidence defendant condoned violation).

   (iii)   Maricopa County

¶32           A municipality or county is liable under § 1983 “when implementation of

its official policies or established customs inflicts the constitutional injury.” Monell v.

Dep’t of Soc. Servs. of New York, 436 U.S. 658, 708 (1978) (Powell, J., concurring).

Such an action may be maintained when “„systemic and gross deficiencies in staffing,

facilities, equipment, or procedures,‟” Holmes v. Sheahan, 930 F.2d 1196, 1200 (7th Cir.

1991), quoting Benson v. Cady, 761 F.2d 335, 341 (7th Cir. 1985), or “the need for more

or different training, [are] so obvious, and . . . so likely to result in the violation of

constitutional rights, that the policymakers of the [county] can reasonably be said to have

been deliberately indifferent to the need.” City of Canton v. Harris, 489 U.S. 378, 390

(1989). “Moreover, for liability to attach in this circumstance the identified deficiency

. . . must be closely related to the ultimate injury.” Id. at 391. But determining whether

“the injury [would] have been avoided” absent the deficiency is a “task for the

factfinder.” Id.

¶33           Here, Braillard has provided sufficient evidence for a jury to conclude that

deficiencies in staffing, procedures, and training evinced deliberate indifference to the

medical needs of pretrial detainees and that these deficiencies were causally related to

Deborah‟s death. The DOJ investigation had concluded that unconstitutional conditions

existed with respect to inmates‟ medical needs and specifically had identified as problems

“perfunctor[]y” medical intake interviews and “significant delays in medical treatment.”

                                            19
The DOJ found that “a severe lack of resources” was the primary “[s]ystemic factor[]

responsible for inadequate medical care” and recommended increases in staffing levels.

¶34          Under the 1999 settlement agreement with the DOJ, the County agreed to

hire “sufficient general medicine nursing positions . . . to provide adequate medical care

to inmates.” However, Jon Bosch, a consultant hired to carry out a review of CHS

staffing, found in 2003 that “the current correctional health care program at Maricopa

County [wa]s not in compliance with the basic health care rights provided to inmates

under the U.S. Constitution,” and his final report to the County concluded that “current

staffing [wa]s insufficient to meet the needs of the inmate population.” Specifically,

Bosch observed:

             Frequently inmates do not report their health care needs at the
             time of intake and therefore their conditions go untreated until
             they request care . . . . However, because sick call requests
             are not responded to in a timely manner . . . an inmate‟s
             health status is likely to deteriorate while in the custody of . . .
             Maricopa County.

He found the number of nursing personnel generally to be inadequate and, in particular,

recommended an increase in the number of medical assistants available to conduct the

intake health-screening process, based on his finding that the screening form could be

completed in “approximately eight minutes.”

¶35          Dr. Todd Wilcox, the CHS medical director at the time of Deborah‟s death,

testified that Bosch‟s “staffing recommendations were higher than [the County] wanted

to fund” and that, when he was appointed in December 2004, CHS “w[as]n‟t anywhere




                                             20
close to” adequate staffing and was “deliberately indifferent to the needs of its patients.”9

He testified that then, as now, “the capacity of CHS to see [inmates] d[id] not match the

demand for care,” the preintake screening was “extremely cursory . . . [, a]nd the level of

staff doing [it wa]s not what we would like it to be so that it would be effective.”

¶36           However, despite Deborah‟s death, the County declined to implement

Wilcox‟s proposals for change or to do anything “that was truly effective . . . because to

really fix that mismatch [between capacity and demand] requires a significant investment

in staff and in resources.” Wilcox thus ultimately “reached the conclusion that the

County was very much aware of the inadequate healthcare that was provided for the

inmates and it just decided not to make the changes.” Furthermore, one of the nurses at

the Estrella clinic when Deborah died testified that, as a result of inadequate staffing, the

clinic was “always overbooked on seeing inmates” and that it could be “days before

[requests for medical care] would be looked at.”

¶37           Braillard thus presented sufficient evidence for a jury to find that the

County was aware of and disregarded “systemic and gross deficiencies” in CHS staffing

and procedures and that it knew these deficiencies could result in a violation of inmates‟

constitutional rights. A jury further could find from this evidence that these deficiencies

were a cause of Deborah‟s death, either because her health screening was inadequate to


       9
        We find no merit to the County defendants‟ assertion that Wilcox‟s testimony
would be inadmissible at trial on hearsay grounds. Although not a binding admission on
behalf of the County, see City of Tucson v. Wondergem, 6 Ariz. App. 570, 572, 435 P.2d
77, 79 (1967), Wilcox‟s trial testimony would necessarily be “made by the declarant
while testifying at the trial” and thus clearly would not be hearsay. See Ariz. R. Evid.
801(c).
                                             21
identify her as an insulin-dependent diabetic or because MCSO staff did not respond

timely to her pleas for medical care. See City of Canton, 489 U.S. at 391.

¶38           Moreover, the County defendants concede Braillard provided evidence that

“hypothetically support[s] a Monell claim based on the MCSO‟s training of its detention

officers.” Because we have concluded MCSO is a nonjural entity, such a claim, based on

the training issues identified in our discussion of Arpaio‟s liability, can be made properly

against the County. And, like Arpaio, the County was a signatory to the settlement

agreement with the DOJ and therefore was aware that failure to train detention officers to

report the serious medical needs of inmates to CHS staff likely would violate those

inmates‟ constitutional rights.

   (iv)     Qualified immunity

¶39           Nor are we persuaded by the claims of qualified immunity asserted by the

detention officers, Rodriguez, and Arpaio in his personal capacity.10 The doctrine of

qualified immunity protects government officials “from liability for civil damages insofar

as their conduct does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). The defendants argue there is no clearly established right “to expect jails to

actively seek to discover the medical needs of an inmate who knows of her own medical

problems but conceals them.” But the United States Supreme Court has rejected such a

       10
         Qualified immunity “is unavailable „. . . in an action against a municipality,‟”
Pearson v. Callahan, __ U.S. __, __, 129 S. Ct. 808, 822 (2009), quoting County of
Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998), or to officials sued in their official
capacities, Brandon v. Holt, 469 U.S. 464, 472-73 (1985).

                                            22
narrow approach to defining the contours of a constitutional right, under which “an

official action [would be] protected by qualified immunity unless the very action in

question has previously been held unlawful.” Instead, the Court has held a right is clearly

established when “in the light of pre-existing law the unlawfulness . . . [is] apparent.”11

Hope v. Pelzer, 536 U.S. 730, 739 (2002).

¶40           The constitutional right of pretrial detainees to adequate medical care is

well established. See City of Canton, 489 U.S. at 381; City of Revere v. Mass. Gen.

Hosp., 463 U.S. 239, 245 (1983). And the defendants here do not question the existence

of, or claim they were unaware of, such a right. Indeed, Rodriguez and several of the

detention officer defendants testified they were aware of this right and that it was

explained to them in their training. Summary judgment in favor of the defendants

therefore was not warranted on this basis. See Harlow, 457 U.S. at 818.

Damages

¶41           Braillard argues the trial court erred in granting the MCSO defendants‟

motion for summary judgment on the issues of punitive damages and damages for

Deborah‟s pain and suffering pursuant to § 1983. We consider each issue in turn.12


       11
         Furthermore, the limits of the “right” proffered by the defendants prejudge the
extent to which Deborah concealed her diabetes, itself a question of fact for the jury to
determine. And, when considering qualified immunity issues on summary judgment, we
“view the facts and draw reasonable inferences „in the light most favorable to the party
opposing the [summary judgment] motion.‟” Scott v. Harris, 550 U.S. 372, 378 (2007),
quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
       12
         Braillard asserts correctly that the defendants have failed to address these issues
in their answering briefs, an omission which “c[ould] be considered a confession of
error.” See In re 1996 Nissan Sentra, 201 Ariz. 114, ¶ 7, 32 P.3d 39, 42 (App. 2001).
                                            23
Because federal civil rights law provides no statutory rule with respect to damages, we

look to “the most closely analogous state law . . . if it is consistent with the meaning and

purpose of constitutional and federal statutory law. If state law is inconsistent, it must be

disregarded in favor of the federal common law.” Bass v. Wallenstein, 769 F.2d 1173,

1188 (7th Cir. 1985); see Robertson v. Wegmann, 436 U.S. 584, 587-90 (1980). And the

purpose of § 1983 is “to deter unconstitutional acts committed under color of state law

and to compensate the victims of such acts.” Badia v. City of Casa Grande, 195 Ariz.

349, ¶ 20, 988 P.2d 134, 140 (App. 1999); see Bell v. City of Milwaukee, 746 F.2d 1205

(7th Cir. 1984).

¶42           “[A] jury may be permitted to assess punitive damages in an action under

§1983 when the defendant‟s conduct . . . involves reckless or callous indifference to the

federally protected rights of others.”    Smith v. Wade, 461 U.S. 30, 56 (1983); see

Flanders v. Maricopa County, 203 Ariz. 368, ¶ 58, 54 P.3d 837, 846 (2002) (upholding

punitive damages award on this basis). And, “in situations where the standard for

compensatory liability is as high as or higher than the usual threshold for punitive

damages, most courts will permit awards of punitive damages without requiring any extra

showing.” Smith, 461 U.S. at 53; see also Brown v. Commonwealth of Pa., Dep’t of

Health Emergency Med. Servs. Training Inst., 318 F.3d 473, 479 (3d Cir. 2003) (finding

“little difference” between terms “deliberate indifference” and “reckless indifference”).

We already have concluded a jury could find the defendants liable on a deliberate-


However, in our discretion, we consider the issues on the merits. See Bugh v. Bugh, 125
Ariz. 190, 191, 608 P.2d 329, 330 (App. 1980).
                                             24
indifference standard.   Thus, there is nothing in federal law to preclude awards of

punitive damages against the individual defendants in this case.13

¶43           The MCSO defendants nonetheless argued below that punitive damages

claims under § 1983 are precluded in Arizona by A.R.S. § 12-820.04, which provides that

“[n]either a public entity nor a public employee acting within the scope of his

employment is liable for punitive or exemplary damages.” In support of this argument,

the MCSO defendants suggested the Arizona statute is not inconsistent with the purpose

of § 1983 and therefore controls with respect to punitive damages claims because

“compensatory damages” are an adequate remedy for civil rights violations under § 1983

and the immunity in § 12-820.04 is “narrowly tailored to public employees acting in the

scope of employment.” We disagree.

¶44           Far from being narrowly tailored, the application of § 12-820.04 suggested

by these defendants would preclude punitive damages for most, if not all, § 1983 claims,

which require that the defendant have acted “under color of state law or authority.” 42

U.S.C. § 1983. And, under circumstances like those present here, any compensatory

damages are likely to be modest. Thus, “„[t]o disallow punitive damages in Section 1983

actions solely on the basis of [§ 12-820.04] would seriously hamper the deterren[t] effect

of Section 1983.‟” See Bass, 769 F.2d at 1190, quoting Bell, 746 F.2d at 1241. Section




       13
        The parties agree punitive damages are not available against the County or
Arpaio in his official capacity. See Mitchell v. Dupnik, 75 F.3d 517, 527 (9th Cir. 1996)
(counties and government officials sued in their official capacity immune from punitive
damages under § 1983).
                                            25
12-820.04 is therefore inconsistent with the purpose of § 1983 and must “give way to

federal common law rules that permit recovery.” Id.

¶45          Moreover, such a conclusion is congruent with this court‟s prior decisions.

See Badia, 195 Ariz. 349, ¶ 25, 988 P.2d at 141 (§ 12-820.04 “would not necessarily

preclude a punitive damage award under § 1983 against those who commit civil rights

violations”); Carrillo v. State, 169 Ariz. 126, 129, 817 P.2d 493, 496 (App. 1991) (noting

plaintiff‟s right to seek punitive damages from individual defendant under § 1983

“[b]alanced [by] . . . the right of a defendant named in his personal capacity to assert a

defense of qualified or absolute immunity, a defense not available to one named in his

official capacity”); see also Flanders, 203 Ariz. 368, ¶ 58, 54 P.3d at 846 (upholding

punitive damage award under § 1983).

¶46          On the issue of damages for Deborah‟s pain and suffering, the MCSO

defendants argued that A.R.S. § 14-3110, which bars such claims under state law, should

also preclude those damages under § 1983. There is no Arizona case deciding this issue

where the constitutional violation asserted was the cause of the victim‟s death.14

However, of the courts in other jurisdictions that have addressed the issue, the

overwhelming majority have concluded it would be inconsistent with the purposes of


      14
         In Badia, this court followed the United States Supreme Court‟s precedent in
Robertson v. Wegmann, 436 U.S. 584, 594 (1978), to find that precluding such damages
pursuant to § 14-3110 was not inconsistent with the purposes of § 1983 where “the
alleged constitutional violation . . . did not result in [the victim]‟s death.” Badia, 195
Ariz. 349, ¶ 23, 988 P.2d 134, 141. However, both Badia and Robertson expressly
declined to consider “whether abatement based on state law could be allowed in a
situation in which deprivation of federal rights caused death.” Robertson, 436 U.S. at
594.
                                           26
§ 1983 to preclude pain and suffering damages pursuant to state law. See Andrews v.

Neer, 253 F.3d 1052, 1063 (8th Cir. 2001); Berry v. City of Muskogee, 900 F.2d 1489,

1507 (10th Cir. 1990); Bass, 769 F.2d at 1190; Jaco v. Bloechle, 739 F.2d 239, 245 (6th

Cir. 1984); McFadden v. Sanchez, 710 F.2d 907, 911 (2d Cir. 1983); Garcia v.

Whitehead, 961 F. Supp. 230, 233 (C.D. Cal. 1997); but see Garcia v. Superior Court, 49

Cal. Rptr. 2d 580, 581 (Ct. App. 1996).

¶47           In Berry, the Tenth Circuit Court of Appeals addressed whether, under

circumstances such as these, damages in a survival action under § 1983 were limited to

those recoverable in a survival action under Oklahoma law, which, like §14-3110, did not

include damages for pain and suffering. 900 F.2d at 1500. It found that Oklahoma law,

“[a]s applied to th[at] case, . . . would provide extraordinarily limited recovery, possibly

only damages [for] property loss, of which there were none, and loss of decedent‟s

earnings between the time of injury and death, of which there also were none.” Id. at

1504. The court therefore concluded “the Oklahoma survival action is clearly deficient in

both its remedy and its deterrent effect” and a survival action under § 1983 “must make

available to plaintiffs sufficient damages to serve the deterrent function central to the

purpose of § 1983,” including damages for “pain and suffering before death.” Id. at

1504, 1507.

¶48           Here, applying § 14-3110 to bar damages for Deborah‟s pain and suffering

similarly would defeat the remedial and deterrent functions of § 1983.           Under the




                                            27
circumstances in this case, any economic damages would be relatively insignificant.15

And although, as discussed above, Braillard is not barred from seeking punitive damages,

such damages are “never awarded as of right, no matter how egregious the defendant‟s

conduct”; unlike compensatory damages, they are awarded only in the jury‟s discretion.

Smith, 461 U.S. at 52. Furthermore, the amount of punitive damages, if awarded, “„will

be governed by the financial condition of the individual officer without regard to the pain

and suffering he may have inflicted on the decedent.‟”16 See Garcia v. Whitehead, 961 F.

Supp. at 233, quoting Williams v. City of Oakland, 915 F. Supp. 1074, 1078 (N.D. Cal.

1996). Consequently, because “the survival statutes of [Arizona] are hostile to promoting

deterrence, protection and vindication against § 1983 civil rights infringements

perpetrated under color of law, [we] must implement the congressional intent by allowing

survival” of damages for pain and suffering.17 See Jaco, 739 F.2d at 245.




       15
            In any event, Braillard is not seeking economic damages.
       16
         We thus are not persuaded by the single line of California cases cited by the
MCSO defendants, which held that provisions of California law, including the
authorization of punitive damages, were sufficient “to fulfill the compensatory and
deterrent purposes of the federal Civil Rights Act” and hence that California‟s prohibition
of damages for pre-death pain and suffering was not inconsistent with § 1983. Garcia v.
Superior Court, 49 Cal. Rptr. 2d at 586. And we note that Garcia v. Superior Court is
not controlling even within California. See Garcia v. Whitehead, 961 F. Supp. at 233
(declining to follow Garcia v. Superior Court).
       17
         Although the minimal damages otherwise available would undercut the potential
effectiveness of § 1983 both as a deterrent and as a remedy, we do not presume to assess
the actual deterrent value of permitting the survival of a decedent‟s claim for pain and
suffering. A serious analysis of this issue “would be quite complex and require extensive
empirical work” that an appellate court is ill-equipped to undertake. See Venerable v.
City of Sacramento, 185 F. Supp. 2d 1128, 1133 (E.D. Cal. 2002).
                                              28
Negligence Claims

¶49           In their cross-appeal, the MCSO defendants argue the trial court erred in

denying their motion for summary judgment on Braillard‟s state claims for negligence

and gross negligence. They contend Deborah‟s failure to disclose her diabetes was “an

intervening and superseding cause, and therefore the proximate cause of her own death,

excusing any defendant from liability.”

¶50           “The proximate cause of an injury is that which, in a natural and continuous

sequence, unbroken by any efficient intervening cause, produces an injury, and without

which the injury would not have occurred.” McDowell v. Davis, 104 Ariz. 69, 71, 448

P.2d 869, 871 (1968). There may “be more than one „proximate cause‟ without which

the resulting injuries would not have occurred,” Smith v. Chapman, 115 Ariz. 211, 214,

564 P.2d 900, 903 (1977), and “[t]he defendant‟s act or omission need not be a „large‟ or

„abundant‟ cause of the injury; even if defendant‟s conduct contributes „only a little‟ to

plaintiff‟s damages, liability exists if the damages would not have occurred but for that

conduct,” Robertson v. Sixpence Inns of Am., Inc., 163 Ariz. 539, 546, 789 P.2d 1040,

1047 (1990). “Ordinarily, the question of proximate cause is a question of fact for the

jury”; thus, to defeat summary judgment, a plaintiff “need only present probable facts

from which the causal relationship reasonably may be inferred.” See id.

¶51           Whether and to what extent Deborah deliberately concealed the fact and

severity of her diabetes are themselves contested questions of fact. And, as discussed

above, Braillard presented sufficient evidence for a jury to find that the detention officer

defendants had failed to respond adequately to Deborah‟s obvious signs of serious illness

                                            29
and that this failure contributed at least “a little” to her death, regardless of whether they

knew the medical cause of those symptoms.18 See Robertson, 163 Ariz. at 546, 789 P.2d

at 1047. Thus, this question is not one of proximate cause that could exonerate the

defendants from liability as a matter of law but one of “the existence and application of

contributory negligence,” on which the jury is “the sole arbiter.” See Williams v. Thude,

188 Ariz. 257, 260, 934 P.2d 1349, 1352 (1997). The trial court therefore did not err in

denying the MCSO defendants‟ motion for summary judgment on this basis.

Discovery Issues

¶52           On cross-appeal, the County defendants argue the trial court erred in its

resolution of two discovery disputes. “[I]n matters of discovery a trial court has broad

discretion which will not be disturbed absent a showing of abuse.” Brown v. Superior

Court, 137 Ariz. 327, 331, 670 P.2d 725, 729 (1983). But “a court abuses its discretion

when it commits an error of law in reaching its decision or the record fails to provide

„substantial support‟ for the decision.” Am. Family Mut. Ins. Co. v. Grant, 222 Ariz. 507,

¶ 11, 217 P.3d 1212, 1216 (App. 2009). Rule 26(b)(1)(A), Ariz. R. Civ. P., permits the

discovery of information “relevant to the subject matter involved in the pending action”

and, if not admissible itself, “reasonably calculated to lead to the discovery of admissible

evidence.” See id. But “„[a] trial court must always consider the danger of injecting



       18
         Nor are we persuaded by the MCSO defendants‟ related argument that, because
of Deborah‟s alleged failure to disclose her diabetes, “no reasonable juror could conclude
that the standard of care was breached.” As discussed above, a juror could find the
officers‟ failure to react appropriately to her severe symptoms was unreasonable, even if
they were ignorant of the cause of those symptoms.
                                             30
collateral issues into a case.‟” Am. Family, 222 Ariz. 507, ¶ 15, 217 P.3d at 1217,

quoting Vegodsky v. City of Tucson, 1 Ariz. App. 102, 107, 399 P.2d 723, 728 (1965).

¶53           First, the County defendants contend the trial court erred in denying the

motion to compel production of Deborah‟s computer, which they believe contains

information regarding business transactions Deborah made before her death, including

allegedly illicit activity. “Evidence of the decedent‟s capacity and disposition to earn

money” is generally relevant to the issue of damages in a wrongful death action. Kemp v.

Pinal County, 8 Ariz. App. 41, 45, 442 P.2d 864, 868 (1968). And, because “surviving

parties may recover for the loss of decedent‟s companionship, comfort, and guidance,

decedent‟s character in this regard in relationship to the surviving parties” is also

relevant. Id. (citation omitted).

¶54           The trial court found the information allegedly contained on Deborah‟s

computer to be irrelevant because “no economic relief is being sought, other tha[n] relief

for loss of consortium.” The County defendants nonetheless reassert the claim they made

below that not only is the information relevant to Deborah‟s earning capacity but that

“evidence showing that [Deborah] was involved in illicit activities on the internet,

including credit card fraud and selling stolen property, is pertinent to the jury‟s

determination of damages for . . . Braillard‟s asserted loss of companionship, guidance,

and comfort as a result of [Deborah]‟s death.” However, any connection between any

such activities and the quality of the two women‟s relationship is facially tenuous and, in

the absence of any evidence, completely speculative. See Brown, 137 Ariz. at 331, 670

P.2d at 729. Moreover, the County defendants have failed to provide a transcript of the

                                            31
hearing on this issue below. In the absence of such a transcript, we presume that

whatever transpired at the hearing supported the trial court‟s ruling.19 Johnson v. Elson,

192 Ariz. 486, ¶ 11, 967 P.2d 1022, 1025 (App. 1998). We therefore cannot conclude the

court abused its discretion in declining to compel production of Deborah‟s computer.

¶55          The County defendants next argue the trial court erred in granting

Braillard‟s motion for a protective order quashing defendants‟ subpoena duces tecum for

the disclosure of employment records of one of her witnesses, Jacqueline Moore, who

was listed as an expert on the standard of care for correctional health facilities. A trial

court may “make any order which justice requires to protect a party or person from

annoyance, embarrassment, oppression, or undue burden or expense.” Ariz. R. Civ. P.

26(c)(1).

¶56          The County defendants issued the subpoena after discovering that Moore‟s

curriculum vitae omitted her recent prior employment with a healthcare management

company.     The subpoena initially requested Moore‟s entire employment file but,

following Braillard‟s motion for a protective order, was modified to include “only those

documents that address, arise [sic], or otherwise concern Dr. Moore‟s job performance

and termination, including but not limited to, any and all performance evaluations,

memoranda, discipline notices, e-mails, correspondence, and termination notices.”

       19
         Nor are we persuaded that Braillard waived her objection to the County‟s request
for production of the computer by failing to respond adequately within the forty-day
period for such objections provided by Rule 34(b), Ariz. R. Civ. P. Although the County
contends Braillard‟s response by electronic mail within the requisite time did not
constitute a sufficient “formal written response,” it cites no authority to support this
contention. And, in any event, the rule permits the trial court to allow a longer time for
such responses. Ariz. R. Civ. P. 34(b).
                                            32
¶57           The County defendants contend that “Dr. Moore‟s job performance and the

reasons for her termination relate directly to her expertise and to her qualification to give

opinions pertaining to the applicable standard of care for correctional health providers.”

We disagree. In Banta v. Superior Court, 112 Ariz. 544, 545, 544 P.2d 653, 654 (1976),

our supreme court considered a motion to compel the discovery of information from

expert medical witnesses regarding their patients. The court concluded the motion went

“beyond the scope of proper discovery” because it was “not relevant to the standard of

care” to which the experts would be testifying.         Id.   In the present case, Moore‟s

employment records similarly are irrelevant to her anticipated testimony on the standard

of care in correctional health facilities, and the trial court did not abuse its discretion in

issuing the order of protection. See Brown, 137 Ariz. at 331, 670 P.2d at 729.

¶58           Even where this court has found evidence to be relevant for impeachment

purposes, we have “recognized that overbroad discovery requests have a chilling effect

on would-be experts” and have been reluctant to approve requests that unreasonably

invade an expert‟s privacy when less intrusive means of obtaining evidence are available.

Am. Family, 222 Ariz. 507, ¶¶ 20-21, 217 P.3d at 1218. Here, Moore was deposed

subsequently and testified openly about the circumstances of her departure from the

company. As a result, this is “not . . . a recalcitrant expert or party who is refusing to

provide . . . information” in which case “a broad subpoena” might be warranted. See id.

¶¶ 27-28. Furthermore, as with the previous issue, because the County defendants have

failed to provide a transcript of the hearing on the issue below, we presume that the

record supports the trial court‟s ruling and that its reasoning was proper. See Johnson,

                                             33
192 Ariz. 486, ¶ 11, 967 P.2d at 1025; Ariz. Dep’t of Econ. Sec. v. Valentine, 190 Ariz.

107, 110, 945 P.2d 828, 831 (App. 1997).

                                       Disposition

¶59          For the reasons stated above, we reverse the trial court‟s entry of summary

judgment in favor of all defendants on Braillard‟s § 1983 survival claims and her

associated claims for damages and in favor of Rodriguez on Braillard‟s state claims. We

also reverse the court‟s entry of summary judgment in favor of Braillard with respect to

her standing to bring a wrongful death action pursuant to § 1983 and its denial of the

defendants‟ motion to dismiss MCSO. And, we direct the trial court to enter judgment

dismissing the claims against MCSO. However, we affirm the court‟s discovery rulings

and its denial of the defendants‟ motion for summary judgment on Braillard‟s state

claims.

¶60          Braillard requests attorney fees on appeal.20       However, she has not

“articulate[d] an appropriate statutory basis for that request.” See Fid. Nat’l Title Co.,

Inc. v. Town of Marana, 220 Ariz. 247, ¶ 17, 204 P.3d 1096, 1100 (App. 2009); see also

Bed Mart, Inc. v. Kelley, 202 Ariz. 370, ¶ 24, 45 P.3d 1219, 1224 (App. 2002) (request

for fees under Rule 21, Ariz. R. Civ. App. P., insufficient because rule “does not provide

a substantive basis for a fee award”). We therefore deny her request for attorney fees.



      20
        Because the County defendants are not the prevailing party on cross-appeal, we
do not consider the merits of their request for attorney fees. And, to the extent the
County defendants seek an award of attorney fees in the action below, any such award
would be premature. See Esmark, Inc. v. McKee, 118 Ariz. 511, 514, 578 P.2d 190, 193
(App. 1978).
                                           34
However, as the prevailing party on appeal, Braillard is entitled to recover her costs upon

compliance with Rule 21.


                                             /s/ Garye L. Vásquez
                                             GARYE L. VÁSQUEZ, Judge

CONCURRING:


/s/ Peter J. Eckerstrom
PETER J. ECKERSTROM, Presiding Judge


/s/ J. William Brammer, Jr.
J. WILLIAM BRAMMER, JR., Judge




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