Helmreich v. Ahc

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DAVID HELMREICH, et al., Plaintiffs/Appellants,

v.

ARIZONA’S HEALING CENTER LLC, et al.,
Defendants/Appellees.

No. 1 CA-CV 19-0435
FILED 4-21-2020

Appeal from the Superior Court in Maricopa County
No. CV 2014-009532
The Honorable Daniel G. Martin, Judge

AFFIRMED

COUNSEL

Ahwatukee Legal Office, P.C., Phoenix
By David L. Abney
Co-Counsel for Plaintiffs/Appellants

Calvin L. Raup, PLLC, Phoenix
By Calvin L. Raup
Co-Counsel for Plaintiffs/Appellants

Gage & Mathers LTD, Phoenix
By Martin H. Mathers
Co-Counsel for Plaintiffs/Appellants
Grasso Law Firm, P.C., Chandler
By Robert Grasso, Jr.
Co-Counsel for Defendants/Appellees Arizona’s Healing Center LLC, Josh
Lannon and Lisa Lannon

Osborn Maledon, P.A., Phoenix
By Thomas L. Hudson, Eric M. Fraser
Co-Counsel for Defendants/Appellees Arizona’s Healing Center LLC, Josh
Lannon and Lisa Lannon

Wicker Smith O’Hara McCoy & Ford, P.A., Phoenix
By Mandi J. Karvis
Counsel for Defendants/Appellees Ravi Chandiramani, N.D. and Nisha Bhatia,
M.D.

MEMORANDUM DECISION

Presiding Judge Michael J. Brown delivered the decision of the Court, in
which Judge Kenton D. Jones and Judge D. Steven Williams joined.

B R O W N, Judge:

¶1 Plaintiffs David and Mary Helmreich (collectively,
“Helmreich”) appeal the superior court’s order granting Arizona’s Healing
Center’s1 motion for new trial following a jury verdict in favor of
Helmreich. Because the court did not abuse its broad discretion, we affirm.

BACKGROUND

¶2 For much of his life, Jay Helmreich (“Jay”) struggled with a
rare physical disorder, a mental disorder, and substance abuse. To address
the substance abuse problem, he began treatment at the Center in April
2013. While there, he was examined, treated, and prescribed medications
by Dr. Ravi Chandiramani. He was released from treatment in July, after

1 Helmreich’s first amended complaint included several defendants:
Arizona’s Healing Center LLC, (“the Center); Ravi Chandiramani, a
naturopathic doctor and medical provider for the Center; Nisha Bhatia,
Dr. Chandiramani’s spouse; and Josh and Lisa Lannon, the Center’s
owners. Because resolution of this appeal does not require differentiating
among defendants, we refer to them collectively as “AHC.”

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which he intermittently engaged in outpatient therapy through the Center.
But by September, Jay was beginning to relapse and unsuccessfully sought
readmission. On December 15, Jay died from respiratory arrest caused by
“an acute heroin overdose.” Testing revealed that cocaine was found in his
blood and urine.

¶3 In 2014, Helmreich filed a complaint against AHC for medical
negligence and wrongful death, later adding claims of fraud and breach of
contract. The case proceeded to trial in 2018 on claims of medical
negligence, consumer fraud, and negligent hiring, training, or supervision.
AHC’s proposed jury instructions included the following, based upon
A.R.S. § 12-711:2

Affirmative Defense when Decedent is Under the Influence

If the Defendants prove that Jay Helmreich was under the
influence of a drug and, as a result of that influence, Jay
Helmreich was at least fifty percent (50%) responsible for the
incident or event that caused his death, you may find
Defendants not liable to Plaintiffs.

¶4 During opening statements, Helmreich’s counsel explained to
the jury the defenses it would be hearing, including the following:

[T]here’s really going to be one defense, I think, and that is
there’s a statute in Arizona that says if you find that Jay’s
death was at least 50 percent his fault, you may, but are not
required to, return a verdict for the defense. You can ignore
what they did, if you think this death was at least 50 percent
Jay’s fault. And so the defense, I believe, is going to . . . blame
the victim.

After the close of evidence, the superior court heard arguments from the
parties’ counsel as to whether the § 12-711 instruction should be given. The
court expressed its concern that because Jay’s death was essentially
simultaneous with the heroin injection, the statute may not apply because
it “speaks to previous intoxication.” AHC argued there was nothing in the
statute addressing the timing of the drug use, and under the statute’s plain
language, injection of the heroin alone was sufficient to allow the
instruction. AHC also contended that its expert witness testified that in the
hours preceding the heroin injection, Jay had also consumed cocaine, which

2 AHC’s proposed instruction essentially tracked the jury instruction
at issue in Franklin v. Clemett, 240 Ariz. 587, 591, ¶ 4 (App. 2016).

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would have “place[d] him under the influence of a drug.” Helmreich
countered that the statute was designed to apply only if the “conduct of a
person is affected by intoxication” and that there must be a “causative
mechanism between the intoxication and the event in question.” After
further discussion with counsel, the court indicated it was a “very close
call” but ultimately declined to give the instruction, concluding “that the
intoxication is a causative factor and that is not what we have on the facts
of this case . . . [T]here was an injection, [and] almost simultaneous death.”

¶5 After a 12-day trial, the jury found in favor of Helmreich for
medical negligence, consumer fraud, and negligent hiring, training, or
supervision. The jury awarded Helmreich (collectively) four million dollars
and found Jay fifty-five percent at fault, apportioning the other forty-five
percent of fault among the defendants. AHC filed a motion for new trial,
supported by several trial transcript excerpts, asserting, inter alia, the court
erred in denying the proposed § 12-711 jury instruction. AHC argued the
superior court’s reasoning for denying the instruction conflicted with the
facts and the law. AHC asserted the instruction was required for several
reasons, one of which was that the evidence presented at trial showed Jay’s
“death occurred after using heroin [and] that he likely would have used the
cocaine at some point prior to using heroin.” The court granted the motion,
noting it “was persuaded[] by the reasoning” set forth by AHC and that
“the [c]ourt erred by refusing to instruct the jury on A.R.S. § 12-711.”
Helmreich timely appealed.

DISCUSSION

¶6 We review the superior court’s order granting a new trial for
an abuse of discretion, Cal X-Tra v. W.V.S.V. Holdings, L.L.C., 229 Ariz. 377,
403, ¶ 88 (App. 2012), and afford the court “wide discretion” in granting a
new trial, City of Glendale v. Bradshaw, 114 Ariz. 236, 237–38 (1977). We will
affirm an order for a new trial “unless the probative force of the evidence
clearly demonstrates that the [order] is wrong and unjust.” Smith v.
Moroney, 79 Ariz. 35, 39 (1955). Further, our standard of review is “more
liberal . . . when reviewing an order granting a new trial than an order
denying one.” McBride v. Kieckhefer Assocs., 228 Ariz. 262, 266, ¶ 16 (App.
2011).

¶7 Helmreich argues the order granting a new trial was legally
incorrect and an abuse of discretion because § 12-711 does not change the
application of typical comparative fault principles, and thus the jury
instructions were sufficient. The statute provides as follows:

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In any civil action, the finder of fact may find the defendant
not liable if the defendant proves that . . . the decedent was
under the influence of an intoxicating liquor or a drug and as
a result of that influence the . . . decedent was at least fifty per
cent responsible for the accident or event that caused the . . .
decedent’s harm.

A.R.S. § 12-711. Arizona law has adopted the comparative fault approach
to torts, meaning damages are allocated proportionally, and plaintiffs can
only recover damages to the degree they are not at fault. See A.R.S. § 12-
2505. But § 12-711 modifies the traditional comparative fault approach by
providing that if the plaintiff or decedent was at least fifty percent
responsible, the finder of fact may find the defendant not liable. See Franklin,
240 Ariz. at 593, ¶ 11 (explaining that § 12-711 is permissive in that a fact
finder may find a defendant not liable if the plaintiff was “under the
influence” and was at least 50% responsible for the event that caused his
harm). Here, AHC requested an instruction based on its affirmative
defense alleged under § 12-711; that defense is not encompassed within the
comparative fault instructions. Helmreich’s argument that the jury
instructions that were given, which only cover traditional comparative fault
principles, “adequately covered the substance” of § 12-711 is incorrect.

¶8 In its motion for new trial, AHC argued that no other
instruction given to jurors instructed them on this statutory defense. The
superior court decided a new trial was necessary after being “persuaded[]
by the reasoning set forth” in AHC’s motion, and thus we can affirm on this
point alone. See Mutschler v. City of Phoenix, 212 Ariz. 160, 162, ¶ 8 (App.
2006) (“We will affirm the trial court’s ruling if the court was correct for any
reason.”)

¶9 Helmreich next argues that no facts support using A.R.S. § 12-
711 in the jury instructions. In pressing this argument, Helmreich contends
that AHC was required to prove Jay was under the influence of an
“intoxicating drug” to permit the jury to be instructed on § 12-711.
However, AHC was “entitled to an instruction on any theory of the case if
reasonably supported by the evidence.” A Tumbling-T Ranches v. Flood
Control Dist. of Maricopa Cty., 222 Ariz. 515, 533, ¶ 50 (App. 2009). Therefore,
AHC’s entitlement to an instruction was predicated on its ability to identify
evidence in the record supporting the instruction that would permit the
jury to decide whether to find that AHC was not at fault. Stated differently,
if a genuine dispute of material fact existed as to whether AHC was entitled
to rely on the affirmative defense provided by § 12-711, it was entitled to a
jury instruction on that defense. Cf. Glazer v. State, 237 Ariz. 160, 167, ¶ 29

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(2015) (explaining that the standards for granting judgment as a matter of
law and a motion for summary judgment are the same).

¶10 We cannot determine, however, whether § 12-711 and its
modified comparative fault principles are supported by the facts of this case
because Helmreich did not provide us with transcripts of the 12-day jury
trial. See ARCAP 11(c)(1)(B) (“If the appellant will contend on appeal that
a judgment, finding or conclusion, is unsupported by the evidence or is
contrary to the evidence, the appellant must include in the record transcripts
of all proceedings containing evidence relevant to that judgment, finding or
conclusion.”) (emphasis added). Because we have only the limited transcript
excerpts provided by AHC in connection with its motion for a new trial, we
must presume that the evidence included in the missing transcripts
supports the trial court’s ruling. See Blair v. Burgener, 226 Ariz. 213, 217,
¶ 9 (App. 2010); Baker v. Baker, 183 Ariz. 70, 73 (App. 1995).

¶11 Helmreich contends there was no need to provide transcripts
because AHC provided all the relevant portions of testimony as exhibits in
its motion for a new trial. But it is Helmreich’s duty, as the appellant, to
provide the transcripts necessary to properly decide the issues raised on
appeal. See ARCAP 11(c)(1)(B); Baker, 183 Ariz. at 73 (“A party is
responsible for making certain the record on appeal contains all transcripts
or other documents necessary for us to consider the issues raised on
appeal.”). And we cannot properly review whether the court abused its
discretion if we have only piecemeal portions of the record. Helmreich cites
no authority suggesting an appellate court can evaluate whether reasonable
evidence existed to support a jury instruction without, at a minimum, the
transcripts containing the testimony presented at trial. Cf. Cardinal &
Stachel, P.C. v. Curtiss, 225 Ariz. 381, 383, ¶ 5 (App. 2010) (noting that
transcripts of proceedings are unnecessary if the issue is purely legal).
Without transcripts, we are unable to tell what testimony would support
instructing the jury on the § 12-711 affirmative defense. Thus, we must
assume the missing transcripts support the court’s decision to grant a new
trial and no abuse of discretion occurred. As such, we need not address
Helmreich’s arguments relating to statutory construction.

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CONCLUSION

¶12 We affirm the court’s order granting AHC’s motion for new
trial.

AMY M. WOOD • Clerk of the Court
FILED: AA

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