Lebeau v. Gugel

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ERIC LEBEAU, et al., Plaintiffs/Appellants,

v.

MICHAEL D. GUGEL, Defendant/Appellee.

No. 1 CA-CV 24-0225
FILED 03-27-2025

Appeal from the Superior Court in Maricopa County
No. CV2020-013868
The Honorable Joan M. Sinclair, Judge

AFFIRMED

COUNSEL

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

Phillips Law Group, P.C., Phoenix
By Nasser U. Abujbarah, Timothy A. LeDuc
Co-Counsel for Plaintiffs/Appellants

Hill, Hall & DeCiancio, PLC, Phoenix
By Thomas C. Hall, Ellen E. Stark, Christopher Robbins
Counsel for Defendant/Appellee
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Decision of the Court

MEMORANDUM DECISION

Presiding Judge Cynthia J. Bailey delivered the decision of the Court, in
which Vice Chief Judge Randall M. Howe and Judge Andrew M. Jacobs
joined.

B A I L E Y, Judge:

¶1 Plaintiffs Eric and Stacey LeBeau (collectively, “the LeBeaus”)
appeal a judgment affirming a jury’s verdict in favor of Defendant, Michael
Gugel, arguing the verdict was contrary to the law and evidence and the
superior court erred in denying their pretrial motion in limine. For the
following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In October 2019, Gugel rear-ended a car driven by Eric
LeBeau. Eric’s wife, Stacey, and daughter were also in the car; all three were
wearing seatbelts. The LeBeaus were able to get out of their car unassisted,
and when Gugel asked Eric if he was okay, he replied that he was. The
LeBeaus called 911, and police arrived on the scene about twenty minutes
later. Afterward, the LeBeaus and Gugel were each able to drive home.

¶3 That evening, the LeBeaus were “sore” and experienced
“stiffness,” and by the next day, they began feeling pain. As a result, they
began seeing a chiropractor and a pain management doctor. The LeBeaus
were referred for treatment for headaches and lower back pain, and
underwent pain injections, MRI scans, and physical therapy.

¶4 One year after the accident, the LeBeaus filed suit against
Gugel, alleging negligence and negligence per se.1 In his answer and
throughout the underlying action, Gugel admitted he acted negligently, but
denied the LeBeaus were injured and contested their damage claims.
Before trial, the LeBeaus moved in limine to preclude evidence that their
attorney directed their medical care or that “Plaintiffs’ physicians
performed unnecessary, unwarranted and non-indicated, medical

1 The LeBeaus’ daughter was also named as a plaintiff.But on the first day
of trial, the superior court granted the LeBeaus’ motion to dismiss their
daughter’s claims with prejudice.

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procedures” (“medical build-up”), claiming the evidence was inadmissible
under Arizona Rules of Evidence 401, 402, and 403. Gugel opposed the
motion, and two days later the superior court denied the motion. After a
six-day trial, a jury unanimously found for Gugel.

¶5 The LeBeaus timely appealed the resulting judgment, and we
have jurisdiction under Article 6, Section 9, of the Arizona Constitution and
Arizona Revised Statutes (“A.R.S.”) section 12-2101(A)(1).

DISCUSSION

¶6 The LeBeaus contend the jury’s verdict was “contrary to the
law and the facts” and that the superior court erred by denying their motion
in limine to preclude any reference to a medical build-up argument.

I. The LeBeaus waived their insufficient evidence claim.

¶7 The LeBeaus contend the jury’s verdict was contrary to the
law and facts because Gugel “repeatedly admitted he was at fault—and
there was strong evidence that [the LeBeaus] had [] suffered injury.” Gugel
responds that the LeBeaus simply contend that insufficient evidence
supported the jury’s verdict and argues the LeBeaus waived this challenge
because they did not move for a new trial as required by A.R.S. § 12-2102(C).
We agree.

¶8 Section 12-2102(C) states, “On an appeal from a final
judgment the supreme court shall not consider the sufficiency of the
evidence to sustain the verdict or judgment in an action tried before a jury
unless a motion for a new trial was made.” We lack authority under A.R.S.
§ 12-2102(C) to consider the sufficiency of the evidence to sustain the jury
verdict unless a motion for new trial was made in the superior court. See
Marquette Venture Partners II, L.P. v. Leonesio, 227 Ariz. 179, 182, ¶ 7 (App.
2011).

¶9 Here, the LeBeaus made no post-verdict motion for new trial
or “any other post-verdict motions for judgment as a matter of law.” Id. at
¶ 8. We lack authority to consider the LeBeaus’ argument.

II. The superior court did not err by denying the LeBeaus’ motion in
limine.

¶10 The LeBeaus argue the superior court abused its discretion by
allowing Gugel to elicit medical build-up testimony over their pre-trial
objections under Arizona Rule of Evidence 403. We will not reverse the

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superior court’s ruling on the admissibility of evidence absent an abuse of
discretion. Girouard v. Skyline Steel, Inc., 215 Ariz. 126, 129, ¶ 10 (App. 2007).

¶11 “Evidence is relevant if: (a) it has any tendency to make a fact
more or less probable than it would be without the evidence; and (b) the
fact is of consequence in determining the action.” Ariz. R. Evid. 401.
Although relevant evidence is generally admissible, a “court may exclude
relevant evidence if its probative value is substantially outweighed by the
danger of . . . unfair prejudice, confusing the issues, [or] misleading the
jury.” Ariz. R. Evid. 403. “A proper Rule 403 balancing of probative value
and prejudicial effect begins with a proper assessment of the ‘probative
value of the evidence with respect to the issue for which it is offered.’”
Shotwell v. Donahoe, 207 Ariz. 287, 296, ¶ 34 (2004) (quoting State v. Gibson, 202 Ariz. 321, 324, ¶ 17 (2002)). Then, the probative value of the evidence
is balanced against its potential prejudice to the opposing party. See id. If
the issue is undisputed or other evidence that is less prejudicial but equally
probative is available, then it is more likely the potential prejudice caused
by introducing such evidence substantially outweighs its probative value.
Id.

¶12 At trial, Eric LeBeau testified that his chiropractor referred
him “to do an MRI and [sic]—for pain management.” But when his
attorney asked him, “How did you go about finding a pain management
doctor?” Eric replied, “Through my attorneys.” Eric also provided
conflicting testimony about who referred him to physical therapy. He
testified, “I went off . . . the doctor’s advice, and then my attorney.” But
when his attorney asked, “Are you sure it was your attorney?” Eric stated,
“They told me which office to go to or where to go, [o]r initially, it was the
Goodyear chiropractor, I think it was that referred. Or no, it was Dr. Shah,
actually.”

¶13 During cross-examination, Gugel raised Eric’s deposition
testimony that he was referred to the different doctors and treatments by
his attorneys. Eric responded that his deposition testimony was incorrect
at the time but acknowledged he promised to tell the truth, and he knew
his deposition statements “could be used later if [he] said something
different.”

¶14 Stacey LeBeau also testified that her chiropractor referred her
for various treatments and to different doctors. But, unlike her husband,
Stacey denied that her attorneys recommended that she engage a certain
doctor or obtain a specific treatment.

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¶15 The LeBeaus contend that “it just does not matter how a client
made it to a particular health care provider” and how they were referred to
their medical providers is “irrelevant to any issue in the case.” Gugel
counters that how the LeBeaus came to receive the medical treatment from
their providers is relevant to assess the credibility of the LeBeaus and their
witnesses, to demonstrate their providers’ potential biases and motives for
rendering treatment, and to determine whether their treatment was
reasonable and necessary.

¶16 We agree that the referral evidence is relevant to determining
whether the LeBeaus and their witnesses were credible and whether the
LeBeaus’ medical providers were biased or prejudiced. “Generally,
litigants are entitled to present evidence that tends to show bias or prejudice
on the part of witnesses, including those who testify as experts.” Am. Fam.
Mut. Ins. Co. v. Grant, 222 Ariz. 507, 511, ¶ 13 (App. 2009). And the superior
court “regularly instruct[s] jurors to assess witnesses’ credibility and to
consider any ‘motive, bias, or prejudice.’” Id. (quoting Rev. Ariz. Jury Instr.
(Civil), at 7 (4th ed. 2005)).

¶17 Here, the superior court instructed the jury, when evaluating
testimony, to consider “whether the witness has any motive, bias, or
prejudice [and] whether the witness [i]s contradicted by anything said or
written before trial or by [any] other evidence.” The jury was also
instructed to “decide the credibility and weight to be given to any evidence
presented in the case,” which included expert and witness testimony. We
presume the jury followed the court’s instructions. See Ryan v. S.F. Peaks
Trucking Co., Inc., 228 Ariz. 42, 46, ¶ 12 n.5 (App. 2011).

¶18 The LeBeaus’ medical providers’ alleged bias is also relevant
to determine whether the treatment the LeBeaus received was reasonable
and necessary. And our prior decisions have consistently established that
an expert’s relationship with the hiring party and their counsel is a proper
subject of cross-examination. See Grant, 222 Ariz. at 512, ¶ 15. Moreover,
the LeBeaus made the medical referrals an issue when they testified during
direct examination. Elia v. Pifer, 194 Ariz. 74, 79, ¶ 18 (App. 1998) (“[A]
party will not be allowed to complain of the introduction of irrelevant
evidence where he has asserted a position that makes such evidence
relevant.”).

¶19 Nonetheless, the LeBeaus assert the evidence is unduly
prejudicial because it could confuse the issues and mislead the jury. But
those risks do not outweigh the evidence’s appropriate function of
challenging the LeBeaus’ credibility and tending to demonstrate the

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potential biases and motivations of their medical providers. And the
potential for prejudice was limited, as Gugel referred to the alleged medical
build-up only once during closing argument by highlighting that Stacey did
not have any plans for future treatment when she was deposed, but after
her attorneys sent her to the doctor, she developed a plan for future
treatment. Therefore, the superior court did not abuse its discretion in
denying the LeBeaus’ motion in limine.

¶20 The LeBeaus also argue that any evidence or argument that
their attorneys referred them to their medical providers is protected by
attorney-client privilege. “As a general rule, appellate courts ‘will not
consider issues not raised in the trial court.’” City of Tucson v. Tanno, 245
Ariz. 488, 494, ¶ 22 (App. 2018) (quoting Hawkins v. Allstate Ins. Co., 152
Ariz. 477, 479 (1986)); see also Harris v. Cochise Health Sys., 215 Ariz. 344, 350,
¶ 17 (App. 2007). Here, the LeBeaus raised this argument for the first time
in their opening brief. Accordingly, they have waived the issue, and we
decline to address it on appeal.

¶21 The LeBeaus request costs on appeal. We deny the LeBeaus’
request because they are not the prevailing party. As the prevailing party,
Gugel is entitled to his taxable costs upon compliance with Rule 21,
ARCAP.

CONCLUSION

¶22 We affirm.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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