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Romero v. Southwest Ambulance8/31/2005
After a twelve-day trial, a jury found defendants Southwest Ambulance and Rural/Metro Corporation, the City of Tucson, the Tucson Fire Department, the Tucson Police Department, and various individual employees of each (collectively, defendants) not liable in this wrongful death action. Appellant Alice Romero contends the trial court erred by admitting certain evidence about the decedent, her son; denying a motion to bifurcate the trial into liability and damage phases; and instructing the jury pursuant to A.R.S. ยง 12-711. We affirm primarily on procedural grounds, Romero having failed to provide a sufficient record on appeal. The record does support, albeit marginally, reaching the merits of Romero's constitutional challenge to the statute, which we reject.
Procedural and Factual Background
We view the evidence and all reasonable inferences in the light most favorable to upholding the jury's verdict. Crackel v. Allstate Ins. Co., 208 Ariz. 252, 92 P.3d 882 (App. 2004). On September 14, 1998, Romero's son, Mark, died in the emergency department of Kino Community Hospital. Romero thereafter filed this complaint, alleging that emergency personnel who had treated Mark had negligently caused his death.
The first trial of this case in March 2002 ended in a mistrial after six days, and the second trial was held in September 2003. Before each trial, Romero sought to preclude evidence of Mark's past illegal drug use, substance abuse treatment, criminal record, incarcerations, and diagnosis of hepatitis and to bifurcate the trial into liability and damage phases pursuant to Rule 42(b), Ariz. R. Civ. P., 16 A.R.S., Pt. 1. Before the first trial, the court denied Romero's motions with the exception of testimony about Mark's diagnosis of hepatitis C, which the court precluded. Before the second trial, Romero refiled the motions and reargued the motion to bifurcate. The trial court denied all of Romero's motions, including the motion to preclude testimony about Mark's hepatitis C.
Other Act Evidence
Romero contends the trial court erred in admitting irrelevant and unfairly prejudicial character evidence about Mark. Defendants respond that, in the absence of any transcripts, the trial court's discretionary rulings must be upheld. Although, in a civil case, a motion in limine may serve as a substitute for an evidentiary objection at trial, Premium Cigars International, Ltd. v. Farmer-Butler-Leavitt Insurance Agency, 208 Ariz. 557, 96 P.3d 555 (App. 2004); see also State v. Lichon, 163 Ariz. 186, 786 P.2d 1037 (App. 1989) (objection not required when motion in limine has been made), in the absence of the pertinent trial transcripts, we agree with defendants that we are unable to determine what evidence was presented at trial, whether Romero objected to the evidence at trial, how it was used, and how it might have prejudiced her. See Ariz. R. Evid. 103, 17A A.R.S. Consequently, Romero's unsupported arguments that the trial court abused its discretion by allowing evidence that was irrelevant to any "consequential fact" and unfairly prejudicial under Rule 403, Ariz. R. Evid., are insufficient for us to meaningfully review the trial court's rulings or to overcome the presumption that those rulings are supported by the record. See Baker v. Baker, 183 Ariz. 70, 73, 900 P.2d 764, 767 (App. 1995) ("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. When a party fails to include necessary items, we assume they would support the [trial] court's findings and conclusions."); see also State ex rel. Dep't of Econ. Sec. v. Burton, 205 Ariz. 27, 66 P.3d 70 (
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