IN THE COURT OF APPEALS

STATE OF ARIZONA

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. ) O P I N I O N

)

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

FILED BY CLERK

COURT OF APPEALS

DIVISION TWO

MAY 27 2010
2

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 crossappeal, 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 
3

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.
4

¶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
5

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 
6

Cincy Rodriguez (collectively, the County defendants).1The 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 

 

1Braillard‟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 
7

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).
8

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 defendants3next 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 

 

3Although 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 HodgersDurgin 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.”).
9

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 
10

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 
11

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).

6Nothing 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.
12

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 
13

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. 
14

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 lifethreatening 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 

 

7Both Harenberg and Akpan testified they had been trained by MCSO that 

withdrawing from drugs could be life threatening.
15

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.

 

8Rodriguez 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.
16

¶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 
17

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 
18

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, 
19

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.” 
20

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 
21

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 

 

9We 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).
22

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 

 

10Qualified 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).
23

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

 

11Furthermore, 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).

12Braillard 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). 
24

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).
25

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 

 

13The 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).
26

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 

 

14In 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.
27

§ 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 
28

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.

 

15In any event, Braillard is not seeking economic damages.

16We 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).

17Although 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).
29

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
30

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 

 

18Nor 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.
31

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 
32

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.”

 

19Nor 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).
33

¶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,
34

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. 

 

20Because 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).
35

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