Felipe v. Theme Tech Corp.
| Citation | 694 Ariz. Adv. Rep. 14,235 Ariz. 520,334 P.3d 210 |
| Decision Date | 28 August 2014 |
| Docket Number | No. 1 CA–CV 13–0393.,1 CA–CV 13–0393. |
| Parties | Tammy FELIPE, as surviving parent of Israel Felipe, individually and on behalf of Jose Felipe, the statutory beneficiaries under A.R.S. § 12–612; Madelyn Perez, an individual; and Abel Garcia, an individual, Plaintiffs/Appellants, v. THEME TECH CORPORATION, a Nevada corporation; Gibran Sandoval and Jessica Sandoval, husband and wife, Defendants/Appellees. |
| Court | Court of Appeals of Arizona |
Fennemore Craig, P.C., By Julio M. Zapata, Theresa Dwyer–Federhar, Aaron T. Martin, Phoenix, Counsel for Plaintiffs/Appellants.
Potts & Associates, By Richard G. Potts, Walter Grochowski, Phoenix, Counsel for Defendant/Appellee Theme Tech Corporation.
The Doyle Firm, P.C., By William H. Doyle, Teresa H. Wales, D. Andrew Bell, Phoenix, Counsel for Defendants/Appellees Sandoval.
OPINION
¶ 1 Tammy Felipe, Madelyn Perez, and Abel Garcia (collectively “Plaintiffs”) sued Theme Tech Corporation and Gibran and Jessica Sandoval (collectively “Defendants”) for wrongful death and personal injury damages arising from an automobile accident. The jury rendered a defense verdict and judgment was entered in favor of Defendants, which Plaintiffs appeal. To resolve this appeal, we must interpret the “one independent expert” language of Arizona Rule of Civil Procedure (“Rule”) 26(b)(4)(D). We conclude that the word “independent” in Rule 26(b)(4)(D) is ambiguous and we adopt the meaning of “independent” set forth in the Committee Comment to the 1991 amendment to Rule 26, which states that an “independent expert” is “a person who will offer opinion evidence who is retained for testimonial purposes and who is not a witness to the facts giving rise to the action.” Applying this interpretation, we vacate the judgment and remand for further proceedings. We affirm, however, the trial court's pretrial ruling excluding the human factors expert and its grant of summary judgment on the issue of punitive damages.
¶ 2 Perez, Garcia, and Israel Felipe, son of Plaintiff Tammy Felipe, were passengers in a Chevrolet Blazer driven by Israel's brother, Joshua Felipe, that was heading north on 25th Avenue in Phoenix when a Theme Tech delivery truck, driven by Defendant Sandoval, was heading west on Adams Street. The vehicles collided in the intersection, with the front of the truck hitting the right side of the Blazer. Israel Felipe was killed in the accident and the others were injured. Plaintiffs sought general, special, and punitive damages.
¶ 3 Before trial, Plaintiffs disclosed their intention to present testimony from a human factors expert describing numerous ways in which cell phone usage while driving increases the likelihood of distraction. Additionally, their expert would testify that it was “more likely than not that [Sandoval] was distracted by using his cell phone at the time of the accident.” Defendants filed a motion in limine to preclude Plaintiffs from presenting expert testimony of possible cell phone use. The trial court granted the motion, finding that the evidence “established ... that [Sandoval] was not on the phone at the time of the collision.” The trial court then determined that any expert testimony based on the “assumption” that Sandoval was on the phone would be “speculation” and “not relevant pursuant to [Arizona Rule of Evidence (“Evidence Rule”) ] 402 and ... [unfairly] prejudicial pursuant to [Evidence Rule] 403.”
¶ 4 Defendants also filed a pre-trial motion for partial summary judgment on the issue of punitive damages, arguing that no evidence supported a finding that Defendants “consciously” acted to create a substantial risk to others, that Defendants acted with intent to harm, or that Defendants acted with an “evil mind.” The trial court agreed and granted the motion, holding that no reasonable jury could find by clear and convincing evidence that Defendants had acted in a way that would support a punitive damages award.
¶ 5 At trial, Plaintiffs called Officer David Garcia of the Phoenix Police Department to testify as an investigating officer and the “scene agent,” whose responsibilities included “trying to determine how the collision occurred,” “document[ing] all of the evidence available at the time,” and “putting together an accident reconstruction.” Officer Garcia's testimony included a description of the accident scene, the weather and road conditions on the day of the collision, discussion about different types of accident reconstruction methods, the method he used in his reconstruction, and the speeds of the vehicles when they collided.
¶ 6 During Officer Garcia's testimony, a bench conference took place in which Defendants questioned whether Plaintiffs intended to use Officer Garcia as their “liability expert.” After discussion, the trial court informed the parties that Plaintiffs could question Officer Garcia about his observations, but any expert opinions or conclusions elicited from Officer Garcia would preclude separate expert testimony addressing the same issues. Plaintiffs, however, had already elicited Officer Garcia's opinions regarding speed by this point in time.
¶ 7 Several days later, when ruling on the allowable scope of testimony from Plaintiffs' retained accident reconstruction expert, the court noted that Plaintiffs had questioned Officer Garcia in a manner that “laid the foundational predicate for opinion testimony” from Garcia. The court stated that “[t]here is no question in the Court's mind that the plaintiff[s] treated [Officer Garcia] as an expert reconstruction specialist.” Because Plaintiffs had elicited expert opinions from Officer Garcia, the court concluded that any further expert opinion testimony on the same issues would violate the limitation of Rule 26(b)(4)(D) to one independent expert per issue and result in the presentation of “impermissible cumulative expert opinions.” Specifically, the court ruled Plaintiffs could not present further expert testimony on the following issues: speed at impact of Plaintiffs' vehicle, speed at impact of Defendants' vehicle, whether Plaintiffs' vehicle stopped at the stop sign on 25th Avenue and Adams Street before entering the intersection where the collision occurred, and whether Plaintiffs' vehicle could have obtained a certain speed from a stopped position at the stop sign to the point of impact.
¶ 8 With these limitations, Plaintiffs called their retained expert, Jeffery Wirth, to testify about his opinions formed in the course of conducting his own accident reconstruction. Wirth testified that Sandoval had sufficient time to perceive Plaintiffs' vehicle before the collision. Although he was precluded from expressing his own expert opinions of the vehicles' speeds, Wirth did testify that he thought Officer Garcia's opinion on the speed of Defendant's vehicle was “at the low end” of the range of speeds he believed were relevant and that he “had the [Defendants' vehicle] at a higher speed” when performing his analysis.
¶ 9 The jury returned a verdict in favor of Defendants. Plaintiffs timely appeal, and we have jurisdiction in accordance with Arizona Revised Statutes (“A.R.S.”) sections 12–120.21(A)(1) and –2101(A)(1).
¶ 10 Plaintiffs assert that the trial court erred by limiting the scope of testimony by their retained accident reconstruction expert. A trial court has broad discretion in determining the admissibility of expert testimony, and we review those determinations under an abuse of discretion standard. Gemstar Ltd. v. Ernst & Young, 185 Ariz. 493, 505, 917 P.2d 222, 234 (1996). A trial court's interpretation of the rules of procedure is a question of law that we review de novo. Aztar Corp. v. U.S. Fire Ins. Co., 223 Ariz. 463, 479, ¶ 60, 224 P.3d 960, 976 (App.2010).
¶ 11 The trial court ruled that because Plaintiffs elicited Officer Garcia's opinions derived from his accident reconstruction, Plaintiffs' retained expert could not testify to his opinions on those same factors. Plaintiffs argue that, as a matter of law, Rule 26(b)(4)(D) allows a party to retain and select one “independent expert” per issue, per side, who may offer opinion testimony. Plaintiffs assert that Officer Garcia was not and could not have been their independent expert.
¶ 12 Plaintiffs first argue that Officer Garcia did not provide expert opinion testimony. According to Plaintiffs, Officer Garcia “was nothing more than an ‘actor or viewer’ involved in the aftermath of the accident.” Plaintiffs cite an opinion of this court—addressing a different issue—that agreed with a commentary on the federal rules of civil procedure stating that an expert who is “an actor or viewer with respect to the transactions or occurrences that are part of the subject matter of [a] lawsuit ... should be treated as an ordinary witness.” Sanchez v. Gama, 233 Ariz. 125, 131, ¶ 17, 310 P.3d 1, 7 (App.2013) (quoting The Advisory Committee Notes to Federal Rule of Civil Procedure 26(b)(4) ).
¶ 13 Plaintiffs' reliance on Sanchez is misplaced. The issue in Sanchez was whether a treating chiropractor was entitled to fees as an expert witness or as a lay witness, when the doctor testified pursuant to subpoena to both facts and expert opinions. Id. at ¶¶ 6, 19. Sanchez provides no guidance on whether a fact witness may also be an expert witness for purposes of the one independent expert limitation set forth in Rule 26(b)(4)(D).
¶ 14 Although Officer Garcia was an “actor or viewer” in the sense that he was the Phoenix Police Department's “scene agent,” his testimony extended beyond his observations at the scene and his physical investigation. Specifically, he described various accident reconstruction methods, his own reconstruction of this accident, and...
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