Link v. Pima County

• Decision Date: 23 June 1998
• Docket Number: CA-CV,No. 2,2
• Citation: 193 Ariz. 336,972 P.2d 669
• Parties: , 272 Ariz. Adv. Rep. 22 Charles LINK, a single man, Plaintiff/Appellant, v. PIMA COUNTY, a body politic, Defendant/Appellee. 96-0211.
• Court: Arizona Court of Appeals

Page 669

972 P.2d 669

193 Ariz. 336, 272 Ariz. Adv. Rep. 22

Charles LINK, a single man, Plaintiff/Appellant, v. PIMA COUNTY, a body politic, Defendant/Appellee.

No. 2 CA-CV 96-0211.

Court of Appeals of Arizona Division 2, Department B.

June 23, 1998.

Review Denied March 19, 1999.

Reconsideration Denied March 19, 1999.

Law Offices of Kevin Miniat, P.C. By Kevin E. Miniat and Jerald R. Wilson, Tucson, Attorneys for Plaintiff/Appellant.

Barbara LaWall, Pima County Attorney By Thomas E. Dugal, Tucson, Attorneys for Defendant/Appellee.

OPINION

HOWARD, Judge.

¶1 Appellant Charles Link was injured in April 1993, when the vehicle he was driving was struck by another vehicle at the intersection of Thornydale and Overton Roads in Pima County. Although the County had conducted a traffic study of the intersection in 1991 which indicated that improvements should be made, construction of those improvements had not begun at the time Link was injured. Link sued the County, claiming that the two-and-one-half-year period between the initial study and construction of the improvements was unreasonably long and that the County should have undertaken interim improvements, such as a temporary traffic signal or four-way stop signs, during the period between the study and construction.

¶2 Link appeals from the trial court's grant of summary judgment for the County on the claim that the construction delay was unreasonably long. He also appeals from the judgment following a jury verdict in favor of the County on his claim that the County failed to make interim improvements. We affirm the summary judgment and reverse the judgment based on the jury verdict.

Unreasonable Delay in Construction

1. Untimely Disclosure

¶3 Link first claims the trial court abused its discretion by disallowing as untimely Link's detailed factual support on the unreasonable delay claim and striking the affidavit of Robert Bleyl, Link's traffic engineering expert. "The trial court has broad discretion in ruling on discovery and disclosure matters," and we will not disturb its ruling absent an abuse of discretion. Rosner v. Denim & Diamonds, Inc., 188 Ariz. 431, 434, 937 P.2d 353, 356 (App.1996).

¶4 Parties are required to voluntarily disclose the factual basis for each claim, a general description of documents they intend to use at trial, the names and addresses of the expert witnesses they intend to call at trial, and the substance of and grounds for the experts' opinions. Ariz.R.Civ.P. 26.1(a), 16 A.R.S. ¹ Disclosures shall include information "in the possession, custody and control of the parties as well as that which can be ascertained, learned or acquired by reasonable inquiry and investigation." Ariz.R.Civ.P. 26.1(b)(3). Parties are required to seasonably amend their disclosures "whenever new or different information is discovered or revealed" and are not permitted to use information disclosed less than sixty days before trial except by leave of court. Ariz.R.Civ.P. 26.1(b)(2). The trial court can exclude evidence that is not timely disclosed. Ariz.R.Civ.P. 26.1(c). ²

¶5 In 1994, Link filed a supplemental disclosure statement, stating as the factual basis for his claim of unreasonable delay the general allegation that the 1991 recommendation to improve the intersection was not implemented until the middle of 1993. In January 1995, Link filed another supplemental disclosure statement, identifying Robert Bleyl as his traffic engineering expert who would testify at trial that the two-and-one-half-year delay was inordinately long. In June, Link filed yet another supplemental disclosure statement, stating he intended to rely at trial on Bleyl's testimony and "[a]ny and all documents produced by Pima County in connection with the subject intersection." In July, however, Bleyl was deposed and testified that two and one-half years "was an appropriate period of time to do all the things that needed to be done."

¶6 Three months later, in a motion to preclude the County's expert witness, Link reiterated his claim that the two-and-one-half-year delay was unreasonable. Realizing then that Link had not abandoned that claim despite Bleyl's deposition testimony, the County filed a motion for summary judgment on the grounds that Link had failed to produce required expert testimony to support his claim and that the County had absolute immunity as to that claim.

¶7 In response to the motion, Link detailed for the first time, one month before trial, the factual support for his unreasonable delay claim. He also attached an affidavit from his attorney, which stated that he had not provided Bleyl with the documents relied on in the response to the motion for summary judgment to support the claim of unreasonable delay. Two weeks before trial, Link supplemented his response with an affidavit from Bleyl in which Bleyl stated that he had reviewed Link's opposition to the motion for summary judgment, the supporting statement of facts, and the attached exhibits, and that he now concluded the delay was unreasonable. Link did not attempt to provide good cause for the untimely disclosure or to explain the lack of diligence in pointing out the facts underlying his claim to the County or to his own expert.

¶8 Link argues Bleyl's affidavit was untimely only because the County's motion for summary judgment was untimely. ³ We disagree. Link was required to seasonably update his disclosures and failed to do so. Although Link disclosed in June that he intended to rely at trial on County documents to support his claim, he did not detail the facts upon which he intended to rely or provide Bleyl with the documents necessary for him to form his expert opinion until October or November, after the motion for summary judgment had been filed and after the sixty-day disclosure deadline had passed. Link does not claim that these facts were in any way unavailable to him prior to that time. This information was either within Link's possession or was obtainable by reasonable investigation, Rule 26.1(b)(3), and should have been disclosed and provided to Bleyl before his deposition in order for the deposition to be beneficial in the discovery process. Both the underlying facts and Bleyl's opinion were certainly required to be disclosed earlier than one month or two weeks, respectively, before the trial.

¶9 Further, the County properly treated Bleyl's deposition testimony, which contradicted the January disclosure, as amending Link's prior disclosures. See State Bar Committee Note to Rule 37(c) ("[T]he disclosure of the information need not be in a formal disclosure statement but can be in ... [a] deposition."). Link was aware of Bleyl's unfavorable testimony at or shortly after his deposition was taken. Link's attempt to supplement his disclosure with Bleyl's affidavit, submitted two weeks before trial and more than three months after his deposition, was not a seasonable or timely update of the prior disclosure by deposition. Rule 26.1(b)(2) ("[A]dditional or amended disclosures shall be made seasonably, but in no event more than thirty (30) days after the information is revealed to or discovered by the disclosing party."). Similarly, detailing one month before trial specific facts underlying the claim that unreasonable delays occurred within and between individual pre-construction phases, is significantly different than alleging generally that a two-and-one-half-year delay is unreasonably long; it also is untimely. Link offered no justification for failing to seasonably update the disclosure of the facts or Bleyl's opinion.

¶10 Link contends his "technical" violation of the disclosure rule was harmless. Link, however, attempted to create an issue, uncontested after Bleyl's deposition, just two weeks before trial. In arguing lack of prejudice, he relies on Allstate Insurance Co. v. O'Toole, 182 Ariz. 284, 896 P.2d 254 (1995). The supreme court in Allstate cited with approval our decision in Jones v. Buchanan, 177 Ariz. 410, 868 P.2d 993 (App.1993), which stands for the proposition that disclosure of new witnesses just prior to trial may be prejudicial enough to require their exclusion. After his deposition, Bleyl clearly could not have been considered an expert witness for Link on the unreasonable delay claim. The later disclosure of his new opinion, therefore, was similar to the expert disclosure violations discussed in Jones. Furthermore, the degree of prejudice is just one factor to be considered among the several detailed in Allstate, and now, under current Rule 37(c)(1). ⁴ The State Bar Committee Notes to that amended rule state:

Although the Allstate factors allow flexibility, those militating against the use of late disclosed evidence gain strength as the trial nears. Late disclosure will prejudice the opposing party if there is insufficient time to investigate fully and prepare rebuttal before the date for final supplementation of disclosures. Prejudice is also inherent when a trial must be continued after the parties have spent time and resources in preparation. The rule requires full, early and continuous disclosure. Gamesmanship at any stage of the proceedings should be addressed strongly.

¶11 Here, Link, in substance, attempted to add a new expert opinion on a significant theory of liability and previously undisclosed facts to support that theory well after the sixty-day deadline. The County obviously had no opportunity to investigate fully and prepare rebuttal before the disclosure deadline because that had passed before the information was disclosed. Under the circumstances, the trial court did not abuse its broad discretion after weighing all the factors in Allstate, including, but not limited to, prejudice, by refusing both the untimely facts and Bleyl's untimely affidavit.

2. Summary Judgment

¶12 We review de novo the propriety of granting summary judgment, Phipps v. CW Leasing, Inc., 186 Ariz. 397, 923 P.2d 863 (App.1996), and "view the facts and all reasonable...