Precision Heavy Haul Inc v. Trail King Indus. Inc. a Foreign Corp., 1 CA-CV 08-0107

• Court: Court of Appeals of Arizona
• Writing for the Court: SHELDON H. WEISBERG.
• Parties: PRECISION HEAVY HAUL, INC. an Arizona corporation,Plaintiff-Appellant-Cross-Appellee, v. TRAIL KING INDUSTRIES, INC. a foreign corporation; CARLISLE COMPANIES, INC. a foreign corporation, Defendants-Appellees-Cross-Appellants.
• Docket Number: 1 CA-CV 08-0107
• Decision Date: 20 April 2010

PRECISION HEAVY HAUL, INC.
an Arizona corporation, Plaintiff-Appellant-Cross-Appellee,
v.
TRAIL KING INDUSTRIES, INC. a foreign corporation; CARLISLE COMPANIES, INC.
a foreign corporation, Defendants-Appellees-Cross-Appellants.

1 CA-CV 08-0107

COURT OF APPEALS STATE OF ARIZONA DIVISION ONE DEPARTMENT B

Filed: April 20, 2010

NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION (Not for Publication-Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County
Cause No. CV 2002-019986
The Honorable Peter B. Swann, Judge
AFFIRMED IN PART, REVERSED IN PART AND REMANDED

Shorall, McGoldrick, Brinkman P.C.
by Thomas J. Shorall, Jr.
Scott M. Zerlaut
Attorneys for Precision Heavy Haul, Inc.

Phoenix

Renaud, Cook, Drury & Mesaros, P.A.
by John A. Klecan
J. Scott Conlon
Kevin R. Myer

Attorneys for Trail King Industries and
Carlisle Companies, Inc.

Phoenix

WEISBERG, Judge

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¶1 In this memorandum decision, we address the cross-appeal by defendant Trail King Industries, Inc. ("Trail King"), following a jury verdict in favor of plaintiff Precision Heavy Haul, Inc. ("Precision") in a negligence action. In a simultaneously filed opinion, we address Precision's appeal from the trial court's denial of prejudgment interest, which we reverse. In this decision, we consider Trail King's challenge to the admission of testimony by two of Precision's experts as well as the method used to select jury pools in the Maricopa County superior courts at the time this case went to trial. For reasons that follow, we uphold the admission of the expert testimony and the jury selection ruling.

BACKGROUND

¶2 Precision filed suit against Trail King and Carlisle Companies, Inc., and asserted claims based on negligence, strict liability, and breach of warranty. Precision alleged that it had purchased from Trail King a trailer designed to transport heavy loads, that Trail King had manufactured the trailer but that its negligent design and manufacture caused the trailer to fail and to damage the trailer and an energy transformer being transported on the trailer. Trail King's answer alleged that Precision had negligently used the trailer and that any damages "were caused or contributed to by [Precision's] own comparative

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negligence or assumption [of] risk," which would bar or reduce its claims.

¶3 At trial, Precision's owner testified that his company had incurred $694,550.87 in damages. Precision also offered the testimony of two experts concerning the cause of the accident that damaged the energy transformer. The jury returned a verdict finding Trail King 100 percent at fault and awarding $694,550.87 in damages to Precision.

¶4 Trail King moved for a new trial and/or judgment as a matter of law and asserted that (a) the court should have stricken Precision's experts' testimony; (b) Precision had not properly disclosed the testimony of a former employee; (c) the verdict resulted from passion and prejudice; (d) insufficient evidence showed that the alleged defect caused the accident; and (e) Precision had not proved its right to collect the insured portion of the loss. Trail King sought leave to supplement its motion pursuant to Arizona Rule of Civil Procedure 59(c)(1).¹

15 Trail King then amended its motion to argue for the first time that the process for selecting the jury panel "was an irregularity in the proceedings" that deprived it of a fair trial. Trail King said that it had discovered this issue on June 13, 2006; that on April 28, 2006 the issue had been

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identified in other cases and had been assigned for resolution to the Honorable William J. O'Neil of Pinal County; and asked that the issue be presented to Judge O'Neil.² The superior court transferred the issue to Judge O'Neil and did not rule on the pending motions.

¶6 In October 2007, Judge O'Neil issued a ruling finding that the Proximity Weighted Summoning ("PWS") System³ used in Maricopa County did not violate applicable state statutes and that Maricopa County jurors "were selected randomly in that they were chosen in an unbiased manner, with no predetermination of who would be selected."⁴ The superior court then set oral argument on Trail King's motions.

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¶7 Trail King filed a second amended motion for new trial and at oral argument conceded that Judge O'Neil's ruling had disposed of the challenge to the PWS System. The trial judge, the Honorable Peter Swann, denied Trail King's motions and on January 22, 2007 issued a signed judgment. Precision appealed from the denial of prejudgment interest, and Trail King cross-appealed from the order denying the motions for new trial and from Judge O'Neil's order. We have jurisdiction pursuant to

Arizona Revised Statutes ("A.R.S.") section 12-2101(B) (2003).

DISCUSSION

Admission of Expert Testimony

¶8 We first consider whether the testimony of Precision's experts should have been stricken as unreliable. We will affirm the trial court's admission or exclusion of evidence unless we find a clear abuse of discretion or legal error and resulting prejudice. Lohmeier v. Hammer, 214 Ariz. 57, 60, 1 6, 148 P.3d 101, 104 (App. 2006).

¶9 Trail King acknowledges that in Logerquist v. McVey, 196 Ariz. 470, 488, 1 52, 1 P.3d 113, 131 (2000), our...