Felipe v. Theme Tech Corp.

GEMMILL

Affirmed in part, vacated in part, and remanded.

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.

GEMMILL, Judge.

¶ 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.

¶ 17 The trial court's practical application of the rule was logical and the limitation on Wirth's testimony was carefully crafted by the court based on Officer Garcia's testimony. In one sense, Officer Garcia may have been more “independent” than either side's retained experts because he was not paid by one side or the other to form his opinions and testify about them. But the Committee Comment provides persuasive authority that “one independent expert” actually means “one retained expert.” The Committee Comment states in pertinent part:

The amendment to Rule 26(b)(4) must be read in conjunction with the amendment to Rule 43(g). The purpose of these two rules is to avoid unnecessary costs inherent in the retention of multiple independent expert witnesses. The words “independent expert” in this rule refer to 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. As used in this rule, the word “presumptively” is intended to mean that an additional expert on an issue can be used only upon a showing of good cause. Where an issue cuts across several professional disciplines, the court should be liberal in allowing expansion of the limitation upon experts established in the rule.

....

This amendment to Rule 26(b)(4) in combination with Rule 43(g) and Rule 16(c)(3) is intended to discourage the unnecessary retention of multiple independent expert witnesses and the discovery costs associated with listing multiple cumulative independent experts as witnesses....
(Emphasis added.)

¶ 18 Our appellate courts have not provided particularly clear guidance on the meaning of “independent expert.” Two opinions of this court have accepted the Committee Comment's definition of “independent expert,” although neither focused directly on whether an expert was “independent” because the expert was “retained.” See In re Frankovitch, 211 Ariz. 370, 373–74, ¶¶ 9–12, 121 P.3d 1240, 1243–44 (App.2005) (holding that an expert presenting opinions formed as a result of statutory duties was more akin to a fact witness than an expert witness); Ariz. Dep't of Revenue v. Superior Court, 189 Ariz. 49, 52–53, 938 P.2d 98, 101–02 (App.1997) (holding that an expert who is an employee of a party is not “independent”). Our supreme court has not directly analyzed the meaning of “independent expert,” although it has stated that published comments to rules of procedure may clarify an ambiguous rule. See State v. Aguilar, 209 Ariz. 40, 48, ¶ 26, 97 P.3d 865, 873 (2004) (“a comment may clarify a rule's ambiguous language” but “cannot otherwise alter the clear text of a rule”). The supreme court has also relied on committee comments to assist it in interpreting procedural rules. See, e.g., State v. Salazar–Mercado, 234 Ariz. 590, 592–93, ¶ 7–10, 325 P.3d 996, 998–99 (2014).

¶ 19 With the issue now squarely before us, we conclude that the meaning of “independent expert” is ambiguous as used in Rule 26(b)(4)(D). The phrase “independent expert” could include, as the trial court decided, a witness such as Officer Garcia; or the phrase could mean a retained expert who is independent of any party prior to retention. Although no direct authority requires us to adopt the Committee Comment's definition of “independent expert,” we view this court's and the supreme court's previous willingness to rely on Committee Comments as sufficiently persuasive to adopt the Committee Comment's definition of “independent expert.” Therefore, we hold that an “independent expert” is a person who is retained for the purpose of offering expert opinion testimony. Because Officer Garcia was not retained by Plaintiffs, he was not Plaintiffs' independent, retained expert on the speeds of the vehicles. By precluding Wirth from testifying about the vehicles' respective speeds, the trial court erred in its application of Rule 26(b)(4)(D).

¶ 20 Defendants contend that irrespective of how we interpret Rule 26(b)(4)(D), expert testimony still may be excluded if it is cumulative of other evidence. And Defendants assert that such a discretionary exclusion is exactly what the trial court did here. We conclude otherwise.

¶ 21 A trial court certainly has the discretion to prevent the presentation of “cumulative evidence.” See Ariz. R. Evid. 403 (“The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of ... needlessly presenting cumulative evidence”). This discretion is recognized both by the Committee Comment and Arizona case law as a distinct purpose of Rule 26(b)(4)(D). See Sanchez v. Old Pueblo Anesthesia, P.C., 218 Ariz. 317, 322, ¶ 18, 183 P.3d 1285, 1290 (App.2008) (recognizing the rule is intended to limit the presentation of cumulative evidence); cf. Felder v. Physiotherapy Assocs., 215 Ariz. 154, 167–68, ¶ 65–70, 158 P.3d 877, 890–91 (App.2007) (discussing Rule 26(b)(4)(D) in the context of whether expert opinion was “duplicative”).

¶ 22 Arizona case law has defined “cumulative evidence” as evidence that “augments or tends to establish a point already proved by other evidence.” State v. Kennedy, 122 Ariz. 22, 26, 592 P.2d 1288, 1292 (App.1979) (citing State v. Turner, 92 Ariz. 214, 220–21, 375 P.2d 567, 571 (1962)); State v. Allen, 157 Ariz. 165, 177, 755 P.2d 1153, 1165 (1988). Similarly, Black's Law Dictionary defines “cumulative evidence” as “[a]dditional evidence of the same character as existing evidence and that supports a fact established by the existing evidence (esp. that which does not need further support).” Black's Law Dictionary 577 (7th ed.1999).

¶ 23 As applied here, Wirth's opinions would not be cumulative of Officer Garcia's opinions unless Officer Garcia's opinions were “established” and Wirth's were substantially the same. The record reflects, however, that Wirth's speed opinions differed from Officer Garcia's. Wirth testified at trial that he had a different opinion about the speed of Defendants' vehicle and, according to a pre-trial deposition, Wirth used different reconstruction methodologies than Officer Garcia, resulting in his different opinions on the vehicles' speeds. Specifically, Officer Garcia testified that Defendants' truck was traveling at 33 miles per hour, but Wirth concluded that the truck was traveling 37 to 42 miles per hour. The speed limit on Adams for Defendants' truck was 35 miles per hour. Additionally, Officer Garcia concluded that the Plaintiffs' vehicle was traveling at 18 miles per hour at the point of impact, but Wirth testified in deposition that this vehicle was traveling at 15 to 18 miles per hour. In the context of this case, these differences in opinion about speed were not trivial. Although we recognize that allowing Wirth's opinions on the speeds of the vehicles would result in more than one expert opinion on these issues, Wirth's opinions were not the same as Officer Garcia's, and therefore they were not “cumulative evidence” as defined in Kennedy.

¶ 24 To summarize, in light of our interpretation of Rule 26(b)(4)(D), the trial court erred in limiting Wirth's expert opinions. We also reject Defendants' reading of the record that the trial court limited Wirth's opinions on the entirely independent basis of the court's discretionary authority to limit needless cumulative evidence. Wirth's speed and reconstruction opinions were meaningfully different from Officer Garcia's and therefore not cumulative. Plaintiffs were entitled under Rule 26(b)(4)(D) to present their retained expert's opinions regarding the speeds of the vehicles and related conclusions from his reconstruction of the accident. The trial court's error was prejudicial to Plaintiffs in their effort to prove negligence, and they are therefore entitled to a new trial.

¶ 25 Although remand is necessary, there are two more issues that are appropriate for this court to resolve.

¶ 26 Plaintiffs argue the trial court abused its discretion by precluding expert testimony on Sandoval's alleged cell phone use and the potential effects of such use. We review a trial court's evidentiary rulings for an abuse of discretion. Higgins v. Assmann Electronics, Inc., 217 Ariz. 289, 298, ¶ 35, 173 P.3d 453, 462 (App.2007).

¶ 27 Plaintiffs contend the trial court erred in finding that no foundation existed for expert testimony on the effects of cell phone usage while driving, pointing to “multiple forms of evidence” that Sandoval was possibly using a cell phone at the time of collision. As recited by Plaintiffs, this evidence includes: (1) an alleged change in story by Sandoval regarding whether he saw Plaintiffs' vehicle before the collision; (2) Sandoval's failure to provide “any reason as to why he failed to slow down, brake, or take any other evasive action prior to the [collision];” (3) eyewitness evidence that Sandoval “was on his cell phone immediately after the accident;” and (4) cell phone records from Sandoval's cell phone company and 911 call records from the Phoenix Police Department, indicating that a short period of possible overlap existed between the time Sandoval initiated a call to his father and the time an eyewitness called 911. Plaintiffs rely on State v. Plew, 155 Ariz. 44, 745 P.2d 102 (1987), to argue that, even without “conclusive evidence,” there was enough evidence in the record for a jury to believe that Sandoval was using a cell phone at the time of the collision with Plaintiffs.

¶ 28 The first three items of evidence proffered by Plaintiffs are too speculative to show that Sandoval was using a cell phone at the time of the collision. Regarding the cell phone and police department records, we agree that Plew's guidance is relevant. In Plew, our supreme court held that in reviewing preliminary questions under Evidence Rule 104, a trial court is “ ‘limited to asking whether evidence in the record ... would permit a reasonable person to believe’ the evidence on the preliminary questions.” Id. at 50, 745 P.2d at 108 (quoting State v. LaGrand, 153 Ariz. 21, 28, 734 P.2d 563, 570 (1987)). Under Evidence Rule 104(b), “[w]hen the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist.” Our determination therefore rests on whether the cell phone and 911 records are sufficient to find that Sandoval was using a cell phone at the time of the collision.

¶ 29 The cell phone records show that one phone call, lasting 13 minutes, was made from Sandoval's cell phone around the time of the collision. The records also indicate that no calls were received around that time, nor were text message or voicemail features used. Sandoval testified in deposition and at trial that he placed the phone call after the collision, and an eyewitness likewise testified that she saw Sandoval get on the phone after the collision. Sandoval's father testified that Sandoval called him and told him he had been in an accident. No witnesses testified that Sandoval was using a cell phone at or before the time of the collision. According to the Phoenix Police Department records, the 911 call reporting the collision was received between 5:02:30 p.m. and 5:03:29 p.m. Sandoval's cell phone records indicated that the call placed from his cell phone began between 5:03:00 p.m. and 5:03:59 p.m. From this evidence, Plaintiffs assert a “material and disputed fact issue” existed that the jury should have been allowed to resolve.

¶ 30 A review of the “time stamps” for Sandoval's call and the 911 call reveals that, for Sandoval to have been on the phone at the time of the accident, he would have had to begin his phone call at or seconds after 5:03:00 p.m., before the accident occurred; the accident must have then happened and Sandoval remained on the phone as he got out of the truck; and then the witness called 911 before 5:03:29 p.m. On this record, Plaintiffs' proffered interpretation of the evidence is neither reasonably possible nor persuasive. The trial court did not abuse its discretion in concluding that allowing Plaintiffs' human factors expert to testify about cell phone usage would, on this record, sanction speculation and violate either Evidence Rule 402, 403, or both. Accordingly, the trial court did not err in excluding the human factors expert.

¶ 31 Plaintiffs assert that the trial court erred in granting summary judgment on their claim for punitive damages. We review a grant of summary judgment de novo, “viewing the evidence and reasonable inferences in the light most favorable to the party opposing the motion.” Andrews v. Blake, 205 Ariz. 236, 240, ¶ 12, 69 P.3d 7, 11 (2003).

¶ 32 Punitive damages may be appropriate when evidence shows that a defendant consciously and deliberately “acted with an evil mind” and such action caused tortious harm as a result. See Thompson v. Better–Bilt Aluminum Products Co., Inc., 171 Ariz. 550, 556, 832 P.2d 203, 209 (1992); Rawlings v. Apodaca, 151 Ariz. 149, 162–63, 726 P.2d 565, 578–79 (1986); Linthicum v. Nationwide Ins. Co., 150 Ariz. 326, 330–31, 723 P.2d 675, 679–80 (1986). A motion for summary judgment on a punitive damages claim must be denied “if a reasonable jury could find the requisite evil mind by clear and convincing evidence.” Thompson, 171 Ariz. at 558, 832 P.2d at 211.

¶ 33 Plaintiffs' punitive damages claim is based primarily on the allegation that Sandoval was using a cell phone at the time of the accident. Based on this record, including our affirming of the trial court's exclusion of testimony from the human factors expert, Plaintiffs cannot show that Defendants acted with the requisite evil mind to justify an award of punitive damages. The trial court did not err by granting summary judgment on this issue.

¶ 34 Because the trial court erred in its application of the one independent expert limitation under Rule 26(b)(4)(D), we vacate the judgment and remand for further proceedings. We affirm the trial court's preclusion of testimony from a human factors expert on the issue of alleged cell phone usage by Sandoval preceding the collision. We also affirm summary judgment for Defendants on the issue of punitive damages. We need not reach any additional issues or arguments raised by Plaintiffs on appeal. Plaintiffs may recover their taxable costs incurred on appeal upon compliance with Arizona Rule of Civil Appellate Procedure 21. -------- Notes: