Schmidt, Sethi & Akmajian Blog

Arizona Law: Courts rule on Experts, Taxable Costs, Offers of Judgment, Negligence Per Se and Arbitration Sanctions

Posted by Matt Schmidt | Oct 14, 2014 | 0 Comments

Since my last blog on Arizona law, there have been three new decisions from the Arizona Appellate Courts that have an impact on our personal injury law practice. Here is a quick summary of what you need to know:

1. In a case involving a fatal car accident, the trial court precluded the Plaintiffs from using an accident reconstructionist expert because Plaintiffs had already used an investigating officer for similar testimony. Under the Arizona Rules of Civil Procedure, parties are only allowed to use "one individual expert per issue." The Arizona Court of Appeals reversed the the trial court's preclusion, however, finding that "individual expert" means a person who is retained to offer opinion testimony as opposed to being a witness to the facts. Though the investigating officer gave opinion testimony, he also testified as a witness to facts and was not retained as Plaintiff's individual expert. The accident reconstructionist should have been allowed to testify as well.

What this means: A fact witness who is qualified to give expert opinions is not the same as an expert retained and designated solely for the purpose of giving expert opinions. Depending on the case, it might not be a bad idea to use both a fact witness who is qualified to give expert opinions (law enforcement) and a designated expert to give expert opinions (accident reconstructionist)

2. In another case, the Arizona Court of Appeals held necessary travel, "now show" and depositions costs--including equipment and translation services required at the deposition--are taxable, recoverable costs so long as they are reasonable. If the judgement and taxable costs together exceed an Offer of Judgment (taxable costs from the date the Offer of Judgement was made), sanctions should not be awarded. Finally, the court ruled Negligence per se only applies when a person violates a certain act in the statute, not when the statute simply defines the standard of care.

What this means: If an Offer of Judgement against your client beats the final judgement at trial, make sure it doesn't also beat the final judgement PLUS your taxable costs from the date the Offer was made. Sanctions won't be available if tacking the taxable costs on to the judgement beats the Offer.

Negligence per se is negligence due to an act that violates a statute, so it makes sense that the Negligence Per Se instruction would only apply to statutes involving acts rather than ones defining standard of care. For example, it makes sense to tell the jury that Defendant is negligent per se if the evidence shows he ran a red light, since running a red light is an act that violates a statute. If the statute simply states "People must act reasonably when operating a vehicle on the highway," it makes less sense to to tell the jury Defendant is negligent per se if the evidence shows he acted unreasonably on the highway, since this is cumulative and repetitive to the determination the jury already has to make regarding general negligence--whether Defendant fell below the standard of care by acting unreasonably.

3. In a case involving multiple defendants, one defendant was found 100% at fault in arbitration, appealed, and found 100% at fault by a jury at trial. Because the defendant did not improve her position from arbitration to trial by 23%, The co-defendant was granted attorneys' fees, expert fees and taxable costs against the defendant for being required to re-litigate the issues. The Court of Appeals affirmed this decision.

What this means: Historically this rule has been used to discourage plaintiffs or defendants from appealing reasonable arbitration awards, but it makes sense to  apply this to cases involving co-defendants who are then required to re-litigate  issues to protect their interests as well. The intent of the rule is to prevent unnecessary litigation, so a broad interpretation of this rule seems favorable.

Want to read more about the details of these decisions and others? Check out our Law Updates.

About the Author

Matt Schmidt

Matt graduated from the James E Rogers College of Law at the University of Arizona in passing the Arizona bar exam in 2010. Matt's primary interest in law focuses on general personal injury and insurance bad faith.


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