Civil Procedure/Evidence—One Expert Per Issue Rule

Felipe v. Theme Tech Corp., 694 Ariz. Adv. Rep. 14 (App. Div. I, August 28, 2014) (J. Gemmill)

INVESTIGATING OFFICER'S ACCIDENT RECONSTRUCTION TESTIMONY DID NOT CONSTITUTE PLAINTIFF'S “ONE INDEPENDENT EXPERT” ON SUBJECT OF ACCIDENT RECONSTRUCTION

Plaintiffs brought a personal injury and wrongful death action against defendant arising out of an intersection car crash. The trial court precluded plaintiff from calling a human factor's expert regarding cell phone use because it found there was no evidence the defendant was on his cell phone at the time of the collision. The trial court found no reasonable jury could conclude by clear and convincing evidence that there was an intent to injure or substantial disregard for significant risk of harm thus precluding the issue of punitive damages from going to the jury. Finally the trial court precluded plaintiffs from eliciting testimony from their accident reconstructionist regarding a number of opinions because plaintiffs had already elicited that testimony from the investigating officer. The Arizona Court of Appeals affirmed the trial court regarding the first two issues but reversed and remanded as to the accident reconstructionist testimony.   While the court of appeals found the investigating officer to have been qualified under Rule 702 of the Arizona Rules of Evidence as an expert accident reconstructionist and that he indeed offered expert opinions based upon this training, the one expert per issue rule of Arizona Rule of Civil Procedure 26(b)(4)(D) was not properly invoked.  The court found this rule to be ambiguous as to the definition of “one independent expert” and therefore choose to “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.'"   Regarding the exclusion of the human factors expert, plaintiffs' claimed defendant was distracted by his cell phone at the time of the accident based upon the fact defendant had changed his story regarding whether he saw the plaintiffs' vehicle before impact, failed to slow down or brake, was seen to be on his cell phone after the accident and because there was a possible overlap between the time he was on his cell phone talking to his father and the time of a 911 call by an eyewitness. The court of appeals found these items to be speculative and agreed with the trial court they were inadequate foundation for the human factors testimony—it was not reasonably possible for a jury to conclude the defendant was in fact on his cell phone at the time of the accident. Because plaintiffs' claim of punitive damages was based upon the alleged cell phone use this issue was also properly removed from trial.