Felipe v. Theme Tech Corp.
235 Ariz. 520
| Ariz. Ct. App. | 2014Background
- A delivery truck driven by Gibran Sandoval struck a Chevrolet Blazer, killing passenger Israel Felipe and injuring others; Plaintiffs sued for wrongful death, personal injury, and punitive damages.
- Plaintiffs planned to present a retained accident-reconstruction expert (Jeffery Wirth) and a human-factors expert on cell-phone distraction; Defendants moved to exclude the cell-phone expert and sought summary judgment on punitive damages.
- Phoenix PD Officer David Garcia investigated the scene, performed an accident reconstruction, and testified about reconstruction methods and his opinions (including vehicle speeds).
- The trial court ruled Officer Garcia’s testimony included expert opinions and, under Ariz. R. Civ. P. 26(b)(4)(D)’s “one independent expert” limit, precluded Wirth from testifying on speeds and certain reconstruction topics; it also excluded the human-factors expert and granted summary judgment on punitive damages.
- Jury returned a defense verdict; Plaintiffs appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Meaning/applicability of “one independent expert” in Ariz. R. Civ. P. 26(b)(4)(D) | Rule limits one retained expert per issue; "independent" means retained for testimonial purposes, so Officer Garcia (not retained) cannot count as Plaintiffs’ independent expert | Trial court properly treated any non-party expert testimony as invoking the one-expert limit to avoid cumulative expert opinions | "Independent expert" is ambiguous; adopt Committee Comment: means a person retained for testimonial purposes. Trial court erred to the extent it treated Officer Garcia as Plaintiffs’ independent retained expert and thereby barred Wirth on speeds; vacated and remanded on this basis |
| Whether Officer Garcia’s testimony was expert or lay | Garcia was merely an "actor or viewer" and should be treated as a fact witness | Garcia offered technical reconstruction methods and speed opinions; thus he testified as an expert | Garcia provided expert opinion under Evid. R. 702; his testimony was expert in nature |
| Exclusion of human-factors (cell-phone) expert | Enough circumstantial evidence (timeline, eyewitnesses, call logs) created a fact issue permitting expert testimony on distraction and likely cell-phone use | Timing and testimonial evidence do not reliably show Sandoval was on phone at collision; expert would be speculative and unduly prejudicial | Trial court did not abuse discretion; exclusion affirmed (cell-phone evidence/timing insufficient to support expert testimony) |
| Summary judgment on punitive damages | Plaintiffs: evidence (cell-phone use theory) could support a finding of conscious indifference/evil mind | Defendants: no clear and convincing evidence of evil mind; punitive damages unsupported | Affirmed: without human-factors expert and given record, no reasonable jury could find requisite evil mind by clear and convincing evidence |
Key Cases Cited
- Gemstar Ltd. v. Ernst & Young, 185 Ariz. 493 (standard of review for expert admissibility and trial-court discretion)
- Sanchez v. Gama, 233 Ariz. 125 (treating "actor or viewer" witness as fact witness context; discussed limits of that concept)
- In re Frankovitch, 211 Ariz. 370 (discussing when opinions formed by statutory duties resemble fact testimony rather than retained expert testimony)
- State v. Aguilar, 209 Ariz. 40 (committee comments may clarify ambiguous procedural rules)
- State v. Plew, 155 Ariz. 44 (standard for preliminary fact questions under Evid. R. 104(b))
- Thompson v. Better-Bilt Aluminum Prods. Co., 171 Ariz. 550 (standard for denying summary judgment on punitive damages: whether a reasonable jury could find evil mind by clear and convincing evidence)