STATE of Arizona ex rel. William G. MONTGOMERY, Maricopa County Attorney, Petitioner, v. The Honorable Phemonia L. MILLER, Commissioner of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Commissioner, Suzanne Racquel Madrid, Real Party in Interest.
No. 1 CA-SA 13-0132
Court of Appeals of Arizona, Division 1
March 28, 2014
321 P.3d 454
Sales Co., 205 Ariz. 594, ¶ 27, 74 P.3d at 274 (surety defenses can be impliedly waived within guaranty), having already found express waiver, we need not reach that issue.7
¶ 16 And because the Williamsons expressly waived their defense of mitigation of damages, we need not address our 1980 decision, Universal Inv. Co. v. Sahara Motor Inn, Inc., 127 Ariz. 213, 619 P.2d 485 (App.1980), cited by Pi‘Ikea for the proposition that the principle of mitigation of damages is not applicable when there is an absolute promise to pay. Further, in view of the Williamsons’ waiver, and our conclusion the trial court ruled correctly, albeit on other grounds, we need not reach the Williamsons’ additional argument regarding the sufficiency of the evidence demonstrating lack of mitigation nor Pi‘Ikea‘s argument concerning the Williamsons’ alleged failure to dispute damages.
Attorney Fees and Costs
¶ 17 Both the Williamsons and Pi‘Ikea have requested attorney fees on appeal. Pi‘Ikea bases its request on section 3.4 of the Guaranty which provides, inter alia, that if a judicial proceeding is brought by the “Lender to enforce this Guaranty, Guarantors jointly and severally promise to pay Lender‘s reasonable attorneys’ fees and court costs incurred therein.” Contractual provisions for attorney fees are enforced according to the terms of the contract. See First Fed. Sav. & Loan Ass‘n of Phoenix v. Ram, 135 Ariz. 178, 181, 659 P.2d 1323, 1326 (App. 1982). Because Pi‘Ikea has prevailed on appeal, we grant its request and award its reasonable attorney fees and costs on appeal upon its compliance with
Disposition
¶ 18 For the foregoing reasons, the trial court‘s grant of summary judgment in favor of Pi‘Ikea is affirmed.
Law Offices of Neal W. Bassett By Neal W. Bassett, Phoenix, Shell & Nermyr PLLC By Mark A. Nermyr, Chandler, Co-Counsel for Real Party in Interest.
OPINION
GOULD, Judge.
¶ 1 The State seeks special action relief from the trial court‘s order granting Defendant‘s motion in limine. The trial court‘s order precluded the State‘s expert from testifying that, based on his retrograde extrapolation calculation, Defendant‘s blood alcohol concentration (BAC) was above the legal limit within two hours of driving. Because we conclude the expert‘s testimony is admissible under
Facts and Procedural Background
¶ 2 In May 2009, Suzanne Racquel Madrid (“Defendant“) was stopped by the police on suspicion of driving under the influence of alcohol. The traffic stop occurred at 2:20 a.m. Defendant was arrested, and at 6:15 a.m. her blood was drawn. Defendant‘s blood test showed her BAC was .127.
¶ 3 Defendant was eventually indicted on two counts of aggravated driving while under the influence of alcohol (“DUI“). Count One charged Defendant with driving under the influence of alcohol while her ability to drive was impaired by alcohol “to the slightest degree.”
¶ 5 A retrograde, or retroactive extrapolation, is a method by which a person‘s BAC at an earlier point in time is calculated based on his BAC from a later blood test. Claybrook, 193 Ariz. at 590, ¶¶ 14-15, 975 P.2d at 1103; Ring, 141 Ariz. at 69, 685 P.2d at 134. Here, the State‘s expert planned to use retrograde extrapolation to calculate Defendant‘s blood alcohol content within two hours of the stop based on the blood draw taken at 6:15 a.m.
¶ 6 Prior to trial, Defendant filed a motion requesting an evidentiary hearing to determine the admissibility of the State‘s proffered retrograde extrapolation testimony. The trial court held an evidentiary hearing on the motion, during which the State‘s expert, John Musselman, and Defendant‘s expert, Chester Flaxmayer, testified about the science of retrograde extrapolation.
¶ 7 Both Musselman and Flaxmayer agreed on the validity of the basic science underlying retrograde extrapolation. The experts testified that when individuals drink alcohol, it is absorbed into their blood stream. After they stop drinking, their blood alcohol concentration will continue to rise until it reaches a “peak,” or maximum concentration in their blood. After a person‘s BAC reaches its peak, it will then begin to fall as their body eliminates alcohol faster than it absorbs it.
¶ 8 Musselman and Flaxmayer agreed that there are two key factors in making a retrograde calculation: (1) the amount of time it takes a person to fully absorb alcohol and reach a “peak” BAC, and (2) the rate at which a person eliminates alcohol from his body. Flaxmayer agreed that the alcohol elimination rate used by Musselman in his retrograde analysis was scientifically valid.4 Both experts also agreed that in order to make a valid retrograde analysis, an individual must have been “fully absorbed,” or have reached a peak BAC at the relevant time period.5 Otherwise, the retrograde analysis may overestimate a person‘s BAC. Finally, both Musselman and Flaxmayer testified that a number of variables affect how long it takes an individual to reach their peak BAC, including drinking history (time of last drink, how much they drank and over what time period, what type of alcohol they drank, whether they are a heavy or social drinker), eating history (when they ate, what they ate and how much food they consumed before they were stopped), and personal characteristics (height, weight, gender).
¶ 10 Musselman agreed with Flaxmayer that a scientifically valid retrograde analysis could not be related back to Defendant‘s time of driving without knowing what she ate and drank, and when, before she was arrested. However, Musselman testified that a valid retrograde analysis could be performed to within two hours of Defendant‘s driving even without information concerning Defendant‘s eating and drinking history. Musselman‘s opinion was based on three assumptions: (1) Defendant consumed no alcohol or food in the two hour interval after she was stopped; (2) the average person is fully absorbed and reaches peak BAC within two hours after consuming their last drink, which in this case would have been no later than the time of the traffic stop; and (3) a range of BAC is used rather than a specific value. Based on these assumptions, Musselman testified that Defendant‘s BAC within two hours of driving was .127 to .177, well above the legal limit of .08.
¶ 11 Flaxmayer testified that a valid retrograde analysis could not be performed to within two hours of driving without knowing Defendant‘s eating and drinking history prior to the traffic stop. He opined that it is not reasonable to assume the average person reaches peak BAC within two hours of consuming their last drink, because “large numbers of individuals” do not reach peak BAC within this time period. Flaxmayer stated that it is critical to know a person‘s eating and drinking history in order to determine when a person reaches his peak BAC and that any assumptions about a person‘s peak BAC without this information are speculative.
¶ 12 The trial court granted Defendant‘s motion in limine, finding that Musselman‘s retrograde analysis was not reliable under the “Daubert standards” set forth in “amended
¶ 13 The State filed this special action challenging the trial court‘s order and requesting a stay of the jury trial. We previously granted the State‘s stay request.
¶ 14 We accept jurisdiction of this special action because the State has no immediate right to appeal the trial court‘s preclusion order; as a result, the State has no “equally plain, speedy, and adequate remedy by appeal.”
Standard of Review
¶ 15 We review the interpretation of court rules de novo, and a trial court‘s decision to admit or preclude expert testimony for an abuse of discretion. General Electric Co. v. Joiner, 522 U.S. 136, 139, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997); Bernstein, 234 Ariz. at 94, ¶ 10, 317 P.3d at 635. An appellate court “will not disturb a trial court‘s rulings on the admission or exclusion of evidence unless [the court] finds a clear abuse of discretion and resulting prejudice, or finds that the trial court misapplied the law.” Lohmeier v. Hammer, 214 Ariz. 57, 61, ¶ 7, 148 P.3d 101, 105 (App.2006).
Discussion
¶ 16 The State contends the trial court abused its discretion in precluding the State‘s expert witness testimony. The State argues that the retrograde extrapolation methodology used by its expert is scientifically valid and reliable, and that the trial court abused its role as gatekeeper under
I. Rule 702 and Daubert
¶ 17 Prior to 2010, Arizona‘s standard for the admissibility of scientific expert testimony was the general acceptance test set forth in Frye v. United States, 293 F. 1013 (D.C.Cir.1923). Logerquist v. McVey, 196 Ariz. 470, 1 P.3d 113 (2000). Effective January 1, 2012, the Arizona Supreme Court amended
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert‘s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
¶ 18 Because
¶ 19 Like its federal counterpart,
¶ 20 In evaluating admissibility, courts must remain cognizant of the separate functions of judge and jury. The court‘s role as gatekeeper does not supplant or replace the adversary system.
¶ 21 The initial consideration under amended
¶ 22 Under
¶ 23
¶ 25 No single Daubert factor is dispositive of the reliability of an expert‘s testimony, and not all of the Daubert factors will apply to “all experts or in every case.” Kumho Tire, 526 U.S. at 141-42, 152, 119 S.Ct. 1167;
¶ 26 Finally,
¶ 27 In assessing the reliability of an expert‘s conclusions and opinions under
II. Analysis
¶ 28 There is no contention in this case that the State‘s expert lacked the qualifications to render an opinion regarding Defendant‘s BAC using retrograde extrapolation. In addition, it is undisputed that Musselman‘s testimony is relevant. As the trial court noted, Musselman‘s retrograde analysis would assist the jury in determining whether Defendant had a BAC above the legal limit
¶ 29 Moreover, while Defendant‘s contention that Musselman based his opinion on insufficient facts (e.g., concerning her eating and drinking history) arguably falls under
¶ 30 The core dispute in this case is the reliability of Musselman‘s methodology and opinions under
A. Rule 702(c) Factors
1. Testing
¶ 31 The first Daubert factor, “testability,” focuses on whether a method or theory “can be (or has been) tested.” Daubert, 509 U.S. at 593, 113 S.Ct. 2786; see United States v. Bonds, 12 F.3d 540, 559 (6th Cir.1993). The inquiry is “whether the expert‘s theory can be challenged in some objective sense, or whether it is instead simply a subjective, conclusory approach that cannot reasonably” be tested to determine its reliability.
¶ 32 In this case, the issue of testing focuses on Musselman‘s assumption that the average person reaches his peak BAC within two hours of driving. This assumption can be and has been tested. Musselman testified that he has participated in workshops testing the absorption rates of individuals “dosed” with alcohol. In addition, Musselman testified about numerous studies and tests that have been conducted concerning absorption rates.
2. Peer Review and Publication
¶ 33 The second Daubert factor addresses whether a theory or technique has been subjected to peer review and publication. Daubert, 509 U.S. at 593, 113 S.Ct. 2786. Daubert noted that “submission to the scrutiny of the scientific community is a component of ‘good science,’ in part because it increases the likelihood that substantive flaws in methodology will be detected.” Daubert, 509 U.S. at 593, 113 S.Ct. 2786. Under this factor, it is important to recognize that flaws in a methodology “uncovered by peer review do not necessarily equate to a lack of scientific validity,” and may be relevant to “the weight, not the admissibility, of the evidence.” Bonds, 12 F.3d at 559. Rather, “peer review and publication should be viewed as evidence that the theory and methodology are scientific knowledge capable of being scrutinized by the scientific community.” Id.
¶ 34 The Daubert court was cognizant of the fact that publication is not the sine qua non of admissibility of expert testimony, as there are some instances in which “well-grounded” but novel theories will not have been published. Daubert, 509 U.S. at 593, 113 S.Ct. 2786. See also Kannankeril v. Terminix Int‘l. Inc., 128 F.3d 802, 809 (3rd Cir.1997) (holding that peer review or publication are not necessary conditions of reliability when an expert‘s opinion is supported by “widely accepted scientific knowledge“). In addition, courts should take into account that some methods or theories are of limited
¶ 35 Here, Musselman testified that his methodology of performing retrograde extrapolation calculations based on average absorption rates has been peer reviewed in several scholarly journals. In addition, the State submitted several peer reviewed publications discussing the use of average absorption rates in performing retrograde extrapolations.
3. General Acceptance
¶ 36 The next Daubert factor is general acceptance within the relevant scientific community. “Widespread acceptance can be an important factor in ruling particular evidence admissible, and ‘a known technique which has been able to attract only minimal support within the community’ may properly be viewed with skepticism.” Daubert, 509 U.S. at 594, 113 S.Ct. 2786 (internal citations omitted). The absence of a consensus or acceptance by a majority of the relevant scientific community does not necessarily rule out general acceptance, as in some instances there may be several different theories, all of which are generally accepted. Bonds, 12 F.3d at 562. Moreover, substantial criticism of a particular theory does not mean the theory or technique lacks general acceptance. Id. “Only when a theory or procedure does not have the acceptance of most of the pertinent scientific community, and in fact a substantial part of the scientific community disfavors the principle or procedure, will it not be generally accepted.” Id. (citing Novak v. United States, 865 F.2d 718, 725 (6th Cir.1989)).
¶ 37 The State presented evidence that Musselman‘s methodology has been generally accepted within the relevant scientific community. Musselman testified that several studies and scholarly publications support his opinion that the average person reaches peak BAC within two hours of their last drink. In addition, the State presented several articles in support of Musselman‘s testimony. For example, the State presented publications by Dr. Kurt Dubowski and Dr. Alan Jones, both of whom were cited by Flaxmayer and Musselman as well-recognized experts in the field of retrograde extrapolation, as support for Musselman‘s claim that his methodology was generally accepted in the relevant scientific community.6
¶ 38 While the record shows arguable flaws in Musselman‘s methodology, and disagreement in the scientific community as to whether Musselman‘s method is the most accurate method to perform a retrograde analysis, we conclude that his methodology is generally accepted as valid in the relevant scientific community.
4. Rate of Error
¶ 39 The fourth Daubert factor, rate of error, examines whether an expert‘s methodology can be objectively evaluated for known or potential error rates, and whether the rate of error is acceptable in the relevant scientific community. Daubert, 509 U.S. at 594, 113 S.Ct. 2786; Bonds, 12 F.3d at 560.
¶ 40 In the instant case, the potential rate of error for Musselman‘s retrograde analysis is dependent upon the accuracy of his assumption that Defendant, like the average person, reached her peak BAC within two hours of driving. Flaxmayer testified that
¶ 41 Musselman, however, cited several studies showing that most people reach their peak BAC within two hours of their last drink. For example, Musselman cited a study by Jones and Neri showing that 87.5% (14 of 16) of participants reached peak BAC within two hours of their last drink. In addition, the State presented evidence from another study by Jones showing the absorption rates for 1000 participants on an empty stomach. See Jones, supra note 6, at 376. The results of the tests showed that 77% of the participants reached peak BAC within 0-45 minutes of drinking and 92% reached peak BAC within 0-75 minutes of drinking. Id. at 378-79. In his study, Jones also references another study where 81% of the participants reached peak BAC within 30 minutes of drinking. Id. at 383. Based on these and other studies, Musselman testified that while some persons can take more than two hours to reach peak BAC, these individuals are “outliers,” and do not reflect the absorption rates for the typical individual.
¶ 42 Flaxmayer‘s testimony partially corroborated Musselman‘s on the issue of average absorption rates. Flaxmayer testified that based on the studies he had reviewed, the average person on an empty stomach reaches peak BAC in 50-51 minutes, with “one person” reaching peak BAC in 14 minutes, and “at least one person [taking] 138 minutes.” Flaxmayer testified that the average person who has consumed one pound of food will reach peak BAC within two hours, with the range being anywhere from 30 minutes to three hours. Finally, Flaxmayer testified that a person eating a heavy, 2000 calorie meal will average approximately three hours to reach his peak, with a range of 45 minutes to over four hours.
¶ 43 Musselman accounts for the potential rate of error in his methodology in a number of ways. First, he relies upon a conservative peak absorption rate of two hours, rather than the average of 30 minutes to an hour, to account for the lack of information about Defendant‘s last meal. See United States v. Tsosie, 791 F.Supp.2d 1099, 1115-16 (D.N.M.2011) (expert‘s assumption that defendant was fully absorbed within two hours of driving was a reasonable assumption to account for expert‘s lack of information about defendant‘s last meal); Commonwealth v. Senior, 433 Mass. 453, 744 N.E.2d 614, 619–20 (2001) (same). Second, Musselman accounted for the lack of information regarding Defendant‘s drinking history by using a conservative alcohol elimination rate. Tsosie, 791 F.Supp.2d at 1115-16 (expert‘s assumption that the “general population eliminates alcohol at a rate between .01 and .03 mg/mL/h” was a reasonable assumption to account for expert‘s lack of information about defendant‘s drinking history); Senior, 744 N.E.2d at 619 (same). Using this conservative elimination rate, Musselman calculated that the low end of Defendant‘s BAC range within two hours of driving would have been .143. Musselman, however, took this conservative elimination rate even further, using Defendant‘s actual BAC of .127 approximately four hours after driving as the low end of Defendant‘s range. Finally, to further account for variations in Defendant‘s eating and drinking history, Musselman did not provide a specific value for Defendant‘s BAC, but rather provided a range of values. Tsosie, 791 F.Supp.2d at 1115-16 (range of values for BAC is scientifically valid where expert relies upon assumptions as to average absorption and elimination rates); Senior, 744 N.E.2d at 620 (same).
¶ 44 Based on the foregoing, we conclude Musselman‘s methodology reliably accounted for the potential rate of error in his retrograde analysis.
5. Professional Standards
¶ 45 The fifth Daubert factor inquires whether there are universal standards that govern the application of a technique or method. Daubert, 509 U.S. at 594, 113 S.Ct. 2786. Maintenance of industry standards is a strong factor in favor of admissibility. United States v. Monteiro, 407 F.Supp.2d 351, 369 (D.Mass.2006). However, “[t]he lack of a universal standard [for application of a technique] is troubling but not fatal under Daubert/Kumho because a court may admit well-founded testimony based on specialized training and experience.” Id. at 371.
¶ 46 While Defendant contests the accuracy of Musselman‘s retrograde calculation, both Musselman and Flaxmayer agreed on the validity and standard use of the basic science underlying retrograde analysis. See supra, at ¶ 7. Moreover, both experts agreed that some accepted standards, such as average elimination rates, are used in retrograde extrapolation. The record also reflects that several studies have produced standards and guidelines for making a retrograde calculation. See supra, ¶¶ 7-8, 37, 41-43. Accordingly, we conclude that there are general scientific standards that govern the use of retrograde extrapolation.
6. Independent Studies/Non-Judicial Uses
¶ 47 In addition to the Daubert factors, courts may also consider whether an expert developed his opinion based on independent research, or whether the expert developed his opinion “expressly for purposes of testifying.” Daubert II, 43 F.3d at 1317; see
¶ 48 The record reflects that retrograde extrapolation is a forensic science primarily used to establish a person‘s BAC for the purpose of criminal DUI prosecution.7 We note, however, that the theory and methodology of retrograde extrapolation has undergone a great deal of testing and study outside the courtroom. As a result, we conclude this factor does not weigh strongly either for or against the reliability of Musselman‘s testimony.
7. Reliability of Discipline/Determinations by Other Courts
¶ 49 Another factor is whether the expert‘s field of expertise is known to reach reliable results.
¶ 50 The State emphasizes that Arizona courts have recognized the utility and admissibility of retrograde extrapolation for many years. See, e.g., State v. Stanley, 217 Ariz. 253, 258, ¶ 24, 172 P.3d 848, 853 (App.2007) (stating that an expert “must use retroactive extrapolation to determine blood alcohol content” if the defendant‘s blood sample is drawn more than two hours after driving); Claybrook, 193 Ariz. at 590, ¶ 15, 975 P.2d at 1103 (“The scientific community has generally accepted” retrograde extrapolation); Ring, 141 Ariz. at 69, n. 6, 685 P.2d at 134, n. 6 (stating that retrograde extrapolation has “achieved general acceptance in the scientific field“). However, none of the Arizona cases cited by the State specifically addresses the reliability of the methodology used by Musselman.
¶ 51 Several courts from other jurisdictions have found the methodology used by Musselman to be reliable. Tsosie, 791 F.Supp.2d at 1115-16 (holding that retrograde analysis to time of test is a reliable methodology, where, in the absence of information about the defendant‘s eating and drinking history, an expert relies upon reasonable assumptions as to the average absorption and elimination rates of the general population); Burgess, 188 Vt. 235, 5 A.3d at 916–17 (retrograde analysis to the time of test is a reliable methodology despite the absence of information about the defendant‘s eating and drinking history; while such information “would undoubtedly make for a more accurate analysis, that is an issue that goes to the weight of the evidence” and not its admissibility); Senior, 744 N.E.2d at 620-21 (stating that retrograde analysis based on average absorption and elimination rates is reliable).
¶ 52 However, as noted earlier, the trial court and Defendant rely upon State v. Armstrong, 267 P.3d 777 (Nev.2011), for the proposition that retrograde extrapolation is unreliable if it is insufficiently tied to the drinking and eating history of a defendant. We conclude that Armstrong is not persuasive authority for three reasons. First, Nevada has not adopted the Daubert standard, and as a result Armstrong did not determine the admissibility of retrograde analysis under a standard comparable to
¶ 53 Third, Armstrong relied upon the analysis used by the Texas Court of Criminal Appeals in Mata v. State, 46 S.W.3d 902 (Tex.Crim.App.2001), a case we find readily distinguishable. Like Armstrong, Mata analyzed the use of retrograde analysis to determine a defendant‘s BAC at the time of driving, rather than the time of the test. Mata, 46 S.W.3d at 905, 908-09, 913. The Mata court stated that it was not addressing “whether test results showing a defendant‘s BAC at some time after the alleged offense are admissible at trial in the absence of retrograde extrapolation.” Id. at 910. Moreover, the decision in Mata was based on Texas’ clear and convincing standard for proving the admissibility of expert testimony, rather than the preponderance standard used in Arizona. Id. at 908, 917. Finally, many of the concerns of the Mata court were based on specific problems with the State‘s expert and his ability to explain his methodology, a problem that is not present in the instant case. Id. at 914-16.
¶ 54 Accordingly, we conclude that (1) retrograde analysis is generally considered to be a reliable scientific discipline, and (2) courts that have considered the methodology used by the State‘s expert have determined that it is reliable.
B. Rule 702(d) Factors
1. Obvious Alternative Explanations
¶ 55 In considering the reliability of a methodology as applied to a particular case, courts will examine whether the expert “has adequately accounted for obvious alternative explanations.”
¶ 56 Our review of the record shows that Musselman adequately accounted for obvious alternative explanations in reaching his opinion. Musselman considered the effect Defendant‘s eating and drinking history would have had on her BAC, including a scenario where Defendant may have consumed a large amount of alcohol immediately before the traffic stop. Musselman also considered whether his retrograde extrapolation produced an artificially high BAC based on the possibility Defendant was not fully absorbed within two hours of driving. Musselman adequately accounted for this possibility by basing his retrograde analysis on conservative absorption and elimination rates, as well as providing a range for Defendant‘s BAC rather than a specific value. See supra, ¶¶ 40-44.
2. Adequately Accounting for Unknown Variables
¶ 57 The trial court determined that Musselman‘s testimony was unreliable because he (1) failed to take into account the “unknown variables” of Defendant‘s drinking and eating history, and (2) he did not give “the defendant the benefit of the doubt” as to these unknown variables. We disagree.
¶ 58 First, Musselman did have some information about Defendant‘s eating and drinking history; he knew that Defendant‘s last drink was before 2:20 a.m., and that Defendant did not eat any significant amount of food after that time. See supra, ¶ 10. Second, Musselman accounted for his lack of additional information about Defendant‘s eating and drinking history by using reasonable assumptions based on average absorption and elimination rates. See supra, ¶ 43. Third, all of the assumptions used by Musselman, as well as the range of Defendant‘s BAC, were based on conservative estimates that erred in favor of Defendant, e.g., calculated a lower BAC for Defendant. See supra, ¶ 43.
¶ 59 Based upon our analysis of the relevant factors under
C. Rule 403 Balancing
¶ 60 The trial court determined that because Musselman‘s retrograde analysis was unreliable and inadmissible under
Conclusion
¶ 61 For the foregoing reasons, we grant relief and vacate the trial court‘s order precluding the State‘s expert from testifying that, based on his retrograde extrapolation, Defendant‘s blood alcohol concentration was above the legal limit within two hours of driving. In addition, the stay previously issued in this matter is vacated.
ANDREW W. GOULD
JUDGE
Diana GLAZER, the surviving spouse of Michael Glazer, deceased, on her own behalf and as statutory trustee for Lindsay Glazer and David Glazer, surviving children of Michael Glazer; Diana Glazer, as surviving parent of Sydney Glazer, deceased, Plaintiff/Appellee, v. STATE of Arizona, a government entity, Defendant/Appellant.
No. 1 CA-CV 12-0572
Court of Appeals of Arizona, Division 1
April 3, 2014
321 P.3d 470