Felipe v. Theme Tech Corp. – 8/28/2014

October 13, 2014

Arizona Court of Appeals Division One Holds That an “Independent Expert” Under Arizona Rule of Civil Procedure 26(b)(4)(D) Means a Person Retained for the Purpose of Offering Expert Opinion Testimony.

Plaintiffs’ suit against Defendants arose from a collision between Plaintiffs’ vehicle and a truck driven by Theme Tech Corporation’s employee.  During trial, Plaintiffs offered testimony by the responding officer regarding the evidence at the accident scene, as well as the officer’s opinion regarding accident reconstruction and the probable speed of the two vehicles involved.  Defendants argued that this testimony constitutes Plaintiffs’ expert testimony under Ariz. R. Civ. P. 26(b)(4)(D), and when Plaintiffs introduced a crash reconstruction expert, the trial court limited his testimony to issues not addressed by the officer.  After trial, Plaintiffs appealed that decision. 

The Court of Appeals held that while the officer did provide expert testimony—because he testified to more than his observations at the scene—he was not Plaintiffs’ “independent expert” under Rule 26(b)(4)(D).  Noting that there is no clear guidance regarding “independent experts” under the Rule, and that the term is ambiguous, the Court adopted the definition set forth in the Committee Comment to the 1991 Amendment to the Rule which states that an “independent expert” is “a person who is retained for the purpose of offering expert opinion testimony.”  Thus, while the officer did provide expert testimony, because he was not retained as an expert, he was not Plaintiffs’ “independent expert.”  The Court also addressed Defendants’ arguments that the trial court properly limited the reconstruction expert because he only provided cumulative evidence.  Because the expert’s testimony differed in method and conclusion from the officer, the evidence was not cumulative. 

Finally, although remand was necessary based on the Court’s holding regarding Rule 26(b)(4)(D), the Court affirmed the trial court’s ruling precluding Plaintiffs’ expert testimony that Defendants’ employee was using his cell phone at the time of the crash.  The Court explained that because Plaintiffs’ evidence was neither reasonably possible nor persuasive, the trial court did not abuse its discretion in concluding that Plaintiffs’ expert testimony would be speculative and violate Evidence Rule 402, Rule 403, or both.  And because Plaintiffs’ punitive damage claim arose from their theory regarding cell phone use, the Court upheld the trial court’s ruling granting Defendants’ motion for summary judgment on that issue. 

Presiding Judge Gemmill authored the opinion; Judges Swan and Orozco concurred.