Arizona Case Law Update
Sanchez v. Gama 233 Ariz. 125, 128-131, 310 P.3d 1, 4-7 (Ct. App. 2013)
Sanchez v. Gama was a personal injury case arising out of a motor vehicle accident . The plaintiff disclosed a chiropractor, Dr. David Hobbs, as a witness to testify “consistently with [his] medical records regarding the injuries sustained by Plaintiff and related medical treatment.” The defendant subpoenaed Dr. Hobbs to testify in a deposition, but refused to pay expert witness fees. The arbitrator issued a ruling that the defendant had to pay Dr. Hobbs an expert witness fee of $300 per hour for his deposition testimony. The defendant sought special action relief with the Arizona Court of Appeals, which was granted.
On review, the Arizona Court of Appeals addressed the issue of whether a treating physician’s testimony concerning diagnosis, treatment, and prognosis is expert testimony because it draws upon his or her skill, training, and experience as a doctor. The Court held that Dr. Hobbs was not an expert witness because his testimony was based on personal observations independent of the litigation, was not given in response to hypothetical questions, and did not require him to review the records of another health care provider or to opine regarding another provider’s treatment or the standard of care. The Court further held that since Dr. Hobbs was not an expert witness, he was not entitled to the expert witness compensation provided for in Rule 26(b)(4)(C), Arizona Rules of Civil Procedure.
Metzler v. BCI Coca-Cola Bottling Co. of Los Angeles 235 Ariz. 141, 143, 329 P.3d 1043, 1045 (2014)
Metzler v. BCI Coca-Cola Bottling Co. of Los Angeles was a personal injury case arising from a slip and fall at a grocery store. The plaintiff made an offer of judgment to settle the case for $150,000.00, which the defendant rejected. The case went to trial and a jury returned a $1.5 million verdict for the plaintiff. The final judgment entered by the trial court was $1,855,398.86, which included $347,672.16 in prejudgment interest as a sanction against the defendant for not accepting the offer of judgment. After a series of appeals and remands, the plaintiff sought a total award of $2,135,867.03, which calculated the prejudgment interest at 10% based on it being interest on an obligation pursuant to A.R.S. § 44–1201(A). The defendant argued that the prejudgment interest should be calculated at 1% plus the prime rate, or 4.25% based on it being interest on a judgment under A.R.S. § 44–1201(B). The trial court agreed with the plaintiff and entered the judgment. The Court of Appeals affirmed the judgment and the Supreme Court of Arizona granted review.
The Supreme Court held that prejudgment interest awarded as a sanction pursuant to Arizona Rule of Civil Procedure 68(g) is “interest on a[ ] judgment” under § 44–1201(B), not interest on an “obligation” under A.R.S. § 44–1201(A). The Court reasoned that the phrase “obligation” in the statute referred to things of the same nature of a loan or indebtedness. Conversely, prejudgment interest, even when imposed as a sanction under Rule 68(g), is interest due “on” a judgment, because without the judgment there would not be the prejudgment interest. Therefore, the applicable prejudgment interest rate was 4.25%, not 10%.
Reyes v. Frank’s Serv. & Trucking, LLC, 235 Ariz. 605, 608, 334 P.3d 1264, 1267 (Ct. App. 2014)
This was a personal injury lawsuit arising out of a motor vehicle accident. Prior to trial, the defendant made an offer of judgment of $200,001.00, which was not accepted. The case proceeded to trial and a jury found the plaintiff’s damages to be $370,000.00. However, the jury found that the plaintiff was 49% at fault, thereby reducing his judgment award to $188,700.00. After the trial the plaintiff sought recovery of taxable costs exceeding $30,000.00. The trial court ruled that the plaintiff was entitled to recover $32,052.12 in taxable costs and denied the defendant’s request for Rule 68 sanctions. Both parties appealed and the Court of Appeals granted review to determine whether various litigation expenses were properly categorized as taxable costs.
The court held that deposition expenses which are reasonably and necessarily incurred are recoverable as taxable costs whether they are for an in-state or an out-of state deposition. The cost of an interpreter for a deponent was an incidental deposition expense which was also recoverable as a taxable cost. If a party incurs costs for both a video recording and a transcript of the same deposition, the trial court must determine the reasonableness and necessity of those expenses on a case-by-case-basis. The presumption is that the party can only recover costs for one or the other, but the trial court has discretion to award costs for both. No-show deposition costs are also incidental expenses which are recoverable as taxable costs. Mediation costs which the parties agreed to incur were properly awarded as taxable costs, even though the parties’ agreement was to share the costs.
Granville v. Howard No. 1 CA–CV 13–0370
This is a personal injury lawsuit arising out of a motor vehicle accident which was referred to compulsory arbitration because the amount in controversy did not exceed $50,000.00. The arbitrator awarded the plaintiff $6,719.45 for damages, costs, and Rule 68 sanctions. The defendant appealed and a trial in the superior court was held, where the jury found for the defendant. The superior court entered a judgment against the plaintiff for $17,885.50, which included taxable costs, Rule 68 sanctions, and expert witness fees. The plaintiff appealed and the Court of Appeals reversed the defense verdict and remanded for a new trial. After a second trial, the jury found awarded the plaintiff $918.50 in damages. The superior court then entered a judgment against the defendant for $86,656.40 for the jury award plus taxable costs, Rule 68 sanctions, expert witness fees, and attorneys’ fees. Both parties appealed challenging the amount of the attorneys’ fees award and the Court of Appeals granted review.
The court discussed the meaning of a “reasonable fee” and set out a list of considerations which are unique to fee awards in the context of an arbitration appeal. That list included: (1) whether the arbitration appeal was filed in good faith or was pursued to delay the proceedings, unduly burden the opposing party, or coerce capitulation based on superior financial resources; (2) how close the appealing party came to meeting the 23% standard; (3) the amount in controversy; (4) whether post-arbitration litigation could have been avoided or settled; (4) whether failure to improve on the arbitration award by the required percentage may be attributable to evidence introduced at the trial de novo of post-arbitration damages; (5) the amount of fees the requesting party is obligated to pay his or her lawyer; and (6) whether the requested fees were necessarily incurred or whether it appears that some fees were generated because of the prospect of a fee-shifting award under Rule 77(f). In this case, the court decided that it did not have sufficient information to make a reasonableness determination and remanded to the trial court. However, the court did hold that the plaintiff was not entitled to a fee award for any fees he incurred in his first appeal.
Fisher v. Edgerton 696 Ariz. Rep. 22 (App. Div. I, September 30, 2014)
This is a personal injury lawsuit arising out of a three car motor vehicle accident which was referred to compulsory arbitration because the amount in controversy did not exceed $50,000.00. The arbitrator found one of the two defendants, Fisher, to be 100% at fault and awarded the plaintiff $29,653.70 plus taxable costs against Fisher. Fisher appealed to the trial court naming both the plaintiff and Edgerton, and a jury trial was held. The jury awarded $20,000.00 to plaintiff against Fisher. The superior court awarded Edgerton nearly $16,000.00 against Fisher for attorneys’ fees, expert witness fees, and taxable costs. Fisher appealed and the Court of Appeals granted review.
The Court of Appeals held that the fee award for Edgerton was proper, even though Fisher could only statutorily appeal the entire arbitration award, including the arbitrator’s finding that Edgerton was not liable. The Court reasoned that Edgerton was the prevailing party as to liability given that at trial Fisher actively and unsuccessfully attempted to shift fault to Edgerton. The Court also rejected a variety of constitutional challenges to the compulsory arbitration statute.
Felipe v. Theme 694 Ariz. Adv. Rep. 14 (App. Div. I, August 28, 2014)
This was a personal injury and wrongful death action arising out of a motor vehicle accident where a delivery truck collided with a Chevrolet Blazer killing one passenger and injuring three passengers. At trial, plaintiffs called the investigating police officer who testified about the accident scene, the weather and road conditions on the day of the collision, types of accident reconstruction methods, the method he used in his reconstruction, and the speeds of the vehicles when they collided. Several days later the court ruled that the police officer’s testimony was expert reconstruction testimony, and the plaintiffs’ accident reconstruction expert could not present further testimony on a variety of topics that were addressed in the police officer’s testimony. The jury returned a defense verdict, and the plaintiffs appealed asserting that trial court erred by limiting the scope of their accident reconstruction expert’s testimony.
Although the court held that based on the scope of his testimony, the police officer was an expert witness, it further held that the officer was not an “independent expert” under Rule 26(b)(4)(D). The court held that an “independent expert” is a person who is retained for the purpose of offering expert opinion testimony. Because the officer was not retained by the plaintiffs, he was not the plaintiffs’ independent, retained expert on accident reconstruction.
ABOUT THE AUTHOR: Lena Pond is a graduate of the Sandra Day O’Connor College of Law at Arizona State University. She specializes in insurance defense, insurance coverage disputes, insurance bad faith, professional liability, and general civil litigation. Contact her at 602-386-5654 or firstname.lastname@example.org.
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