James F. Mahoney, Attorney

January 2012

2011 Arizona Litigation News and Appellate Highlights

A summary of Arizona evidence rules relevant to the trucking industry have
been amended effective January 1, 2012

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  • Rule 409 is clarified so that offers to pay medical and similar expenses caused by an injury are not admissible to prove liability for the injury.

  • Evidence Rule 702 adopts the standard in Federal Rule of Evidence 702, as restyled, which follows the opinion in Daubert vs. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). The new Arizona rule recognizes that trial judges should serve as gatekeepers in assuring that proposed expert testimony is reliable and thus helpful to the jury’s determination of facts at issue.

Be wary if your lawyer wants to file Daubert motions against your adversary. The motions may very well be a waste of time and your money.

The rule change will not mean much to us in the trenches of injury litigation. An early flurry of Daubert motions challenging the admissibility of expert witness testimony will not change, particularly in injury cases, plaintiffs’ and defendants’ standard-type experts on medical and other forensic topics. The trial courts should continue to rule much same as before, with no discernible change to the admissibility of expert opinion in the majority of litigated matters.

  • Diminished Value of Automobiles. A sale or transfer is not necessary to establish a claim of diminished value of a motor vehicle. A plaintiff can use an appraisal or expert report. Oliver v. Henry.

  • Respondeat Superior. Employers are not always liable for employee torts committed on out-of-town assignments. Engler v. Gulf Interstate Engineering.

  • Displacing Fault Using Your Adversary’s Own Evidence. Allegations of a “non-party at fault” can sometimes be established with the adverse party’s expert reports. Ryan v. San Francisco Peaks Trucking.

  • Unemployment by Voluntary Quit. Although an employee who voluntarily separates from employment is generally ineligible for UIB benefits, the ADES must determine whether the separation was really a “quit” or a “discharge,” when there’s no evidence the employee really quit. Figueroa v. Arizona Dept. of Economic Security.