Steven v. Swift

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE JEANNE M. STEVEN, individually and on behalf of THOMAS J. STEVEN, II, MCRAE M. STEVEN, ZACHARY A. STEVEN, NATHAN J. STEVEN, ANNIE-MARIE STEVEN, ALISE M. STEVEN, AMY L. STEVEN, JACOB M. STEVEN, JOSEPH P. STEVEN, and ESTHER S. STEVEN; GLENNN P. STEVEN, individually; and JACOB M. STEVEN, individually, ) ) ) ) ) ) ) ) ) ) ) ) Plaintiffs/Appellees, ) ) v. ) ) SWIFT TRANSPORTATION COMPANY, ) INC., an Arizona corporation, ) ) Defendant/Appellant. ) __________________________________) DIVISION ONE FILED: 09/23/2010 RUTH WILLINGHAM, ACTING CLERK BY: GH No. 1 CA-CV 08-0505 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. CV 2004-013847 The Honorable Richard J. Trujillo, Judge (Retired) AFFIRMED IN PART; REVERSED IN PART; REMANDED Law Office of Scott E. Boehm, P.C. By Scott E. Boehm Phoenix Copple & Copple, P.C. By Steven D. Copple S. Christopher Copple Attorneys for Plaintiffs/Appellees Phoenix Paul G. Ulrich, P.C. By Paul G. Ulrich Melinda K. Cekander Phoenix Renaud, Cook, Drury & Mesaros, P.A. By Steven G. Mesaros Christine J. Reid-Moore Attorneys for Defendant/Appellant Phoenix D O W N I E, Judge ¶1 Swift Transportation Company, Inc. appeals from the verdicts and judgment entered in favor of members of the Steven family (collectively, plaintiffs ) on their claims for wrongful death and personal injuries. For the following reasons, we affirm in part, reverse in part, and remand for a new trial. FACTS & PROCEDURAL HISTORY ¶2 On April 4, 2004, Swift employee Kevin Jones was driving an eighteen-wheel tractor-trailer rig in Kansas when he ran a stop sign and struck a vehicle driven by Thomas Steven ( Thomas ). Thomas was killed instantly. His son, Jacob, and his nephew, Glenn, were seriously injured. ¶3 Thomas s widow and eight children sued wrongful death in Maricopa County Superior Court. Swift for Jacob and Glenn also brought claims for personal injuries sustained in the accident. Before trial, Swift admitted that Jones was negligent in causing the accident and that he was acting in the course and scope of his employment for Swift. 2 ¶4 Trial began on October 30, 2007. The jury returned verdicts on November 30 as follows: (1) Glenn Steven was awarded $67,395.50 for hospital, $3,500,000 for non-economic injury claim; 1 (2) Jacob doctor, loss Steven and medical arising was from awarded expenses his and personal $182,852.97 for hospital, doctor, and medical expenses and $1,944,000 for noneconomic loss for his personal injury claim; 2 (3) Jeanne Steven (Thomas s wife) was awarded $10,027,999 for economic loss and $4000 for funeral and burial expenses; and (4) each of the eight Steven children received an award of $1,000,000 for economic loss. 3 The jury awarded $13,875,000 in punitive damages against Swift and found no comparative fault attributable to Thomas. ¶5 After the trial court denied Swift s renewed motion for judgment as a matter of law ( JMOL ) and its motion for new trial, pursuant this to timely Arizona appeal Revised followed. Statutes We have ( A.R.S. ) jurisdiction section 12- 120.21(A)(1) (2003) and -2101(B)(F)(1) (2003). 1 Because Kansas law governed Glenn s personal injury claim, his non-economic damages were capped at $250,000. He was awarded $310,395.50 in the final judgment. Plaintiffs have not challenged this amount, though it appears to be less than the total of Glenn s economic and statutorily capped non-economic losses ($67,395.50 + $250,000 = $317,395.50). 2 Applying Kansas damage caps to Jacob s injury claims resulted in a judgment amount of $432,852.97 ($182,852.97 + $250,000). 3 Under Kansas law, Thomas s parents, Joseph and Esther Steven, were not entitled to compensatory damages, and the final judgment dismissed them as plaintiffs. 3 DISCUSSION ¶6 Swift has identified the following issues for our review: 1. Whether the trial court erred by applying Arizona law to the request for punitive damages. 2. Whether the court erred in its rulings regarding plaintiffs negligent retention claim. 3. Whether the jury should have been allowed to consider punitive damages. 4. Whether the court erred by giving an adverse inference jury instruction or in admitting evidence about spoliation and discovery-related matters. 5. Whether the wrongful death compensatory damage awards should be set aside based on legal error or insufficiency of the evidence. 4 6. Whether the trial court erred by allowing plaintiffs expert to opine about the ultimate issue regarding punitive damages. 7. Whether the court improperly excluded evidence about the accident history and redesign of the roadway. 8. Whether the verdicts 4 should be set aside due to Swift is not appealing the damage awards to Glenn and Jacob on their personal injury claims. 4 passion and prejudice. 1. Punitive Damages ¶7 would Before trial, Swift sought a ruling that Kansas law apply Kansas caps to all of personal plaintiffs injury and claims. wrongful Unlike death Arizona, non-economic damages. Kan. Stat. Ann. ( K.S.A. ) §§ 60-1901 (1963), -1903(a) (1998). As we discuss in more depth infra, Kansas also limits an employer s liability for punitive damages. ¶8 The trial court ruled that Kansas law would apply to plaintiffs compensatory damage claims, but Arizona law would govern punitive damages, reasoning: [U]nder the facts of this case, to allow the Plaintiffs [sic] to benefit from the more liberal Arizona laws on compensatory damages would simply foster and promote forum shopping as argued by the Defendant Corporation in its reply. On the other hand, the State having primary and paramount interest in ensuring the safe operation of the commercial trucks emanating from the State of Arizona, i.e., requiring full compliance with the state and federal safety laws, is the State of Arizona. Further, it is in this State s responsibility to protect innocent victims, wherever they may reside, from the kind of conduct which would support a punitive damages award, as alleged in this case. ¶9 During oral argument before this court, Swift clarified that its challenge to the punitive damage award is based solely on constitutional grounds and not on choice of law 5 principles, such as those found in the Restatement (Second) of Conflict of Laws (1971). 5 Constitutional claims raise questions of law that we review de novo. Chaurasia v. Gen. Motors Corp., 212 Ariz. 18, 28, ¶ 35, 126 P.3d 165, 175 (App. 2006). ¶10 According to Swift, once the trial court directed a verdict against plaintiffs on their negligent retention claim, it was constitutionally impermissible to apply Arizona law to punitive damages. To place this issue in perspective, we first examine the nature and evolution of plaintiffs claims. ¶11 Plaintiffs originally alleged two liability theories against Swift: (1) respondeat superior liability based on Jones s conduct; and (2) direct liability for Swift s own acts and omissions in hiring, retaining and promoting Jones despite an on-going history of serious legal violations. plaintiffs withdrew their negligent hiring Before trial, claim, proceeded to trial on the negligent retention theory. but they At the close of plaintiffs case-in-chief, Swift moved for JMOL on the negligent retention claim. The court granted that motion. 6 Swift then renewed its argument that Kansas law should apply to punitive damages. The trial court again disagreed. 5 Although we confine our analysis to the constitutional arguments framed by Swift, we note that application of the choice of law principles found in Restatement (Second) of Conflict of Laws §§ 6, 145, 171, and 178 would also favor Kansas law. 6 Plaintiffs have not appealed the dismissal of their negligent retention claim. 6 ¶12 sole Once the negligent retention claim was dismissed, the remaining nature. 129, for Swift s liability was vicarious in See Warner v. Sw. Desert Images, LLC, 218 Ariz. 121, 131, ¶¶ (respondeat based basis on 17 & superior the 27, 180 P.3d liability employee s is actions, 986, 994, 996 vicarious not the (App. liability; 2008) it employer s). is With vicarious liability, only the principal s relationship to the tortfeasor itself. is relevant, not the negligence of the principal Id. at 129, ¶ 17, 180 P.3d at 994; see also Wiggs v. City of Phoenix, 198 Ariz. 367, 371, ¶ 13, 10 P.3d 625, 629 (2000) ( [T]hose whose liability is only vicarious are fault free - someone else s fault is imputed to them by operation of law. ); 2 Dan B. Dobbs, The Law of Torts, § 333, at 906 (2001) ( Vicarious fault. liability is not based upon the defendant s own Rather, it is based upon the principle that he must stand good for the wrong of another person. ). ¶13 By the punitive damages Kansas. We agree with Swift that Arizona may not punish that extra-territorial time could this only conduct case was be based through submitted on to Jones s application of the jury, conduct its law in on punitive damages. ¶14 Punitive damages may properly be imposed to further a State s legitimate interests in punishing unlawful conduct and deterring its repetition. BMW of N. Am., Inc. v. Gore, 517 7 U.S. 559, 568 (1996). Compensation of an injured plaintiff is primarily of a domiciled. concern the state in which plaintiff is Bryant v. Silverman, 146 Ariz. 41, 45, 703 P.2d 1190, 1194 (1985). ¶15 In BMW, the plaintiff purchased a new BMW that had been damaged and repainted without disclosure, in violation of Alabama law. 517 U.S. at 563-64. compensatory damages and A jury awarded Gore $4000 in $4,000,000 (later reduced to $2,000,000) in punitive damages for fraud. Id. at 565, 567. Noting disclosure that other states did not mandate under similar circumstances, the Court held that Alabama could not punish BMW for out-of-state conduct that was lawful where it occurred and that had no impact on Alabama or its residents. Id. at 573. The Court declined to address whether one State may properly attempt to change a tortfeasor s unlawful conduct in another State. 7 ¶16 The Court Id. at 574 n.20. revisited this unresolved issue in State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003). In that case, a jury awarded the plaintiff $2.6 million (later reduced to $1 million) in compensatory damages and $145 million (later reduced to $25 million) in punitive damages based on the defendant s nationwide practice 7 of limiting insurance Swift does not contend that Jones s tortious conduct was lawful in Kansas, Arizona, or any other state. 8 pay-outs. Id. at 415. In striking down the punitive damage award, the Court noted the general rule that a State does not have a legitimate concern in imposing punitive damages to punish a defendant for unlawful acts committed outside of the State s jurisdiction. Id. at 421 (emphasis added). The Court explained that a central tenet of federalism is that each State alone can determine what measure of punishment, if any, impose on a defendant who acts within its jurisdiction. to Id. at 422. ¶17 Even before State Farm clarified the issue, courts were reading BMW as prohibiting punitive damages based on extraterritorial tortious conduct. Inc. v. OKY USA Inc., 101 In Continental Trend Resources, F.3d 634 (10th Cir. 1996), for example, the Tenth Circuit stated: First, the punitive damages award must relate to conduct occurring within the state here, Oklahoma. A state may not sanction a tortfeasor with the intent of changing the tortfeasor s lawful conduct in other States. Thus, any penalty must be supported by Oklahoma s interest in protecting its own consumers and its own economy. Of course, unlike in BMW, OXY s conduct in the case before us would be tortious in any state. The BMW Court goes on to state that it need not consider whether one State may properly attempt to change a tortfeasor s unlawful conduct in another State. Despite this comment we read the opinion to prohibit reliance upon inhibiting unlawful conduct in other states. Id. at 636-37 (citations omitted); see also White v. Ford Motor 9 Co., 312 F.3d 998, 1017 (9th Cir. 2002) ( The logic and language of BMW suggest that if the Court were to consider whether one State may properly attempt to change a tortfeasor s unlawful conduct in another state, the answer would have to be No. ). ¶18 Not surprisingly, after the decision in State Farm, more courts have specifically held that states may not punish extraterritorial tortious conduct. In Sand Hill Energy, Inc. v. Smith, 142 S.W.3d 153 (Ky. 2004), the court vacated a punitive damage award, in part because the jury instructions failed to include a punishment. limiting Id. at instruction 156. On concerning remand, the extraterritorial trial court was directed to give an instruction providing for a safeguard from extraterritorial punishment. Id. at 166. The Kentucky Supreme Court suggested the following language: Evidence of Ford Motor Company s conduct occurring outside Kentucky may be considered only in determining whether Ford Motor Company s conduct occurring in Kentucky was reprehensible, and if so, the degree of reprehensibility. However, you must not use out-of-state evidence to award the [plaintiff] punitive damages against Ford Motor Company for conduct that occurred outside Kentucky. Id. at 167; see also Hampton v. Dillard Dep t Stores, Inc., 18 F. Supp. 2d 1256, 1276 (D. Kan. 1998) (A punitive damage award must relate to conduct occurring within the state. ); Sheila B. Scheuerman and Anthony J. Franze, Instructing Juries on Punitive 10 Damages: Due Process Revisited After Philip Morris v. Williams, 10 U Pa. J. Const. L. 1147, 1192-95 (noting that, after State Farm, many jurisdictions have added extra-territorial limitations to their punitive damage instructions). ¶19 In the case at bar, plaintiffs injuries and damages occurred in Kansas. residents. is Neither Jones nor plaintiffs are Arizona Swift is an Arizona corporation, but its residency incidental when, as here, liability is purely vicarious. Perhaps most importantly, Arizona and Kansas have significantly different policies regarding the recovery of damages. does not conduct impose unless liability the on employer authorized such conduct. an employer has for specifically an Kansas employee s ratified or See K.S.A. § 60-3702(d)(1) (1992). Kansas also limits the amount of punitive damages that may be awarded against an employer. K.S.A. § 60-3702(e) and (f). Arizona has no such employer protections. ¶20 The policy differences between Arizona and Kansas are legally significant. In White, the court vacated a punitive damage award based on nationwide consumer fraud perpetrated by Ford 312 F.3d at 1020. punitive damages, thus It noted that states like Alaska cap adopting friendlier to innovation. a less Id. at 1018. risk-averse approach By imposing Nevada law, particularly when the conduct had no impact on the state or its residents, the jury effectively supplanted Alaska s policy 11 choices in violation of its sovereignty. Relying on BMW, the court stated: The Court in BMW imposed a territorial limitation on punitive damages in the interest of federalism. This federalism includes the flexibility for a state to have whatever policy it chooses, subject to constitutional and congressional limits. For that flexibility to exist, no state can be permitted to impose its policies on other states. Id. at 1013. ¶21 Once plaintiffs negligent retention count was dismissed, Swift could only be vicariously liable for Jones s conduct. punish. There The was trial no conduct court should plaintiffs punitive damage claim. occurring have within applied Arizona Kansas law to to We thus vacate the punitive damage award. 2. ¶22 Motion for JMOL Regarding Punitive Damages Swift argues that the trial court erred by denying its motion for JMOL regarding punitive damages. Because we vacate the award of punitive damages and find that Kansas law governs, we need Based on not the address record Arizona and the law regarding briefing punitive before us, damages. we cannot determine whether the evidence would be sufficient to permit consideration of punitive damages under Kansas law. must be addressed on remand. 12 That issue 3. ¶23 Expert Testimony Regarding Punitive Damages We plaintiffs also need trucking not resolve expert, Swift s Matthew contention Meyerhoff, that offered inappropriate opinions regarding the ultimate issue relevant to punitive damages. remand. merely This precise issue is unlikely to recur on The parties agree on the proper legal standard. disagree on its application and whether, in They context, Meyerhoff s testimony went too far. 8 4. ¶24 Negligent Retention, and Spoliation Adverse Inference Instruction, Swift contends that the trial court erred in admitting spoliation evidence 9 and in instruction. Swift also irreversibly prejudiced by giving an adverse inference jury argues admission it of was unfairly extensive and evidence relating solely to plaintiffs negligent retention claim. We discuss these contentions together. 10 8 It is arguable that the challenged testimony related to the severity of Jones s conduct with regard to Swift s disciplinary policies, not Jones s mental state in running the stop sign. 9 Spoliation is defined as [t]he intentional destruction of evidence. . . . The destruction, or the significant and meaningful alteration of a document or instrument. Smyser v. City of Peoria, 215 Ariz. 428, 438 n.11, ¶ 32, 160 P.3d 1186, 1196 n.11 (App. 2007) (quoting Black s Law Dictionary 1257 (6th ed. 1990)). 10 The record does not support Swift s claim that it was deprived of a pretrial ruling on its motion for partial summary judgment regarding negligent retention. Swift filed a Motion for Partial Summary Judgment Re Negligent Retention on July 18, 2007. At the final pretrial management conference on October 29, 2007, the court heard argument on this motion (and others). 13 ¶25 Much of plaintiffs case-in-chief related to negligent retention and spoliation. The spoliation issue arose because Swift was able to produce Jones s driving logs for only four days--April 1, 2, 3, and 4, 2004. Swift could not locate earlier logs. ¶26 Meyerhoff testified during three of the thirteen trial days when about evidence Jones s including 2001. his was presented. history with Swift log hour of Meyerhoff and also He dating service discussed testified back to extensively June violations Swift s failure since to certain log violations in federally mandated reports. 2001, July include He told the jury about citations issued to Jones beginning in 2001 and disciplinary actions Swift imposed against him over the years. Meyerhoff further testified regarding Swift s duty to maintain logs for six months and monthly hours of service reports and certain back-up information for at least three years. Meyerhoff opined that Swift should have terminated Jones in November 2001. He also testified that Swift failed to follow its own disciplinary policies regarding Jones. ¶27 As we have previously discussed, the court directed a It took the matter under advisement. In a minute entry dated October 30, the court denied Swift s motion. Although plaintiffs had suggested that any ruling be deferred until the court has [the] opportunity to hear the evidence during trial, the trial court clearly denied the motion. 14 verdict against plaintiffs on their negligent retention claim. At the time the final jury instructions were given, Swift had conceded that Jones was negligent, that he caused the accident, and that Swift was legally responsible for his actions. ¶28 The missing logs and faulty relevant to compensatory damages. documentation were not Plaintiffs punitive damage theory was that Jones either intentionally ran the stop sign or that he was fatigued from driving too many hours, in violation of federal safety regulations. records were necessary to They claimed that the missing establish fatigue. According to plaintiffs, If the examination [of the missing records] showed Jones was driving in excess of the 11/14/70 rules at the time of the collision . . . then the jury could have inferred he was too fatigued and satisfied the Arizona standard for punitive damages. ¶29 Even under plaintiffs theory, once the negligent retention claim was dismissed, only documentation pre-dating the accident by eight days would be relevant. 11 Meyerhoff testified about significantly As we have noted, more because the negligent retention claim was still viable at the time of his testimony. Before deliberations, the court gave the jury an adverse inference instruction, stating: 11 Meyerhoff testified that, to determine whether Jones violated the 70-hour rule, it would be necessary to review eight consecutive days of logs. 15 If you conclude that Swift Transportation lost, concealed, destroyed or failed to preserve evidence, you may infer that the evidence lost, concealed, destroyed or not preserved was adverse to Swift Transportation. You may not award separate damages for that loss of, concealment of, destruction of or failure to preserve evidence. ¶30 eight Assuming arguendo that the missing driver logs for the days preceding the accident were relevant to punitive damages (i.e., to support plaintiffs theory of driver fatigue), the trial court did not advise the jury it could only draw adverse inferences as to those limited documents and only in conjunction with punitive damages. The instruction as given could have led reasonable jurors to conclude they could consider all evidence of missing records and Swift s failure to preserve documents for virtually any purpose, other than the imposition of separate damages. See State v. Sierra-Cervantes, 201 Ariz. 459, 462, ¶ 16, 37 P.3d 432, 435 (App. 2001) (holding that when a party language alleges error of instructions reasonable the juror in could jury have instructions, from the construed we consider perspective them). The of the how a curative instruction regarding negligent retention did not sufficiently clarify matters. It read: Negligent Retention At the beginning of this trial, you were instructed that the issues for you to decide included whether defendant Swift negligently 16 retained its driver, Kevin Jones. During the course of this trial, you have heard evidence on whether Swift should have fired him before the accident. I have dismissed the plaintiffs claim of negligent retention of Kevin Jones [sic] Do not concern yourselves with the reason for my ruling on this issue. However, in light of my ruling, I am instructing you to disregard evidence as it pertains to the retention of Kevin Jones as a driver. The jury was not given any guidance as to what evidence or categories of evidence pertain[ed] to the retention of Kevin Jones as a driver. ¶31 The likelihood of juror confusion was compounded by plaintiffs closing argument. See State v. Bruggeman, 161 Ariz. 508, 510, 779 P.2d 823, 825 (App. 1989) (closing arguments of counsel may be taken into account when assessing the adequacy of jury instructions). been dismissed, Although the negligent retention claim had during closing argument, plaintiffs discussed federal regulations requiring Swift to keep driver logs on a rolling basis for six months, the fact that these missing logs would have enabled plaintiffs to determine if there s a pattern of practice [sic] of violating hours of service, Swift s duty to audit driver logs, Swift intentionally suspend[ing] their obligation to Administration comply with regulations Federal regarding 17 Motor logs, Carrier and Swift s Safety non- compliance in monitoring Jones s logs. 12 ¶32 We recognize that the amount of damages is a question particularly within the province of the jury. Frontier Motors, Inc. v. Horrall, 17 Ariz. App. 198, 200, 496 P.2d 624, 626 (1972). [A] jury s verdict ought not to be vacated or the amount thereof reduced except for the most cogent reasons. rule here and elsewhere is that the verdict will be The left undisturbed if reasonably supported by the evidence, when the trial is free from error. Young Candy & Tobacco Co. v. Montoya, 91 Ariz. 363, 370, 372 P.2d 703, 707 (1962) (quoting Ross v. Clark, 35 Ariz. 60, 67, 274 P. 639, 641 (1929) (emphasis added)). Considered together, however, the adverse inference instruction, the extensive evidence relevant only to negligent retention, the last-minute withdrawal of the non-economic damage claims, the incorrect verdict form (see discussion infra ¶ 34), and plaintiffs closing arguments give rise to great uncertainty about whether the jury realistically could have understood what it could and could not consider in determining compensatory damages. 13 12 Although the court instructed the jury that closing arguments by counsel were not evidence, plaintiffs arguments exacerbated the potential for confusion over exactly what the jury could and could not consider. 13 We have not addressed the spoliation evidence in depth. At the new trial, there will be no negligent retention claim. Most of the spoliation evidence related to that issue. We do not, however, foreclose the possibility that some spoliation 18 ¶33 Even Herculean properly efforts by instructed, jurors to it would have required the evidence compartmentalize they could consider for certain purposes and to ignore literally days of testimony about now-irrelevant matters. In such a case, we cannot simply revert to the appellate mantra that we presume jurors follow their instructions. Cf. Bruton v. United States, 391 U.S. 123, 135 (1968) (noting that the practical and human limitations of the jury system cannot be ignored ). strong likelihood consideration of exists the that wrongful trial death errors Because a fatally compensatory infected damages, we vacate those awards as well. 14 evidence may be admissible under Kansas law. We also have not addressed Swift s claim that the court erred in admitting evidence about discovery matters. If admissible, such evidence would relate solely to punitive damages, and Kansas law on this issue has not been briefed. 14 After the close of evidence, the wrongful death plaintiffs withdrew their claims for non-economic damages. Swift objected because extensive evidence (including testimony by twelve family members) had been introduced about the relationships between Thomas and the plaintiffs, including their grief and pain over his loss. During closing argument, plaintiffs counsel told the jury, Jeanne and her children have made a decision in this case, and they ve asked and authorized me to tell you that you don t have to put anything on the line for their pain, sorrow, grief for the loss of Tom. . . . Trying to fathom that pain and deal with it and come to a figure, they re not going to ask you to do that. The jury awarded $0 to the wrongful death plaintiffs for non-economic damages and wrote on the verdict form, see jury note, which stated, In the matter of non-economic loss of Jeanne Steven and the children, we the jurors have chosen to honor the wishes of Jeanne Steven and family. Standing alone, we might conclude the court s admonition that the jury not be influenced by sympathy was adequate. However, in assessing 19 5. Other Compensatory Damage Issues ¶34 We agree with Swift that the verdict form used for the wrongful death claims did not comply with Kansas law. Pursuant to K.S.A. § 60-1905 (1963), the jury in a wrongful death case may award only a net damage amount. The trial judge then apportions those damages after a hearing in proportion to the loss sustained by each of the heirs. 15 ¶35 As for damages, Swift the wrongful challenges, inter Thomas s work-life expectancy. was fifty-seven years old. Id. death plaintiffs alia, calculations economic based on At the time of his death, Thomas Scott Stuart, plaintiffs expert, presented a chart of Thomas s Lost Earnings Capacity through age 80. age 80. Stuart did not testify that Thomas would work until Rather, he presented the chart to give the jury various scenarios for lost income based on its determination of Thomas s likely retirement age. Swift also argues that Stuart improperly included received loans Thomas from his company as income, despite the fact that those loans were repaid. all of the circumstances bearing on the compensatory damage award, we have considered this factor. We recognize that Kansas defines economic damages more broadly than Arizona and includes categories such as loss of services, attention, marital care, parental care, advice, counsel, and protection. 15 As with the last minute waiver of non-economic damages, this issue, standing alone, might not warrant setting aside the damage awards. We cannot know whether a jury that renders a net damage award for nine beneficiaries is likely to award less than a jury that apportions damages among the claimants, as Swift seems to suggest. 20 ¶36 We review the admission of expert testimony for an abuse of discretion. State v. Hummer, 184 Ariz. 603, 607, 911 P.2d 609, 613 (App. 1995). The alleged deficiencies in Stuart s testimony might affect its weight, but not its admissibility. See, e.g., Logerquist v. McVey, 196 Ariz. 470, 489-90, ¶ 58, 1 P.3d 113, 132-33 (2000) ( [V]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence. ). discretion. We find no abuse of Stuart testified that he complied with recognized nationwide standard accounting, financial, economic and business principles. Swift cross-examined Stuart and presented its own economic expert. The jury was properly instructed about how to evaluate expert testimony, including its ability to accept it or reject it, in whole or in part, and [to] give it as much weight as you qualifications think and it deserves, experience, considering the reasons the given witness for the opinions, and all other evidence in the case. ¶37 We also find no reversible error based on plaintiffs closing argument services. about the value of Thomas s lost household Lawyers have wide latitude in closing argument to comment on the evidence and to argue all reasonable inferences from it. 1119, 1160 State v. Moody, 208 Ariz. 424, 465, ¶ 180, 94 P.3d (2004). Perhaps some 21 of the damage calculations pressed the outer bounds of reasonable inferences, but their admission does not constitute reversible error. 6. ¶38 Evidence of Accident History and Roadway Redesign Swift contends that the trial court erred in precluding evidence about the accident history and redesign of the intersection where the collision occurred. Swift sought to introduce such evidence to show that Jones did not intentionally run the stop sign because other drivers had also failed to stop at that same intersection. ¶39 A trial determining court relevancy and has considerable admissibility of discretion evidence. City in of Phoenix v. Boggs, 1 Ariz. App. 370, 373, 403 P.2d 305, 308 (1965). The trial court's ruling on the admission or preclusion of evidence will be affirmed, absent a clear abuse of discretion and a showing of prejudice. Catchings v. City of Glendale, 154 Ariz. 420, 426, 743 P.2d 400, 406 (App. 1987). ¶40 We find no abuse of discretion. The trial court granted plaintiffs motion in limine to preclude evidence of accident history and redesign, though it stated it would revisit the issue if Swift laid sufficient foundation for such evidence at trial. The record supports plaintiffs contention that Swift failed to do so. ¶41 collisions Swift were did not factually demonstrate similar 22 that and any recent of in the time. prior It appears that involved a none involved northbound a vehicle tractor-trailer (the traveling) running the same stop sign. rig, direction and Jones few was There was no evidence (including from Jones) that the intersection was dangerous or that its design caused the collision. 16 Finally, we are not persuaded that plaintiffs opened the door to such evidence. 7. ¶42 Forum Non Conveniens Because we are ordering a new trial, Swift asks us to require plaintiffs to refile their claims in Kansas. to do so. We decline Our ruling, though, is without prejudice to Swift s ability to file a renewed motion in the superior court based on forum non conveniens. CONCLUSION ¶43 For the reasons stated, we affirm the personal injury verdicts and judgment issued in favor of Glenn Steven and Jacob Steven. We further affirm the jury s determination that Jones was solely responsible for the accident. 16 We reverse both the In a trial memorandum, Swift stated that a Kansas sergeant had testified this intersection is one of three or four bad intersections we have. There was, however, no offer of proof made on this point. 23 compensatory and punitive damage awards on the wrongful death claims and remand for further proceedings consistent with this decision. /s/ MARGARET H. DOWNIE, Judge CONCURRING: /s/ ANN A. SCOTT TIMMER, Chief Judge /s/ SHELDON H. WEISBERG, Judge 24

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