ARENDT v. STIMSON

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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 DAVID ARENDT and DIANA ARENDT, a ) married couple, ) ) Plaintiffs/ Appellants, ) ) v. ) ) MELVIN STIMSON, a married man; ) CITY OF FLAGSTAFF, a municipal ) entity, ) ) Defendants/Appellees. ) ) DIVISION ONE FILED: 07/03/2012 RUTH A. WILLINGHAM, CLERK BY: sls No. 1 CA-CV 11-0734 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure Appeal from the Superior Court in Coconino County Cause No. S0300CV20080965 The Honorable Dan R. Slayton, Judge AFFIRMED Goldberg & Osborne By Lee M. Nation Attorneys for Plaintiffs/Appellants Prescott Mangum, Wall, Stoops & Warden, PLLC By Kenneth H. Brendel Attorneys for Defendants/Appellees Flagstaff J O H N S E N, Judge 1 ¶1 David and Diana Arendt appeal the judgment entered against them on their tort claims against Melvin Stimson and the City of Flagstaff. For the reasons that follow, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 David Arendt was injured in a traffic accident and sued the City and Stimson, a City employee. responsibility but disputed the severity The City accepted of injuries Arendt suffered in the accident. ¶3 The City retained Kerry Knapp, Ph.D., as an expert to testify about Arendt s injuries. After Knapp s deposition, the Arendts moved to preclude Knapp from testifying, contending he was not qualified as an concerning his education. claims he holds a expert and had not been honest The Arendts argued that while Knapp master s degree in biomechanics and a doctorate in forensic biomechanics, in fact his master s is in physical education studies. veracity The of examination. and City Knapp s his doctorate responded is that should testimony any be in interdisciplinary question about taken on up the cross- Asked at oral argument whether Northern Arizona University, which issued Knapp s master s degree, actually had a degree program in biomechanics, the City s counsel conceded that [o]ther than through the physical education, I have not been able to determine there was a Master s in biomechanics, rather it was through the physical education program. 2 ¶4 The court denied the motion, holding Knapp qualified as an expert under Arizona Rule of Evidence 702 on the basis of his knowledge, training or education. The court ruled, however, that Knapp could not testify to having an academic degree that does not exist: [T]he degree and the exhibit that [counsel] presented indicated he has a Master of Arts in physical education. . . . unless there is some sort of independent proof or evidence biomechanics, that I NAU am offered not a going Master to of allow Arts him to degree make in that statement. ¶5 At trial, Knapp testified the accident did not cause Arendt s injuries. On cross-examination, counsel for the Arendts grilled Knapp about his prior characterizations of his educational degrees. The jury returned a verdict in favor of Stimson and the City, from which the Arendts timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ( A.R.S. ) section 12-2101(A)(1) (West 2012). 1 DISCUSSION A. ¶6 The Court Did Not Err by Denying the Motion to Preclude. The Arendts first argue the superior court erred by not precluding Knapp s testimony because expert witnesses who 1 Absent material revisions after the relevant date, we cite a statute s current version. 3 are untruthful concerning their qualifications, not be permitted to testify in our system. should simply The Arendts contend that because Knapp was untruthful in his deposition regarding his education, he could not qualify as an expert witness under Arizona Rule of Evidence 702. ¶7 Arizona Rule of Evidence 702 provides: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. Ariz. R. Evid. 702. 2 Whether a witness is qualified to testify as an expert is a matter primarily for the superior court, and we review such determinations for an abuse of discretion. Englehart v. Jeep Corp., 122 Ariz. 256, 258, 594 P.2d 510, 512 (1979). ¶8 The Arendts offer no support for their contention that under Rule 702, prior dishonesty by an expert witness about his education bars him from testifying. The language of Rule 702 does not support their argument that untruthfulness of an expert witness as to his qualifications 2 should preclude his Arizona Rule of Evidence 702 was revised after the trial in this matter. See Order Amending the Arizona Rules of Evidence and Rule 17.4(f), Arizona Rules of Criminal Procedure, Ariz. Sup. Ct. No. R-10-0035, at 64 (Sept. 7, 2011). We refer to the version of the rule in effect at the time of the trial. 4 testimony. To the contrary, cross-examination is the appropriate tool for probing the truthfulness of a witness s statements and is the appropriate means of testing a qualified expert witness regarding his or her educational degrees. State v. Rivera, 210 Ariz. 188, 190, ¶ 11, 109 P.3d 83, 85 (2005); see also Lohmeier v. Hammer, 214 Ariz. 57, 65, ¶ 29, 148 P.3d 101, 109 (App. 2006) (after concluding an expert was qualified to testify, this court noted that the [opposing parties] had the opportunity to cross-examine [the doctor] about his lack of a medical degree ). ¶9 Nor did the superior court err by finding Knapp was qualified under Rule regarding medical 702 to testify as Knapp was causation. an expert hired to witness perform biomechanical analyses and present an opinion as to whether the accident caused Arendt s injuries. After hearing oral argument, the superior court concluded: The issue is the initial determination as to Dr. Knapp s knowledge, skill, experience, training, or education. The Court believes that the Trier of Fact is the best protection that our system has in determining the credibility and the weight to be provided to any witness testimony, expert or factual. That the issue regarding a degree is an issue which may raise questions of conduct, but in looking at the transcripts and what was provided, the Court finds that Dr. Knapp qualifies on the basis of the transcript s knowledge, training or education. 5 ¶10 Before allowing an expert witness to testify, the court must determine that the expert s testimony will assist the trier of fact on a particular issue. ¶ 27, 148 P.3d at 108. Lohmeier, 214 Ariz. at 64, It is not necessary that the expert have the highest possible qualifications or highest degree of skill or knowledge . . . to testify ; an expert may qualify based on his or her actual experience or study. Mesa, 168 Ariz. 552, 554, 815 P.2d 921, Lay v. City of 923 (alteration in original) (quotations omitted). (App. 1991) The strength of the expert s qualifications goes to the weight the jury may give to the expert s testimony, not its admissibility. State v. Davolt, 207 Ariz. 191, 210, ¶ 70, 84 P.3d 456, 475 (2004). ¶11 titles Although Knapp s postgraduate degrees did not bear the he claimed biomechanics and (his his master s doctorate of arts was not was not issued issued in in forensic biomechanics), it is undisputed that he had earned a master s of arts in physical education that included coursework in biomechanics and a doctorate in interdisciplinary studies with an area of concentration identified as forensic biomechanics. On direct examination, Knapp explained the science and practice of biomechanics and how he came to work in the field. He listed the courses he took in his master s program at NAU, including biomechanics, neuroscience, kinesiology, independent study work in biomechanics. 6 anatomy and other He stated that over 16 years, he had testified in Arizona, California and Louisiana and that of the 1,000 or so cases he had worked on, about 700 were motor vehicle education and accidents. Given experience, the his superior knowledge, court did training, not err in finding Knapp qualified as an expert witness in biomechanical causation. B. The Court Did Not Fail to Properly Enforce Its Pretrial Ruling at Trial. ¶12 The Arendts next argue the superior court erred by not enforcing its pretrial ruling that Knapp falsely about what degrees he held. could not testify Prior to trial, the court ruled that it was not going to allow [Knapp] to testify as to a degree that does not exist. The Arendts contend that nevertheless, during his trial testimony, Dr. Knapp would never actually and clearly state what his degrees numerous questions in cross examination. were in despite They assert they were prejudiced because they were not prepared to cross-examine Knapp on these issues, having anticipated at trial that the court would enter into this clarification of Dr. Knapp s qualifications. ¶13 On direct examination during trial, Knapp was asked about his educational background. degree in? Arendts In counsel my view my objected, He responded, What is my degree and 7 a is in bench , whereupon conference the ensued. Consistent with the court s direction after the bench conference, the City s lawyer then asked Knapp, The Master s degree you received from NAU in 1995, was from the Department of Physical Education, is that right? That is correct. Shortly after, To this, Knapp responded, still during the direct examination, the following exchange occurred: Q: And your Ph.D. that you received from Union Institute University, you received that in interdisciplinary studies? A: No. It is through the At this point, the Arendts counsel interrupted with another objection, and another conference, Knapp examination about was the bench not conference questioned academic field ensued. again in which After during his the direct doctorate degree was awarded. ¶14 On cross-examination, the Arendts counsel pursued the matter at some length: Q: Go ahead and your degree is in. tell us what you think A: There is nothing either on my degree or in my transcript that says that the degree is in anything. My transcript clearly identifies that the degree is through the Department of Physical Education, located in the College of Health Professions at Northern Arizona University. * * * Q: Now, let s go to Union Institute and University, what is your degree in there? 8 A: I have a Ph.D., the program was disciplinary studies, the characterization of my work is forensic biomechanics. On appeal, the Arendts assert that Knapp testified he had a Ph.D. in forensic biomechanics. The only statement Knapp made to that effect, however, came at a later point during crossexamination, when the Arendts counsel asked him, That is true, you have a Ph.D. in forensic biomechanics? , and Knapp responded, Not to quarrel with your semantics again, but yes, that is the way that I would characterize the work and the way that the education is documented on the transcript. ¶15 We discretion. direct conclude superior court did not abuse its At the bench conference following the exchange on examination Arendts the counsel about did Union not ask Institute the court and for University, a curative the jury instruction; nor did he ask the court to make any ruling on the record then examination. accurately or following On that the later cross-examination, his degrees were exchange during moreover, in Knapp physical cross- testified education and interdisciplinary studies, respectively. ¶16 Moreover, examined Knapp the about Arendts statements counsel he vigorously had made cross- during his deposition about his educational background. A trial witness can previously be impeached by a showing 9 that he has made statements inconsistent with his present testimony. State v. Caldwell, 117 Ariz. 464, 473, 573 P.2d 864, 873 (1977). While the Arendts may have been frustrated by Knapp s trial testimony, at no time did Knapp violate the superior court s order forbidding him from testifying he possessed degrees that he did not. ¶17 On the record presented, the court did not fail to properly enforce its pretrial ruling. CONCLUSION ¶18 For the reasons superior court s judgment. set forth above, we affirm the The City requests we award sanctions pursuant to Arizona Rule of Civil Procedure 68. We award the City its costs on appeal, conditioned on compliance with Arizona Rule of Civil Appellate Procedure 21. The City may apply to the superior court for any appropriate Rule 68 sanctions. /s/ DIANE M. JOHNSEN, Judge CONCURRING: /s/ JON W. THOMPSON, Acting Presiding Judge /s/ SAMUEL A. THUMMA, Judge 10

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