Mendoza v. State

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

MARY ANN MENDOZA, Plaintiff/Appellant,

v.

STATE OF ARIZONA, Defendant/Appellee.

No. 1 CA-CV 18-0350
FILED 01-07-2020

Appeal from the Superior Court in Maricopa County
No. CV2015-051831
The Honorable Aimee L. Anderson, Judge Retired

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

COUNSEL

The Leader Law Firm, Tucson
By John P. Leader
Co-Counsel for Plaintiff/Appellant

Robbins & Curtin, PLLC, Phoenix
By Joel B. Robbins, Anne E. Findling
Co-Counsel for Plaintiff/Appellant

Zachar Law Firm, PC, Phoenix
By Christopher J. Zachar
Co-Counsel for Plaintiff/Appellant

Fennemore Craig, P.C., Phoenix
By Douglas C. Northup, Philip L. Brailsford
Co-Counsel for Defendant/Appellee
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Decision of the Court

Arizona Attorney General’s Office, Phoenix
By G. Michael Tyron
Co-Counsel for Defendant/Appellee

MEMORANDUM DECISION

Judge David D. Weinzweig delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Jennifer M. Perkins joined.

W E I N Z W E I G, Judge:

¶1 This is a wrongful death action. Mary Ann Mendoza appeals
the superior court’s exclusion of her expert witnesses and its entry of
summary judgment for the State of Arizona and the Arizona Department
of Transportation (“ADOT”). We affirm in part, reverse in part and remand
for further proceedings.

FACTS AND PROCEDURAL BACKGROUND

¶2 Just after midnight on May 12, 2014, a motorist called 911 to
report that Raul Silva-Corona (“Corona”) was driving northbound in the
southbound lanes of State Route 101 near Cactus Road. From there, Corona
would drive in the wrong direction for over 30 miles—spanning three
Arizona freeways—before colliding with Brandon Mendoza’s oncoming
vehicle. Both drivers died instantly. A post-mortem exam revealed that
Corona had methamphetamine and almost three times the legal limit of
alcohol in his blood.

¶3 A pair of ADOT operators watched the tragedy unfold from
ADOT’s Traffic Operations Center, where ADOT monitors traffic
conditions and disseminates public information. The Operations Center
also has programmatic control over the large digital signs mounted above
and along Arizona’s freeways, Dynamic Message Signs (“DMS”), which
ADOT uses to inform motorists about hazards and roadway conditions in
real time.

¶4 After hearing reports of a wrong-way driver on State Route
101, the ADOT operators used ADOT traffic cameras and police radio to
track Corona’s vehicle and anticipate his path. ADOT had not adopted a
formal, scripted message to warn motorists about wrong-way driver
emergencies. As a result, the ADOT operators were left to spontaneously

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craft their own digital DMS warning for motorists in Corona’s path. The
three-line warning read:

ONCOMING TRAFFIC
AHEAD
KEEP RIGHT

¶5 Mary Ann Mendoza is Brandon’s mother. She sued the State
alleging ADOT and the Arizona Department of Public Safety (“ADPS”)
were negligent in failing “to take reasonable measures to prevent wrong-
way accidents” and failing “to provide reasonable and appropriate traffic
measures and law enforcement in light of the risks involved.”

¶6 Mendoza timely disclosed three expert witnesses, including
Dr. Robert Bleyl and Dr. Eric Boelhouwer.1 Dr. Bleyl was disclosed as an
expert witness on “highway safety and transportation engineering,” but the
thrust of his opinion was that Arizona had not reasonably responded to the
increase in wrong-way crashes and fatalities on its freeways between 2004
and 2014. He opined that “Arizona has been negligent for decades, failing
to address or implement procedures to remedy [the] known problem [of
wrong-way drivers] on the state highways,” and that Arizona has not
deployed the countermeasures used by other states. Meanwhile, Dr.
Boelhouwer was offered as a human-factors and warnings expert. He was
“also expected to address causation issues,” including whether Brandon’s
death “would probably have been avoided” if ADOT “had displayed a
reasonably adequate warning.”

¶7 The State deposed Dr. Bleyl and Dr. Boelhouwer. After
discovery concluded, the State moved for summary judgment on four
grounds, including absolute immunity under A.R.S. § 12-820.01 and
qualified immunity under A.R.S. § 12-820.02(A)(1). The State further
argued that summary judgment was proper because “Plaintiff cannot
establish the standard of care” or its breach, and “cannot establish causation
because she cannot show the collision would not have occurred had the
State acted differently.” Separately, the State moved to exclude the expert
testimony of Dr. Bleyl and Dr. Boelhouwer under Arizona Rule of Evidence
702 (“Rule 702”).

1 Mendoza also disclosed an expert on police practices, W.D.
Robinson. The superior court excluded Robinson’s testimony, but
Mendoza does not challenge that decision on appeal.

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¶8 The superior court later granted all the State’s motions in a
single minute entry. It first excluded the expert testimony of Dr. Bleyl and
Dr. Boelhouwer because Mendoza had “failed to meet her burden” to show
the proposed experts satisfied the requirements of Rule 702. More
specifically, the court excluded Dr. Bleyl’s testimony because (a) he was
“not qualified as an expert on wrong-way driver countermeasures or the
applicable standard of care,” (b) his opinions were “unreliable as they are
not the product of reliable principles and methods,” (c) his opinions were
unhelpful “as the opinions are not sufficiently tied to the facts of the
particular collision in this case,” and (d) he offered “impermissible legal
conclusions.” The court then excluded Dr. Boelhouwer’s testimony because
he was “not qualified on DMS, and [did] not know the applicable standard
of care.” It also found his opinions were “not relevant and unreliable as
they are not based on the standard of care imposed by law.”

¶9 The court then granted summary judgment for the State on
grounds of qualified immunity and because Mendoza could not “establish
or prove the standard of care,” breach of the standard or causation.

¶10 Mendoza moved for reconsideration on both fronts. She
argued that summary judgment was inappropriate because questions of
material fact remained on breach and causation, even if the court did not
consider her experts’ testimony. She asked the court to reconsider its
exclusion of her experts, offered supplemental expert affidavits and sought
permission “to retain new experts.” The court denied both motions. The
court found it would be “highly improper” and “contrary” to Arizona law
if Mendoza could “select new experts [or] amend her existing experts’
opinions to cure any deficiencies.” It also explained the State would suffer
“extreme prejudice” and her supplemental affidavits were untimely.2

¶11 Mendoza timely appealed, but abandoned her claims against
ADPS during briefing. We have jurisdiction pursuant to A.R.S. § 12-
2101(A)(1).3

2 Mendoza does not contest the court’s refusal to accept her
supplemental expert affidavits and we do not consider the affidavits here.
Tilley v. Delci, 220 Ariz. 233, 238, ¶ 17 (App. 2009) (“The superior court was
not required to accept and examine evidence presented to it for the first
time in connection with [a] motion for reconsideration.”).

3 We deny the State’s motion to strike Mendoza’s notice of
supplemental authorities.

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DISCUSSION

¶12 We first examine the court’s exclusion of Mendoza’s expert
witnesses, which, if admissible, impacts the propriety of summary
judgment.

I. Expert Witness Testimony

¶13 Arizona Rule of Evidence 702 governs the admissibility of
expert testimony. Expert testimony is admissible when (a) the expert’s
scientific, technical or other specialized knowledge will help the trier of fact
to understand the evidence or to determine a fact in issue, (b) the testimony
is based on sufficient facts or data, (c) the testimony is the product of reliable
principles and methods, and (d) the expert has applied the principles and
methods reliably to the facts of the case. Ariz. R. Evid. 702. Courts may
also consider whether “an expert developed his opinion based on
independent research, or whether the expert developed his opinion
‘expressly for the purposes of testifying.’” State ex rel. Montgomery v. Miller,
234 Ariz. 289, 303, ¶ 47 (App. 2014) (citation omitted).

¶14 The superior court has broad discretion to admit or exclude
expert testimony. Lohmeier v. Hammer, 214 Ariz. 57, 64, ¶ 25 (App. 2006). It
serves as the “gatekeeper” to ensure an expert’s testimony is reliable and
helpful to the jury. Ariz. R. Evid. 702 cmt. (2012). But the court must be
careful not to “replace the adversar[ial] system” or “supplant traditional
jury determinations of credibility and the weight to be afforded otherwise
admissible testimony.” Id. Thus, “[c]ross-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.” Id.

¶15 We review the court’s decision to exclude an expert’s
testimony for abuse of discretion, State v. Bernstein, 237 Ariz. 226, 228, ¶ 9
(2015), even when presented in the summary judgment context, Baker v.
Univ. Physicians Healthcare, 231 Ariz. 379, 387, ¶ 30 (2013) (stating that the
abuse of discretion standard “equally applies to admissibility questions in
summary judgment proceedings”). An “abuse of discretion” exists when
the court commits an error of law in reaching a discretionary decision that
is “manifestly unreasonable, or exercised on untenable grounds, or for
untenable reasons.” Torres for & on Behalf of Torres v. N. Am. Van Lines, Inc.,
135 Ariz. 35, 40 (App. 1982).

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¶16 Mendoza bore the burden to prove by a preponderance of the
evidence that the testimony of her expert witnesses satisfied the
requirements of Rule 702. Miller, 234 Ariz. at 298, ¶ 19.

A. Dr. Robert Bleyl

¶17 Mendoza first argues the superior court abused its discretion
by preventing Dr. Bleyl from offering his expert opinion on whether the
State failed to reasonably respond to the wrong-way driver problem on
Arizona highways before the Mendoza crash, and whether the State’s
alleged failure to respond with countermeasures increased the likelihood
of Brandon’s death. The court excluded Dr. Bleyl’s testimony under Rule
702 on grounds that he was unqualified, and his opinions were unreliable,
unhelpful and legal conclusions.

¶18 We conclude the court did not abuse its discretion in
determining that Dr. Bleyl’s opinions were unreliable. Rule 702 requires
that an expert’s opinion be based on “sufficient facts or data” and represent
“the product of reliable principles and methods.” Dr. Bleyl lacked basic
facts and data, and “there [was] simply too great an analytical gap between
the data and the opinion offered.” Miller, 234 Ariz. at 298-99, ¶¶ 23, 26
(quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)).

¶19 Dr. Bleyl lacked information and knowledge about Arizona’s
pre-collision efforts and measures to combat the wrong-way driver
problem. See Lay v. City of Mesa, 168 Ariz. 552, 554 (App. 1991) (“The trial
court did not abuse its discretion in excluding” expert’s testimony where
“he was not familiar with the [signage placement] standards the City
followed.”). Although Dr. Bleyl opines that Arizona “had no system in
place to address” the wrong-way driver problem, he was unaware of
Arizona’s pre-crash countermeasures or “what [the State] actually did” to
combat the problem before the crash, conceding that he neither sought nor
received an explanation about what Arizona had historically done to
prevent wrong-way crashes.

¶20 Nor did Dr. Bleyl identify what countermeasures ADOT
could or should have deployed to prevent an extremely impaired person
from driving into the face of oncoming traffic for over 30 miles, seemingly
unaware of the world around him, and avoiding Brandon’s tragic death.
He merely “confirmed” that “there are recommendations and things that
might be done to resolve and provide countermeasures to address the
problem.” And even when he articulated possible countermeasures, he
offered no basis for them. Thus, he opined that Arizona “ought” to expand

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its use of “wrong way” signs beyond freeway entrances, but offered no
source for his opinion and agreed the signs are not required or addressed
by the Manual on Uniform Traffic Control Devices. He also criticized the
size and placement of prior signs, but never explained why their height,
size and placement were unreasonable. Instead, he only pointed to the
State’s recent sign modifications, which prove nothing about the prior
signage or whether the modifications were needed to meet some minimum
standard of care.

¶21 Also problematic is Dr. Bleyl’s total reliance on Mendoza’s
counsel for information crucial to his opinions, without verification, and
absence of any independent research, analysis or cognizable methodology.
Miller, 234 Ariz. at 303, ¶ 47. At his deposition, Dr. Bleyl conceded that he
performed no independent research or analysis of Arizona’s roadways to
determine “what wrong-way signage or detection systems do or do not
exist,” but instead relied on Mendoza’s counsel to furnish the necessary
information and articles. Moreover, Dr. Bleyl never even inquired how
Mendoza’s counsel found or selected the universe of materials to provide.
He further recognized that “[i]t’s impossible to know what’s out there that
I don’t know about.”

¶22 Dr. Bleyl tried to justify his blind reliance by explaining that
Mendoza’s counsel had hired him “over the years” and “not really
cover[ed] up” or “hid[den] specific things” from him that “subsequently
[came] up [and] should have been provided,” and by vouching that
Mendoza’s counsel had provided him with “fair and objective” materials.
But, while Dr. Bleyl can rely on information provided by counsel in forming
an independent opinion, he “cannot forgo his own independent analysis
and rely exclusively on what an interested party tells him.” Orthoflex, Inc.
v. ThermoTek, Inc., 986 F. Supp. 2d 776, 798 (N.D. Tex. 2013).

¶23 Beyond that, Dr. Bleyl conceded he lacked the data to test or
confirm the California Department of Transportation report supplied by
Mendoza’s counsel, which provided the “only basis” for his analysis about
the effectiveness of reasonable countermeasures. This omission buttressed
the superior court’s reliability concerns. See, e.g., Munoz v. Orr, 200 F.3d 291,
301-02 (5th Cir. 2000) (describing expert testimony as “unreliable” where
premised on plaintiffs’ data and expert “did not seek to verify the
information presented to him”).

¶24 This court is mindful that “[c]ross-examination [and]
presentation of contrary evidence” are the “traditional and appropriate
means” to “attack[] shaky but admissible” expert testimony, Ariz. R. Evid.

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702 cmt., but Dr. Bleyl’s testimony is not just shaky—it is unreliable and
inadmissible. This is not one of the “close cases” where cross-examination
can solve the problem. Bernstein, 237 Ariz. at 230, ¶ 18. The superior court
found that Dr. Bleyl lacked the foundational knowledge and information to
reach a meaningful conclusion on the State’s historical approach and
contemporary response to wrong-way drivers—he relied solely on others,
without question or direction, to marshal the only materials he consulted in
forming the conclusion. As such, his testimony was fatally flawed as a
matter of law and of no meaningful assistance to the trier of fact.

¶25 Mendoza counters that this court found Dr. Bleyl was
qualified and his opinions were reliable in an earlier case. But that case,
Glazer v. State, 234 Ariz. 305 (App. 2014), vacated in part, 237 Ariz. 160 (2015),
is irrelevant here. Glazer had different facts and issues—placement of
freeway median barriers—and Dr. Bleyl offered his expert testimony on a
different topic altogether—whether “the State should have installed a
median barrier in the area where the crash occurred.” Id. at 309, ¶ 5. Courts
must vet the opinions of an expert witness based on the facts and issue of
each case. “[T]he fact that a witness has qualified as an expert on previous
occasions does not make him any more qualified to testify in the case at
bar.” Englehart v. Jeep Corp., 122 Ariz. 256, 258 (1979).

¶26 On this record, we cannot say the superior court abused its
discretion in excluding Dr. Bleyl’s expert testimony as unreliable.

B. Dr. Eric Boelhouwer

¶27 Mendoza next argues the superior court erroneously
excluded the expert testimony of Dr. Boelhouwer, who concluded that
ADOT posted an inadequate and inappropriate DMS warning message, the
warning contributed to the accident, and ADOT should have scripted a
formal DMS warning for operators to post in wrong-way emergencies. The
court excluded this testimony as irrelevant and unreliable under Rule 702,
emphasizing his opinions were “not based on the standard of care imposed
by law,” he did “not know the applicable standard of care,” and he
“performed no standard of care analysis” related to dynamic freeway
warning signs. The court also found Dr. Boelhouwer unqualified because
he had “nothing to support his opinions other than his prior general
experience in human factors (unrelated to DMS) and his review of
documents provide[d] to him by [Mendoza]’s Counsel.”

¶28 We reverse in part and affirm in part. The superior court
abused its discretion in barring Dr. Boelhouwer’s human factors opinion,

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including whether the warning language was appropriate and adequate to
warn motorists, how humans perceive and react to alternative warning
messages and how a different DMS warning might have impacted a
driver’s behavior. The court did not err, however, in excluding Dr.
Boelhouwer’s opinion concerning ADOT protocol and any conclusion that
warning scripts were required under reasonable state transportation
practices.

1. Language of Warning

¶29 Mendoza should have been allowed to offer Dr. Boelhouwer’s
expert opinion that ADOT operators posted an “inadequate” and
“inappropriate” DMS message to warn motorists about a wrong-way
driver. A human factors expert “may opine about the behavior of an
average person in some settings.” 1 McCormick on Evidence § 13 (Kenneth
S. Broun, ed., 7th ed. 2016).

¶30 Dr. Boelhouwer is qualified as an expert to offer his opinion
about the adequacy of specific warnings, especially under the “liberal
minimum qualification” standard. State v. Delgado, 232 Ariz. 182, 186, ¶ 12
(App. 2013) (qualifications of expert witness are “construed liberally”). He
has knowledge, education and experience beyond the ken of lay jurors
related to “how humans process information, warnings, and instructions.”
State v. Davolt, 207 Ariz. 191, 210, ¶ 70 (2004) (“The test of whether a person
is an expert is whether a jury can receive help on a particular subject from
the witness.”). He has a Ph.D. and master’s degree in industrial and
systems engineering, and a B.A. in chemical engineering. He belongs to
various organizations related to human factors and product safety; works
as a product-warning consultant on the format, content and layout of
warnings; and has published and presented on human-factors issues.

¶31 Rule 702 does not require that Dr. Boelhouwer be the most
qualified person to offer an opinion in the particular area of expertise. See
Lay, 168 Ariz. at 554; Smith v. Ingersoll-Rand Co., 214 F.3d 1235, 1244 (10th
Cir. 2000) (holding that human-factors expert testimony was admissible in
a products liability action against milling machine manufacturer even
though the expert witness lacked firsthand experience with milling
machines).

¶32 In that regard, the superior court erred by narrowly focusing
on Dr. Boelhouwer’s experience with wrong-way driver incidents. The
State can probe and explore Dr. Boelhouwer’s professional focus with a
robust cross-examination, but his relative inexperience with highway signs

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and wrong-way drivers goes to the weight of his testimony, not its
admissibility. State v. Romero, 239 Ariz. 6, 11, ¶ 23 (2016) (stating that an
expert’s “lack of experience in performing toolmark analyses and firearm
identification experiments might have affected the weight a juror would
give his testimony, but it did not bar its admission”); see also McMurtry v.
Weatherford Hotel, Inc., 231 Ariz. 244, 251, ¶ 16 (App. 2013) (explaining that
an expert’s “background and familiarity with certain building regulations
goes to the weight of his testimony, not its admissibility”).

¶33 Dr. Boelhouwer’s warning opinion is also reliable enough to
be tested on cross-examination at trial. Romero, 239 Ariz. at ¶ 17 (“Careful
study may suffice to qualify an expert if it affords greater knowledge on a
relevant issue than the jury possesses.”) (quoting State v. Girdler, 138 Ariz.
482, 490 (1983)). Unlike the opinion of Dr. Bleyl, Dr. Boelhouwer’s opinion
is the product of independent research, background, experience, training
and education. He conducted and relied on his own research and
knowledge of human factors and warnings. He reviewed industry and
research publications, related standards and studies about the effectiveness
of wrong-way driver warnings. He reviewed four depositions and “a
significant amount of production from both sides, plaintiff and defense.”
He relied on scientific literature provided by counsel, but also performed
independent research and relied on materials he found on his own.

¶34 He examined the warning message at issue, explained how it
was flawed and proposed an alternative warning. He generally identified
the elements of a proper warning, which should “include a signal word,
hazard, and avoidance information.” He then challenged the use of
“oncoming traffic” as too vague and ambiguous to warn motorists that a
vehicle was racing towards them in the wrong direction, and offered
“danger” and “wrong way driver” as the “strong, clear” alternative. He
also criticized the absence of guidance on how motorists might avoid the
danger, pointing to Houston’s warning since 2008: “ALL TRAFFIC MOVE
TO SHOULDER AND STOP.”

¶35 His opinion is also relevant. A central issue in this lawsuit is
whether the State breached its duty to keep roads “reasonably safe for
travel.” See Dunham v. Pima Cty., 161 Ariz. 304, 306 (1989). “Where, as here,
evidence is offered from which the fact-finder could reasonably conclude
that the public agency or jurisdiction should have foreseen a danger to
plaintiff from the negligent or inattentive conduct of plaintiff or of another,
then the question of the [government’s] negligence is one for the jury.” Id.
Dr. Boelhouwer’s opinion may help the jury understand the evidence and
decide the case.

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¶36 The State counters that Dr. Boelhouwer mistakenly believed
the DMS message used “caution” instead of “keep right.” But Dr.
Boelhouwer also challenged the use of “oncoming traffic” and omission of
“danger” and “wrong way driver.” The State can expose and amplify the
point at trial with evidence and cross-examination, but the asserted
weakness is not reason to exclude the testimony altogether. See Pipher v.
Loo, 221 Ariz. 399, 404, ¶ 17 (App. 2009) (challenges to “the accuracy and
reliability of a witness’ factual basis, data, and methods go to the weight
and credibility of the witness’ testimony”).

¶37 The State also argues that Dr. Boelhouwer is not a traffic
engineer and has no basis to address causation and the chances of a car
accident. We understand and appreciate the argument, but the State can
probe and explore the subject with fulsome cross-examination—casting
doubt on whether and how Dr. Boelhouwer’s general knowledge and
experience in the human-factors world translates to motorists on Arizona
highways. Ariz. R. Evid. 702 cmt. (2012) (“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.”). “In close cases, the trial court should allow the jury to exercise
its fact-finding function, for it is the jury’s exclusive province to assess the
weight and credibility of evidence.” Bernstein, 237 Ariz. at 230, ¶ 18.

2. ADOT Protocol

¶38 The court did not abuse its discretion, however, in excluding
Dr. Boelhouwer’s opinion that ADOT should have responded to wrong-
way driver emergencies with warning scripts. Mendoza points to no
training or experience that qualifies Dr. Boelhouwer to offer an expert
opinion about reasonable state government protocols and strategies in
response to transportation safety issues. He has studied no literature and
performed no research on reasonable policy decisions and formal
government practices.

II. Summary Judgment

¶39 Mendoza argues the superior court erroneously entered
summary judgment for the State on her claims against ADOT. We reverse
and remand for the court to consider Dr. Boelhouwer’s expert testimony
about the DMS warning and human-factors opinions, and determine
whether summary judgment remains appropriate. We express no opinion
on the State’s qualified immunity defense, and the court should consider

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the merits of this defense on remand given the allowable parameters of Dr.
Boelhouwer’s opinions.

¶40 Although we do not reach the issue here, we remind the
superior court that expert testimony is not required to prove the standard
of care in ordinary negligence cases. Rossell v. Volkswagen of Am., 147 Ariz.
160 (1985). This is true because the factfinder “can rely on its own
experience in determining whether the defendant acted with reasonable
care under the circumstances.” Bell v. Maricopa Med. Ctr., 157 Ariz. 192, 194
(App. 1988). In Arizona, juries are composed of motorists who regularly
navigate and read signs on the state’s highway system. See Seide v. Rhode
Island, 875 A.2d 1259, 1271 (R.I. 2005) (explaining that expert testimony is
not required for determining an officer’s standard of care when in high-
speed pursuit). By contrast, an average juror would not likely possess the
knowledge or experience needed to critique the State’s historical strategies
and countermeasures to wrong-way drivers.

CONCLUSION

¶41 We affirm the superior court’s order excluding Dr. Bleyl’s
expert testimony, but affirm in part and reverse in part the exclusion of Dr.
Boelhouwer’s expert testimony. We also remand for further consideration
of the State’s motion for summary judgment based on admissible record
evidence. As the successful party on appeal, Mendoza is awarded her
taxable costs upon compliance with ARCAP 21.

AMY M. WOOD • Clerk of the Court
FILED: JT

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