Waterford v. Sanchez

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

NICHOLAS WATERFORD, Plaintiff/Appellee,

v.

LAURO ARGUIJO SANCHEZ, TLC CUSTOM FARMING COMPANY,
LLC, an Arizona Limited Liability Company, Defendants/Appellants.

No. 1 CA-CV 21-0238
FILED 3-17-2022

Appeal from the Superior Court in Yuma County
No. S1400CV201800780
The Honorable Lawrence C. Kenworthy, Judge

VACATED AND REMANDED

COUNSEL

Barrett & Matura PC, Scottsdale
By Kevin C. Barrett, Melanie M. Weigand
Counsel for Defendants/Appellants

Schneider & Onofry PC, Phoenix
By Charles D. Onofry,
Counsel for Plaintiff/Appellee
 WATERFORD v. SANCHEZ, et al.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Randall M. Howe and Judge James B. Morse Jr. joined.

C A M P B E L L, Judge:

¶1 TLC Custom Farming Company, LLC (TLC) and Lauro
Arguijo Sanchez (collectively, the Defendants) appeal from a judgment
entered in favor of Nicholas Waterford following a jury verdict. Because the
superior court erroneously excluded expert testimony, we vacate the
judgment and remand for a new trial.1

BACKGROUND

¶2 Before dawn on a winter morning, Waterford left his friend’s
house and began driving home in his Ford Mustang. Substantially impaired
from an evening of drinking alcohol and smoking marijuana, Waterford
drove down several surface streets, entered a state highway, and set his
Mustang’s cruise control to 60 miles per hour.

¶3 At the same time, Sanchez, a supervisor for TLC, drove a
company truck-trailer combination loaded with a forklift toward the state
highway. As he approached a highway intersection, Sanchez came to a
complete stop at a stop sign. Upon checking in both directions and seeing
no highway cross-traffic, Sanchez proceeded into the intersection. While
“looking straight ahead,” Sanchez saw “a light” approaching in his left
peripheral vision and accelerated to clear the intersection. Despite
Sanchez’s efforts, Waterford’s Mustang crashed into the back portion of the
trailer.

¶4 Sanchez immediately got out of the truck and ran toward the
Mustang. Seeing that Waterford was injured, Sanchez, with the help of
another driver, called the police.

1 We deny Waterford’s motion to strike a portion of the Defendants’
reply brief discussing assumptions used by Waterford’s reconstruction
expert. Contrary to Waterford’s contention, the Defendants presented the
assumptions at issue in both their opening brief and in filings in the
superior court.

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¶5 When a patrol officer arrived shortly thereafter, the Mustang
and the truck-trailer combination were blocking the highway. Initially, the
officer “check[ed] the scene” and observed no skid marks to indicate that
Waterford had applied the brakes before impact. As he approached the
Mustang, the officer noted that it had sustained considerable front-end
damage, its headlights were not on, and a strong smell of alcohol emanated
from the car’s interior. The officer spoke with Sanchez and concluded that
he was unimpaired, but had an obligation to yield to oncoming traffic
before crossing the highway. See A.R.S. § 28-773 (“The driver of a vehicle
shall stop in obedience to a stop sign . . . and then proceed with caution
yielding to vehicles that are not required to stop and that are within the
intersection or are approaching so closely as to constitute an immediate
hazard.”).

¶6 After medical personnel transported Waterford to a hospital,
they drew a sample of his blood. Subsequent testing of the blood sample
revealed the presence of marijuana and cocaine and an alcohol
concentration of .217. Waterford sustained numerous injuries from the
high-speed collision (including a fractured skull, a fractured neck, a
collapsed lung, a fractured sternum, three broken ribs, and a broken femur),
and when he woke up in the hospital, he only recalled setting the Mustang’s
cruise control.

¶7 Waterford sued the Defendants, alleging that their negligence
caused his damages. After a five-day trial, a jury returned a verdict in
Waterford’s favor—finding he had sustained damages of $1,250,000 and
apportioning 90% of fault to the Defendants and 10% to him.

¶8 The Defendants moved for a new trial, which the superior
court denied. The Defendants then timely appealed.

DISCUSSION

¶9 The Defendants contend that the superior court erroneously
excluded evidence of contributory negligence and improperly instructed
the jury, depriving them of their right to present fully a comparative fault
defense at trial predicated on Waterford’s impairment, excessive speed, and
lack of an operational airbag.

¶10 Under Arizona’s comparative fault statutory scheme, a
“defendant is liable only for the amount of damages allocated to that
defendant in direct proportion to that defendant’s percentage of fault.”
A.R.S. § 12-2506(A). For purposes of the statute, fault is “an actionable
breach of legal duty, act or omission proximately causing or contributing to

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injury or damages sustained by a person seeking recovery, including
negligence in all of its degrees.” A.R.S. § 12-2506(F).

¶11 Because a comparative fault allegation “is an affirmative
defense,” the defendant bears the burden of proving that the plaintiff is
“actually at fault.” Ryan v. San Francisco Peaks Trucking Co., Inc., 228 Ariz.
42, 48, ¶ 22 (App. 2011). To establish fault, the defendant must produce
evidence that the plaintiff owed a duty, breached that duty, and that the
plaintiff’s breach caused, at least in part, injury to the plaintiff. Id.

¶12 In this case, Waterford indisputably violated his statutory
obligations to drive unimpaired and abide by the posted highway speed
limit (55 mph). A.R.S. § 28-1381(A)(1) (prohibiting the actual physical
control of a vehicle by a person under the influence of intoxicating liquor
or any drug), (A)(2) (prohibiting the actual physical control of a vehicle by
a person with an alcohol concentration of 0.08 or greater); A.R.S.
§ 28-1382(A)(2) (prohibiting the actual physical control of a vehicle by a
person with an alcohol concentration of 0.20 or greater); A.R.S. § 28-701(A)
(requiring drivers to control the speed of their vehicles “in compliance with
legal requirements” and prohibiting the operation of a vehicle “at a speed
greater than is reasonable”). The contested issue is whether Waterford’s
breach of his statutory duties proximately caused or contributed to his
injuries. See Zuern v. Ford Motor Co., 188 Ariz. 486, 491-92 (App. 1996)
(explaining causation “is a necessary condition precedent to consideration
of a person’s fault—i.e., the fault must have ‘proximately caus[ed] or
contribut[ed]’ to the claimant’s injuries to be considered”) (quoting A.R.S.
§ 12-2506(F)(2)).

¶13 The Defendants challenge the superior court’s in limine
rulings precluding two defense experts from testifying about Waterford’s
ability to avoid or mitigate the collision. Contrary to the superior court’s
findings, the Defendants contend that the experts’ opinions were
predicated on facts and reliable methodologies.

¶14 We review a superior court’s ruling on the admissibility of
expert opinion testimony for an abuse of discretion. Sandretto v. Payson
Healthcare Mgmt., Inc., 234 Ariz. 351, 356, ¶ 11 (App. 2014). We will uphold
the superior court’s evidentiary ruling absent an abuse of discretion and
resulting prejudice. Gemstar Ltd. v. Ernst & Young, 185 Ariz. 493, 506 (1996).

¶15 The admissibility of expert testimony is governed by Arizona
Rule of Evidence (Rule) 702, which adopted the language of its federal
counterpart and “reflect[s] the principles set forth in” Daubert v. Merrell Dow

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Pharmaceuticals, Inc., 509 U.S. 579 (1993). Sandretto, 234 Ariz. at 356, ¶ 11; see
also Ariz. R. Evid. 702 cmt. The rule allows a witness “who is qualified as
an expert by knowledge, skill, experience, training, or education” to testify
“in the form of an opinion or otherwise” if such testimony “will help the
trier of fact to understand the evidence or to determine a fact in issue.” Ariz.
R. Evid. 702(a).

¶16 In evaluating whether expert opinion will assist the trier of
fact, the superior court serves as a gatekeeper, “with the aim of ensuring
such testimony is reliable and helpful.” State v. Romero, 239 Ariz. 6, 9, ¶ 12
(2016) (quoting Ariz. R. Evid. 702 cmt. (2012)). Notwithstanding the
superior court’s gatekeeping role, Rule 702 does not “supplant traditional
jury determinations of credibility and the weight to be afforded to
otherwise admissible testimony,” nor is it “intended to replace the
adversary system.” Ariz. R. Evid. 702 cmt. (2012); see also State v. Bernstein,
237 Ariz. 226, 229, ¶ 14 (2015) (“The overall purpose of Rule 702 . . . is simply
to ensure that a fact-finder is presented with reliable and relevant evidence,
not flawless evidence.”) (quotation omitted). Rather, “[c]ross-examination,
presentation of contrary evidence, and careful instruction on the burden of
proof” remain the “appropriate means of attacking shaky but admissible
evidence.” Ariz. R. Evid. 702 cmt. (2012). When Rule 702 is implicated, the
proponent of the expert testimony bears the burden of showing by a
preponderance of the evidence that the testimony is “based on sufficient
facts or data” and “the product of reliable principles and methods” that
have been “reliably applied . . . to the facts of the case.” Ariz. R. Evid.
702(b)-(d); Bernstein, 237 Ariz. at 228, ¶ 9.

¶17 Before trial, Waterford moved in limine to preclude the
Defendants’ accident reconstruction expert, Joseph Manning, and human
factors expert, Michael Kuzel, from testifying that Waterford could have
avoided or mitigated the collision. While Waterford did not dispute either
witness’s qualifications as experts for purposes of Rule 702, he asserted that
Manning and Kuzel had relied on unsubstantiated assumptions in
formulating their opinions.

¶18 With respect to Manning, Waterford challenged his opinion
that “it may have taken Sanchez upwards of 6.2 seconds” to travel from the
stop sign to the point of impact. Waterford argued that certain assumptions
rendered this calculation unreliable: (1) applying an acceleration rate of
.1 g to the truck-trailer combination rather than the .12 to .14 g acceleration
rates applied to heavy trucks by purported reconstruction authorities; (2)
using a constant rate of acceleration for the entire distance from the stop
sign to the point of impact (63 feet) despite Sanchez’s self-reported increase

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in acceleration once he perceived a light in his left peripheral vision; and (3)
including the 14 feet between the stop sign and the highway’s edge in the
calculation, notwithstanding Waterford’s legal right, as the favored driver,
to rely on the assumption that Sanchez would give him the right-of-way up
to the point the truck entered the highway intersection. See Marks v.
Goodding, 96 Ariz. 253, 256 (1964) (holding “one who is driving on a through
or favored highway may assume that a motorist approaching from a side
road will stop in order to give him the right of way . . . until such time as it
becomes apparent to him, acting as a reasonable person, that the other
motorist does not intend to stop or give him the right-of-way”) (emphasis
added); Davis v. Weber, 93 Ariz. 312, 318 (1963) (“It is the settled law of this
jurisdiction that the driver of a vehicle on a favored highway is not
necessarily free from negligence in colliding with a vehicle entering from
an intersecting street. The fact that the driver on the favored highway has
the right-of-way does not relieve him from keeping a proper lookout and
yielding the right-of-way, where he can, to another motorist when the favored
driver discovers that the other is not going to yield.”) (emphasis added).
According to Waterford, Manning lacked factual and legal bases for
employing these assumptions, rendering his “opinion about how long it
took Sanchez to travel from the stop sign to the point of impact” unreliable.
Furthermore, subtracting the time it took Sanchez to drive the truck the 14
feet from the stop sign to the highway’s edge, Waterford countered that
“the time available to avoid the accident” was “somewhere in the range of
2.9 to 3.3 seconds,” insufficient to allow a reasonable, unimpaired driver,
abiding by the speed limit, to avoid the collision.

¶19 Waterford likewise challenged the admissibility of Kuzel’s
opinion that a reasonably attentive, unimpaired driver in Waterford’s
position, abiding by the 55-mph speed limit, would have perceived the
truck-trailer’s “forward movement” within 2.6 to 3.2 seconds and begun
hard braking (3.6 seconds to stop), thereby substantially decelerating or
stopping the Mustang before impact (within 6.2 to 6.8 seconds). First,
Waterford argued that Kuzel’s opinion was wholly “irrelevant and
meaningless” absent a reliable opinion that Waterford had 6.2 to 6.8
seconds to stop, and because Manning’s calculation was based on faulty
assumptions, it failed to provide a reliable predicate. Second, Waterford
questioned Kuzel’s calculation of a reasonable driver’s perception and
reaction time, asserting that because Kuzel used another expert’s regression
equation rather than formulating his own, the opinion was unreliable.
Third, Waterford objected to Kuzel’s assumption that the roadway’s
coefficient of friction was .7 when asphalt has a coefficient of friction range
from .55 to .90 and Kuzel failed to test the condition of the actual highway’s
surface. Finally, Waterford contended Kuzel’s opinion that a reasonable

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driver in Waterford’s position could have or nearly could have stopped,
without any accompanying opinion as to which injuries could have been
avoided at a reduced speed, was too equivocal and meaningless to “assist
the trier of fact in determining whether [Waterford] could have avoided the
accident” or injuries.

¶20 In response, the Defendants argued that Manning and Kuzel
based their opinions on the factual record and the application of reliable
methodologies, not unfounded assumptions. Pointing to similar
assumptions Waterford’s accident reconstruction expert applied (using an
average acceleration rate of .08 g and a .7 g coefficient of friction to calculate
that 6.8 seconds elapsed between the truck-trailer commencing from the
stop sign and reaching the point of impact), the Defendants asserted that
presentation of their experts’ testimony through the adversarial system
would allow a jury to assess credibility and determine the weight, if any, to
afford the opinion evidence. Addressing some of Waterford’s specific
objections, the Defendants denied that Kuzel improperly used (1) a
regression equation and program developed by a “well recognized . . .
leader in th[e] field,” and (2) a .7 g coefficient of friction when .7 g reflects
the average of the undisputed coefficient of friction range.

¶21 After full briefing and oral argument, the superior court
granted Waterford’s request to preclude expert opinion testimony “relating
to how long” he had to stop before impact and whether he could have
reasonably avoided the accident. On the Defendants’ motion to reconsider,
the superior court affirmed its in limine rulings, finding that Manning and
Kuzel had “guess[ed] on some fairly important facts” and admonishing that
the Defendants were precluded from raising “the avoidability issue” at
trial. The court also clarified other pretrial rulings, stating that evidence of
Waterford’s impairment was admissible only for the limited purpose of
proving he drove without headlights before the accident and evidence of
his excessive speed and lack of a functioning airbag was admissible only to
demonstrate the unreasonableness of his failure to wear a seatbelt, not as
stand-alone bases for comparative fault.

¶22 Given the superior court’s in limine rulings, the trial issues
were limited to whether Waterford drove the Mustang without headlights,
thereby absolving the Defendants of liability for Sanchez’s failure to yield,
and the extent to which Waterford’s failure to wear a seatbelt contributed
to his physical injuries. See A.R.S. § 28-922 (requiring all vehicles “on a
highway” to “display lighted lamps and illuminating devices” at “any time
from sunset to sunrise and at any other time when there is not sufficient
light to render clearly discernible persons and vehicles on the highway at a

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distance of five hundred feet ahead”); A.R.S. § 28-909(A)(1) (requiring
“[e]ach front seat occupant of a motor vehicle” to “[h]ave the lap and
shoulder belt properly adjusted and fastened while the vehicle is in
motion”); see also Law v. Superior Court, 157 Ariz. 147, 157 (1988)
(recognizing “the seat belt defense as a matter which the jury may consider
in apportioning damages due to the ‘fault’ of the plaintiff”).

¶23 The record does not support the superior court’s finding that
Manning and Kuzel, in large part, simply “guess[ed].” To the contrary, the
record reflects that the defense experts formulated their opinions by
applying reliable principles and methodologies to the facts, satisfying Rule
702’s reliability threshold requirement. See State ex rel. Montgomery v. Miller,
234 Ariz. 289, 298, ¶ 23 (App. 2014) (“While the expert’s methodology must
be based on more than speculation, its reliability need not be established to
a degree of scientific certainty.”).

¶24 As detailed in the Defendants’ offer of proof, Manning
applied a .1 g (13.7 mph at impact) acceleration rate based on the weight of
the truck-trailer combination (loaded with a forklift) compared to the
weight of a typical passenger vehicle (generally accorded a .2 g acceleration
rate). Notably, the .1 g acceleration rate was also consistent with Sanchez’s
estimate that the truck-trailer traveled at 12 mph at impact. As further
explained in the offer of proof, Kuzel applied a 2.6-to-3.2 seconds
perception and reaction time range and determined that a reasonably
attentive, unimpaired driver traveling no faster than the posted speed limit
would have engaged hard braking within 3.2 seconds of the truck-trailer
resuming forward movement from the stop sign. Relying on Manning’s
calculation that the truck-trailer traveled from the stop sign to the area of
impact in 6.2 seconds, see State v. Lundstrom, 161 Ariz. 141, 147 (1989) (“A
testifying expert may rely on the opinions of other experts if such reliance
is the kind of material on which experts in the field base their opinions.”)
(internal quotation marks omitted), Kuzel concluded that a reasonably
attentive driver would have braked for at least 3.6 seconds at .7 g (using an
approximate average of the undisputed coefficient of friction range),
thereby substantially reducing the Mustang’s speed before impact. Because
Sanchez reported he heard no braking and the police report documented
no evidence of braking on the highway, Kuzel concluded that Waterford
did not respond in a reasonably attentive manner due to his impaired
cognitive functioning.

¶25 “Questions about the accuracy and reliability of a witness’
factual basis, data, and methods go to the weight and credibility of the
witness’ testimony and are questions of fact . . . [that do] not turn on the

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judge’s preliminary assessment of testimonial reliability. It is the jury’s
function to determine accuracy, weight, or credibility.” Pipher v. Loo, 221
Ariz. 399, 404, ¶ 17 (App. 2009) (quoting Logerquist v. McVey, 196 Ariz. 470,
488, ¶ 52 (2000)).

¶26 To the extent Waterford disagreed with the experts’ opinions,
he could have challenged both Manning and Kuzel on cross-examination
concerning the application of a constant .1 g acceleration rate, the inclusion
of the distance (14 feet) between the stop sign and the edge of the highway,
and the use of an average rather than precise coefficient of friction in the
calculation. See Sandretto, 234 Ariz. at 359, ¶ 24 (explaining challenges to
expert testimony “based on isolated portions” of the expert’s opinion “does
not present a Rule 702 argument; rather, it is a jury argument going to the
weight and credibility of the testimony”). Waterford also could have
questioned Kuzel regarding his use of another expert’s regression equation,
but Kuzel’s reliance on the equation in reaching his own conclusion did not
render his opinion inherently unreliable. See State v. Smith, 215 Ariz. 221,
228, ¶ 23 (2007) (“Expert testimony that discusses reports and opinions of
another is admissible under [Rule 703] if the expert reasonably relied on
these matters in reaching his own conclusion.”). Moreover, Waterford
could have presented competing expert opinion testimony, although we
note that his accident reconstruction expert relied on similar assumptions
and utilized some of the same methodology. Finally, contrary to
Waterford’s contention that expert opinion regarding avoidability was
irrelevant absent precise evidence identifying which damages could have
been mitigated, A.R.S. § 12-711 permits a jury to find a defendant “not liable
if the defendant proves that the claimant . . . was under the influence of an
intoxicating liquor or a drug and as a result of that influence the claimant
was at least fifty percent responsible for the accident or event that caused
the claimant’s harm.”

¶27 Simply put, expert opinion testimony is not inadmissible
merely because the opposing party disagrees with some of the experts’
underlying assumptions or the conclusions drawn. Rather, when expert
opinion testimony is predicated on facts and reliable principles, objections
to the testimony may be raised through robust cross-examination, allowing
the jury, as fact-finder, ultimately to decide whether the expert’s opinions
are credible. See Montgomery, 234 Ariz. at 298, ¶ 20 (“In evaluating
admissibility, courts must remain cognizant of the separate functions of
judge and jury.”); see also Bernstein, 237 Ariz. at 229, ¶ 14 (“Rule 702(d) must
be interpreted and applied with some flexibility to encompass the
multitude of scenarios that may be presented and to maintain the division
in function between the fact-finder and gatekeeper.”) (internal quotation

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marks omitted); Elosu v. Middlefork Ranch Inc., 21-35309, 2022 WL 534345, at
*5, 6, 9 (9th Cir. Feb. 23, 2022) (concluding the trial court improperly
“assumed a factfinding role” by excluding an expert’s report on the basis it
was “too speculative,” explaining that “while a court may reject wholly
speculative or unfounded testimony, it abuses its discretion if it overlooks
relevant data submitted as the foundation of an expert’s remarks”). Because
it is “not always” clear whether “errors in application render evidence
unreliable,” in “close cases, the [superior] 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.

¶28 Given the nature of the opinions proffered in this case, the
jury, as fact finder, must weigh and assess the accuracy and reliability of
the defense experts’ testimony. Pipher, 221 Ariz. at 404, ¶ 17. The question,
then, is whether the erroneous exclusion of its experts’ opinion testimony
prejudiced the defense.

¶29 The test is whether the jury would have returned the same
verdict had the precluded evidence been admitted. Groener v. Briehl, 135
Ariz. 395, 398 (App. 1983) (explaining an erroneous ruling on the
admissibility of opinion testimony “is reversible if the reviewing court is
unable to conclude that the jury would have reached the same verdict”
absent the error). Because admission of the excluded testimony regarding
avoidability and mitigation would have permitted the Defendants to argue
comparative fault based on Waterford’s impairment and excessive speed—
that an unimpaired, reasonable driver traveling at a speed no faster than
the posted speed limit would have had the time and distance to avoid or
substantially mitigate the collision—it could have changed the jury’s
apportionment of fault. Accordingly, we vacate the judgment in favor of
Waterford and remand for a new trial. Given this resolution, we need not
address the Defendants’ other claims of trial error.

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CONCLUSION

¶30 For the foregoing reasons, we vacate the judgment and
remand for a new trial.

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

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