                                 IN THE
             ARIZONA COURT OF APPEALS
                              DIVISION ONE


  TAMMY FELIPE, as surviving parent of ISRAEL FELIPE, individually
 and on behalf of JOSE FELIPE, the statutory beneficiaries under A.R.S. §
   12-612; MADELYN PEREZ, an individual; and ABEL GARCIA, an
                     individual, Plaintiffs/Appellants,

                              v.
    THEME TECH CORPORATION, a Nevada corporation; GIBRAN
      SANDOVAL and JESSICA SANDOVAL, husband and wife,
                     Defendants/Appellees.

                           No. 1 CA-CV 13-0393
                           FILED 08-28-2014

          Appeal from the Superior Court in Maricopa County
         No. CV2009-014028 and CV2009-018754 (Consolidated)
               The Honorable J. Richard Gama, Judge

   AFFIRMED IN PART, VACATED IN PART, AND REMANDED


                                COUNSEL

Fennemore Craig, P.C., Phoenix
By Julio M. Zapata, Theresa Dwyer-Federhar, Aaron T. Martin
Counsel for Plaintiffs/Appellants

Potts & Associates, Phoenix
By Richard G. Potts, Walter Grochowski
Counsel for Defendant/Appellee Theme Tech Corporation
                       FELIPE, et al. v. THEME, et al.
                           Opinion of the Court

The Doyle Firm, P.C., Phoenix
By William H. Doyle, Teresa H. Wales, D. Andrew Bell
Counsel for Defendants/Appellees Sandoval


                                 OPINION

Presiding Judge John C. Gemmill delivered the opinion of the Court, in
which Judge Peter B. Swann and Judge Patricia A. Orozco joined.


G E M M I L L, Judge:

¶1             Tammy Felipe, Madelyn Perez, and Abel Garcia (collectively
“Plaintiffs”) sued Theme Tech Corporation and Gibran and Jessica
Sandoval (collectively “Defendants”) for wrongful death and personal
injury damages arising from an automobile accident. The jury rendered a
defense verdict and judgment was entered in favor of Defendants, which
Plaintiffs appeal. To resolve this appeal, we must interpret the “one
independent expert” language of Arizona Rule of Civil Procedure (“Rule”)
26(b)(4)(D). We conclude that the word “independent” in Rule 26(b)(4)(D)
is ambiguous and we adopt the meaning of “independent” set forth in the
Committee Comment to the 1991 amendment to Rule 26, which states that
an “independent expert” is “a person who will offer opinion evidence who
is retained for testimonial purposes and who is not a witness to the facts
giving rise to the action.” Applying this interpretation, we vacate the
judgment and remand for further proceedings. We affirm, however, the
trial court’s pretrial ruling excluding the human factors expert and its grant
of summary judgment on the issue of punitive damages.

                             BACKGROUND

¶2            Perez, Garcia, and Israel Felipe, son of Plaintiff Tammy Felipe,
were passengers in a Chevrolet Blazer driven by Israel’s brother, Joshua
Felipe, that was heading north on 25th Avenue in Phoenix when a Theme
Tech delivery truck, driven by Defendant Sandoval, was heading west on
Adams Street. The vehicles collided in the intersection, with the front of the
truck hitting the right side of the Blazer. Israel Felipe was killed in the
accident and the others were injured. Plaintiffs sought general, special, and
punitive damages.




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                       FELIPE, et al. v. THEME, et al.
                           Opinion of the Court

¶3            Before trial, Plaintiffs disclosed their intention to present
testimony from a human factors expert describing numerous ways in which
cell phone usage while driving increases the likelihood of distraction.
Additionally, their expert would testify that it was “more likely than not
that [Sandoval] was distracted by using his cell phone at the time of the
accident.” Defendants filed a motion in limine to preclude Plaintiffs from
presenting expert testimony of possible cell phone use. The trial court
granted the motion, finding that the evidence “established . . . that
[Sandoval] was not on the phone at the time of the collision.” The trial court
then determined that any expert testimony based on the “assumption” that
Sandoval was on the phone would be “speculation” and “not relevant
pursuant to [Arizona Rule of Evidence (“Evidence Rule”)] 402 and . . .
[unfairly] prejudicial pursuant to [Evidence Rule] 403.”

¶4             Defendants also filed a pre-trial motion for partial summary
judgment on the issue of punitive damages, arguing that no evidence
supported a finding that Defendants “consciously” acted to create a
substantial risk to others, that Defendants acted with intent to harm, or that
Defendants acted with an “evil mind.” The trial court agreed and granted
the motion, holding that no reasonable jury could find by clear and
convincing evidence that Defendants had acted in a way that would
support a punitive damages award.

¶5            At trial, Plaintiffs called Officer David Garcia of the Phoenix
Police Department to testify as an investigating officer and the “scene
agent,” whose responsibilities included “trying to determine how the
collision occurred,” “document[ing] all of the evidence available at the
time,” and “putting together an accident reconstruction.” Officer Garcia’s
testimony included a description of the accident scene, the weather and
road conditions on the day of the collision, discussion about different types
of accident reconstruction methods, the method he used in his
reconstruction, and the speeds of the vehicles when they collided.

¶6            During Officer Garcia’s testimony, a bench conference took
place in which Defendants questioned whether Plaintiffs intended to use
Officer Garcia as their “liability expert.” After discussion, the trial court
informed the parties that Plaintiffs could question Officer Garcia about his
observations, but any expert opinions or conclusions elicited from Officer
Garcia would preclude separate expert testimony addressing the same
issues. Plaintiffs, however, had already elicited Officer Garcia’s opinions
regarding speed by this point in time.



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                       FELIPE, et al. v. THEME, et al.
                           Opinion of the Court

¶7             Several days later, when ruling on the allowable scope of
testimony from Plaintiffs’ retained accident reconstruction expert, the court
noted that Plaintiffs had questioned Officer Garcia in a manner that “laid
the foundational predicate for opinion testimony” from Garcia. The court
stated that “[t]here is no question in the Court’s mind that the plaintiff[s]
treated [Officer Garcia] as an expert reconstruction specialist.” Because
Plaintiffs had elicited expert opinions from Officer Garcia, the court
concluded that any further expert opinion testimony on the same issues
would violate the limitation of Rule 26(b)(4)(D) to one independent expert
per issue and result in the presentation of “impermissible cumulative
expert opinions.” Specifically, the court ruled Plaintiffs could not present
further expert testimony on the following issues: speed at impact of
Plaintiffs’ vehicle, speed at impact of Defendants’ vehicle, whether
Plaintiffs’ vehicle stopped at the stop sign on 25th Avenue and Adams Street
before entering the intersection where the collision occurred, and whether
Plaintiffs’ vehicle could have obtained a certain speed from a stopped
position at the stop sign to the point of impact.

¶8            With these limitations, Plaintiffs called their retained expert,
Jeffery Wirth, to testify about his opinions formed in the course of
conducting his own accident reconstruction. Wirth testified that Sandoval
had sufficient time to perceive Plaintiffs’ vehicle before the collision.
Although he was precluded from expressing his own expert opinions of the
vehicles’ speeds, Wirth did testify that he thought Officer Garcia’s opinion
on the speed of Defendant’s vehicle was “at the low end” of the range of
speeds he believed were relevant and that he “had the [Defendants’ vehicle]
at a higher speed” when performing his analysis.

¶9           The jury returned a verdict in favor of Defendants. Plaintiffs
timely appeal, and we have jurisdiction in accordance with Arizona
Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1) and -2101(A)(1).

                                 ANALYSIS

I.     The Trial Court’s Application of the “One Independent Expert”
       Rule

¶10           Plaintiffs assert that the trial court erred by limiting the scope
of testimony by their retained accident reconstruction expert. A trial court
has broad discretion in determining the admissibility of expert testimony,
and we review those determinations under an abuse of discretion standard.
Gemstar Ltd. v. Ernst & Young, 185 Ariz. 493, 505, 917 P.2d 222, 234 (1996).

                                       4
                       FELIPE, et al. v. THEME, et al.
                           Opinion of the Court

A trial court’s interpretation of the rules of procedure is a question of law
that we review de novo. Aztar Corp. v. U.S. Fire Ins. Co., 223 Ariz. 463, 479,
¶ 60, 224 P.3d 960, 976 (App. 2010).

¶11           The trial court ruled that because Plaintiffs elicited Officer
Garcia’s opinions derived from his accident reconstruction, Plaintiffs’
retained expert could not testify to his opinions on those same factors.
Plaintiffs argue that, as a matter of law, Rule 26(b)(4)(D) allows a party to
retain and select one “independent expert” per issue, per side, who may
offer opinion testimony. Plaintiffs assert that Officer Garcia was not and
could not have been their independent expert.

       A.     Did Officer Garcia Provide Expert Testimony?

¶12             Plaintiffs first argue that Officer Garcia did not provide expert
opinion testimony. According to Plaintiffs, Officer Garcia “was nothing
more than an ‘actor or viewer’ involved in the aftermath of the accident.”
Plaintiffs cite an opinion of this court — addressing a different issue — that
agreed with a commentary on the federal rules of civil procedure stating
that an expert who is “an actor or viewer with respect to the transactions or
occurrences that are part of the subject matter of [a] lawsuit . . . should be
treated as an ordinary witness.” Sanchez v. Gama, 233 Ariz. 125, 131, ¶ 17,
310 P.3d 1, 7 (App. 2013) (quoting The Advisory Committee Notes to
Federal Rule of Civil Procedure 26(b)(4)).

¶13           Plaintiffs’ reliance on Sanchez is misplaced. The issue in
Sanchez was whether a treating chiropractor was entitled to fees as an expert
witness or as a lay witness, when the doctor testified pursuant to subpoena
to both facts and expert opinions. Id. at ¶¶ 6, 19. Sanchez provides no
guidance on whether a fact witness may also be an expert witness for
purposes of the one independent expert limitation set forth in Rule
26(b)(4)(D).

¶14           Although Officer Garcia was an “actor or viewer” in the sense
that he was the Phoenix Police Department’s “scene agent,” his testimony
extended beyond his observations at the scene and his physical
investigation. Specifically, he described various accident reconstruction
methods, his own reconstruction of this accident, and his opinions of the
speeds of the vehicles based on his reconstruction. Accident reconstruction
involves scientific and technical principles of physics, engineering, and
mechanics. Officer Garcia was qualified under Evidence Rule 702 to offer
opinions as an expert, and he did so. Accordingly, we reject Plaintiffs’

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                       FELIPE, et al. v. THEME, et al.
                           Opinion of the Court

argument that Officer Garcia was not an expert witness, and we agree with
the trial court that he provided expert testimony.

       B.     Did the Trial Court Correctly Apply Rule 26(b)(4)(D) in
              Precluding Part of Wirth’s Testimony After Officer Garcia
              Testified?

¶15            Plaintiffs contend that even if Officer Garcia provided expert
testimony, he could not be considered their “independent expert” because
Plaintiffs did not retain him to testify as an expert. The trial court therefore
erred, according to Plaintiffs, in relying on Rule 26(b)(4)(D) to limit the
testimony of their retained expert, Wirth, on certain subjects.

¶16           In relevant part, Rule 26(b)(4)(D) provides:

       In all cases including medical malpractice cases each side shall
       presumptively be entitled to only one independent expert on an
       issue, except upon a showing of good cause. Where there are
       multiple parties on a side and the parties cannot agree as to
       which independent expert will be called on an issue, the court
       shall designate the independent expert to be called or, upon
       the showing of good cause, may allow more than one
       independent expert to be called.

(Emphasis added.) Plaintiffs assert that “independent expert” is defined by
the Committee Comment to the 1991 amendment to Rule 26 (“Committee
Comment”), which states that an “independent expert” is “a person who
will offer opinion evidence who is retained for testimonial purposes and
who is not a witness to the facts giving rise to the action.” Plaintiffs also
point to the Committee Comment’s expression of Rule 26(b)(4)’s purpose,
which states in part that the rule exists to “avoid unnecessary costs inherent
in the retention of multiple independent expert witnesses.” (Emphasis
added.) Plaintiffs essentially ask this court to incorporate the definition of
“independent expert” from the Committee Comment into the rule, so that
the “one independent expert” rule becomes a “one retained expert” rule.

¶17           The trial court’s practical application of the rule was logical
and the limitation on Wirth’s testimony was carefully crafted by the court
based on Officer Garcia’s testimony. In one sense, Officer Garcia may have
been more “independent” than either side’s retained experts because he
was not paid by one side or the other to form his opinions and testify about
them. But the Committee Comment provides persuasive authority that

                                       6
                        FELIPE, et al. v. THEME, et al.
                            Opinion of the Court

“one independent expert” actually means “one retained expert.”                The
Committee Comment states in pertinent part:

               The amendment to Rule 26(b)(4) must be read in
       conjunction with the amendment to Rule 43(g).[1] The
       purpose of these two rules is to avoid unnecessary costs
       inherent in the retention of multiple independent expert witnesses.
       The words “independent expert” in this rule refer to a person who
       will offer opinion evidence who is retained for testimonial purposes
       and who is not a witness to the facts giving rise to the action. As
       used in this rule, the word “presumptively” is intended to
       mean that an additional expert on an issue can be used only
       upon a showing of good cause. Where an issue cuts across
       several professional disciplines, the court should be liberal in
       allowing expansion of the limitation upon experts established
       in the rule.
               ....

             This amendment to Rule 26(b)(4) in combination with
       Rule 43(g) and Rule 16(c)(3) is intended to discourage the
       unnecessary retention of multiple independent expert witnesses
       and the discovery costs associated with listing multiple
       cumulative independent experts as witnesses. . . .

(Emphasis added.)

¶18           Our appellate courts have not provided particularly clear
guidance on the meaning of “independent expert.” Two opinions of this
court have accepted the Committee Comment’s definition of “independent
expert,” although neither focused directly on whether an expert was
“independent” because the expert was “retained.” See In re Frankovitch, 211
Ariz. 370, 373-74, ¶¶ 9-12, 121 P.3d 1240, 1243-44 (App. 2005) (holding that
an expert presenting opinions formed as a result of statutory duties was
more akin to a fact witness than an expert witness); Ariz. Dep’t of Revenue v.
Superior Court, 189 Ariz. 49, 52-53, 938 P.2d 98, 101-02 (App. 1997) (holding
that an expert who is an employee of a party is not “independent”). Our


1 Before its abrogation in 2000, Rule 43(g) required that “[t]he Court shall
not permit opinion evidence on the same issue from more than one
independent witness per side, except upon a showing of good cause.”
(Emphasis added.)


                                        7
                      FELIPE, et al. v. THEME, et al.
                          Opinion of the Court

supreme court has not directly analyzed the meaning of “independent
expert,” although it has stated that published comments to rules of
procedure may clarify an ambiguous rule. See State v. Aguilar, 209 Ariz. 40,
48, ¶ 26, 97 P.3d 865, 873 (2004) (“a comment may clarify a rule's ambiguous
language” but “cannot otherwise alter the clear text of a rule”). The
supreme court has also relied on committee comments to assist it in
interpreting procedural rules. See, e.g., State v. Salazar-Mercado, 234 Ariz.
590, 592-93, ¶ 7-10, 325 P.3d 996, 998-99 (2014).


¶19            With the issue now squarely before us, we conclude that the
meaning of “independent expert” is ambiguous as used in Rule 26(b)(4)(D).
The phrase “independent expert” could include, as the trial court decided,
a witness such as Officer Garcia; or the phrase could mean a retained expert
who is independent of any party prior to retention. Although no direct
authority requires us to adopt the Committee Comment’s definition of
“independent expert,” we view this court’s and the supreme court’s
previous willingness to rely on Committee Comments as sufficiently
persuasive to adopt the Committee Comment’s definition of “independent
expert.”2 Therefore, we hold that an “independent expert” is a person who
is retained for the purpose of offering expert opinion testimony. Because
Officer Garcia was not retained by Plaintiffs, he was not Plaintiffs’
independent, retained expert on the speeds of the vehicles. By precluding
Wirth from testifying about the vehicles’ respective speeds, the trial court
erred in its application of Rule 26(b)(4)(D).

¶20           Defendants contend that irrespective of how we interpret
Rule 26(b)(4)(D), expert testimony still may be excluded if it is cumulative
of other evidence. And Defendants assert that such a discretionary
exclusion is exactly what the trial court did here. We conclude otherwise.

¶21          A trial court certainly has the discretion to prevent the
presentation of “cumulative evidence.” See Ariz. R. Evid. 403 (“The court
may exclude relevant evidence if its probative value is substantially
outweighed by a danger of . . . needlessly presenting cumulative

2 The Committee Comment we rely on here was submitted by the “Special
Bar Committee to Study Civil Litigation Abuse, Cost and Delay,” which
was appointed by the supreme court in 1990. The Committee’s proposed
rule changes were adopted by the supreme court in 1991, with the
Committee’s and Court’s comments included. See Court Comment to 1991
Amendment, Ariz. R. Civ. P. 26.1(a); Court Comment to 1991 Amendment,
Ariz. R. Civ. P. 26(b).
                                     8
                       FELIPE, et al. v. THEME, et al.
                           Opinion of the Court

evidence”). This discretion is recognized both by the Committee Comment
and Arizona case law as a distinct purpose of Rule 26(b)(4)(D). See Sanchez
v. Old Pueblo Anesthesia, P.C., 218 Ariz. 317, 322, ¶ 18, 183 P.3d 1285, 1290
(App. 2008) (recognizing the rule is intended to limit the presentation of
cumulative evidence); cf. Felder v. Physiotherapy Assocs., 215 Ariz. 154, 167-
68, ¶ 65-70, 158 P.3d 877, 890-91 (App. 2007) (discussing Rule 26(b)(4)(D) in
the context of whether expert opinion was “duplicative”).

¶22           Arizona case law has defined “cumulative evidence” as
evidence that “augments or tends to establish a point already proved by
other evidence.” State v. Kennedy, 122 Ariz. 22, 26, 592 P.2d 1288, 1292 (App.
1979) (citing State v. Turner, 92 Ariz. 214, 220-21, 375 P.2d 567, 571 (1962));
State v. Allen, 157 Ariz. 165, 177, 755 P.2d 1153, 1165 (1988). Similarly,
Black’s Law Dictionary defines “cumulative evidence” as “[a]dditional
evidence of the same character as existing evidence and that supports a fact
established by the existing evidence (esp. that which does not need further
support).” Black’s Law Dictionary 577 (7th ed. 1999).

¶23            As applied here, Wirth’s opinions would not be cumulative of
Officer Garcia’s opinions unless Officer Garcia’s opinions were
“established” and Wirth’s were substantially the same. The record reflects,
however, that Wirth’s speed opinions differed from Officer Garcia’s. Wirth
testified at trial that he had a different opinion about the speed of
Defendants’ vehicle and, according to a pre-trial deposition, Wirth used
different reconstruction methodologies than Officer Garcia, resulting in his
different opinions on the vehicles’ speeds. Specifically, Officer Garcia
testified that Defendants’ truck was traveling at 33 miles per hour, but
Wirth concluded that the truck was traveling 37 to 42 miles per hour. The
speed limit on Adams for Defendants’ truck was 35 miles per hour.
Additionally, Officer Garcia concluded that the Plaintiffs’ vehicle was
traveling at 18 miles per hour at the point of impact, but Wirth testified in
deposition that this vehicle was traveling at 15 to 18 miles per hour. In the
context of this case, these differences in opinion about speed were not
trivial. Although we recognize that allowing Wirth’s opinions on the
speeds of the vehicles would result in more than one expert opinion on
these issues, Wirth’s opinions were not the same as Officer Garcia’s, and
therefore they were not “cumulative evidence” as defined in Kennedy.

¶24           To summarize, in light of our interpretation of Rule
26(b)(4)(D), the trial court erred in limiting Wirth’s expert opinions. We
also reject Defendants’ reading of the record that the trial court limited
Wirth’s opinions on the entirely independent basis of the court’s

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                       FELIPE, et al. v. THEME, et al.
                           Opinion of the Court

discretionary authority to limit needless cumulative evidence. Wirth’s
speed and reconstruction opinions were meaningfully different from
Officer Garcia’s and therefore not cumulative. Plaintiffs were entitled
under Rule 26(b)(4)(D) to present their retained expert’s opinions regarding
the speeds of the vehicles and related conclusions from his reconstruction
of the accident. The trial court’s error was prejudicial to Plaintiffs in their
effort to prove negligence, and they are therefore entitled to a new trial.

¶25          Although remand is necessary, there are two more issues that
are appropriate for this court to resolve.

II.    Human Factors Expert Motion in Limine

¶26           Plaintiffs argue the trial court abused its discretion by
precluding expert testimony on Sandoval’s alleged cell phone use and the
potential effects of such use. We review a trial court’s evidentiary rulings
for an abuse of discretion. Higgins v. Assmann Electronics, Inc., 217 Ariz. 289,
298, ¶ 35, 173 P.3d 453, 462 (App. 2007).

¶27            Plaintiffs contend the trial court erred in finding that no
foundation existed for expert testimony on the effects of cell phone usage
while driving, pointing to “multiple forms of evidence” that Sandoval was
possibly using a cell phone at the time of collision. As recited by Plaintiffs,
this evidence includes: (1) an alleged change in story by Sandoval
regarding whether he saw Plaintiffs’ vehicle before the collision; (2)
Sandoval’s failure to provide “any reason as to why he failed to slow down,
brake, or take any other evasive action prior to the [collision];” (3)
eyewitness evidence that Sandoval “was on his cell phone immediately
after the accident;” and (4) cell phone records from Sandoval’s cell phone
company and 911 call records from the Phoenix Police Department,
indicating that a short period of possible overlap existed between the time
Sandoval initiated a call to his father and the time an eyewitness called 911.
Plaintiffs rely on State v. Plew, 155 Ariz. 44, 745 P.2d 102 (1987), to argue
that, even without “conclusive evidence,” there was enough evidence in the
record for a jury to believe that Sandoval was using a cell phone at the time
of the collision with Plaintiffs.

¶28           The first three items of evidence proffered by Plaintiffs are too
speculative to show that Sandoval was using a cell phone at the time of the
collision. Regarding the cell phone and police department records, we
agree that Plew’s guidance is relevant. In Plew, our supreme court held that
in reviewing preliminary questions under Evidence Rule 104, a trial court

                                      10
                       FELIPE, et al. v. THEME, et al.
                           Opinion of the Court

is “’limited to asking whether evidence in the record . . . would permit a
reasonable person to believe’ the evidence on the preliminary questions.”
Id. at 50, 745 P.2d at 108 (quoting State v. LaGrand, 153 Ariz. 21, 28, 734 P.2d
563, 570 (1987)). Under Evidence Rule 104(b), “[w]hen the relevance of
evidence depends on whether a fact exists, proof must be introduced
sufficient to support a finding that the fact does exist.” Our determination
therefore rests on whether the cell phone and 911 records are sufficient to
find that Sandoval was using a cell phone at the time of the collision.

¶29             The cell phone records show that one phone call, lasting 13
minutes, was made from Sandoval’s cell phone around the time of the
collision. The records also indicate that no calls were received around that
time, nor were text message or voicemail features used. Sandoval testified
in deposition and at trial that he placed the phone call after the collision,
and an eyewitness likewise testified that she saw Sandoval get on the phone
after the collision. Sandoval’s father testified that Sandoval called him and
told him he had been in an accident. No witnesses testified that Sandoval
was using a cell phone at or before the time of the collision. According to
the Phoenix Police Department records, the 911 call reporting the collision
was received between 5:02:30 p.m. and 5:03:29 p.m. Sandoval’s cell phone
records indicated that the call placed from his cell phone began between
5:03:00 p.m. and 5:03:59 p.m. From this evidence, Plaintiffs assert a
“material and disputed fact issue” existed that the jury should have been
allowed to resolve.

¶30            A review of the “time stamps” for Sandoval’s call and the 911
call reveals that, for Sandoval to have been on the phone at the time of the
accident, he would have had to begin his phone call at or seconds after
5:03:00 p.m., before the accident occurred; the accident must have then
happened and Sandoval remained on the phone as he got out of the truck;
and then the witness called 911 before 5:03:29 p.m. On this record,
Plaintiffs’ proffered interpretation of the evidence is neither reasonably
possible nor persuasive. The trial court did not abuse its discretion in
concluding that allowing Plaintiffs’ human factors expert to testify about
cell phone usage would, on this record, sanction speculation and violate
either Evidence Rule 402, 403, or both. Accordingly, the trial court did not
err in excluding the human factors expert.

III.   Punitive Damages

¶31        Plaintiffs assert that the trial court erred in granting summary
judgment on their claim for punitive damages. We review a grant of

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                      FELIPE, et al. v. THEME, et al.
                          Opinion of the Court

summary judgment de novo, “viewing the evidence and reasonable
inferences in the light most favorable to the party opposing the motion.”
Andrews v. Blake, 205 Ariz. 236, 240, ¶ 12, 69 P.3d 7, 11 (2003).

¶32           Punitive damages may be appropriate when evidence shows
that a defendant consciously and deliberately “acted with an evil mind”
and such action caused tortious harm as a result. See Thompson v. Better-Bilt
Aluminum Products Co., Inc., 171 Ariz. 550, 556, 832 P.2d 203, 209 (1992);
Rawlings v. Apodaca, 151 Ariz. 149, 162-63, 726 P.2d 565, 578-79 (1986);
Linthicum v. Nationwide Ins. Co., 150 Ariz. 326, 330-31, 723 P.2d 675, 679-80
(1986). A motion for summary judgment on a punitive damages claim must
be denied “if a reasonable jury could find the requisite evil mind by clear
and convincing evidence.” Thompson, 171 Ariz. at 558, 832 P.2d at 211.

¶33           Plaintiffs’ punitive damages claim is based primarily on the
allegation that Sandoval was using a cell phone at the time of the accident.
Based on this record, including our affirming of the trial court’s exclusion
of testimony from the human factors expert, Plaintiffs cannot show that
Defendants acted with the requisite evil mind to justify an award of
punitive damages. The trial court did not err by granting summary
judgment on this issue.

                              CONCLUSION

¶34           Because the trial court erred in its application of the one
independent expert limitation under Rule 26(b)(4)(D), we vacate the
judgment and remand for further proceedings. We affirm the trial court’s
preclusion of testimony from a human factors expert on the issue of alleged
cell phone usage by Sandoval preceding the collision. We also affirm
summary judgment for Defendants on the issue of punitive damages. We
need not reach any additional issues or arguments raised by Plaintiffs on
appeal. Plaintiffs may recover their taxable costs incurred on appeal upon
compliance with Arizona Rule of Civil Appellate Procedure 21.




                                  :gsh



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