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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


              BRANDON K. ANDERSON, Plaintiff/Appellant,

                                        v.

     UNION PACIFIC RAILROAD COMPANY, Defendant/Appellee.

                             No. 1 CA-CV 19-0420
                              FILED 8-18-2020


           Appeal from the Superior Court in Maricopa County
                          No. CV2014-095147
               The Honorable Janice K. Crawford, Judge

                                  AFFIRMED


                                   COUNSEL

Rabb & Rabb PLLC, Tucson
By Lloyd L. Rabb, III, Matthew L. Rabb
Counsel for Plaintiff/Appellant

Beaugureau Hancock Stoll & Schwartz PC, Phoenix
By Anthony J. Hancock, W. Reed Campbell
Counsel for Defendant/Appellee
                     ANDERSON v. UNION PACIFIC
                         Decision of the Court



                      MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Chief Judge Peter B. Swann
joined.


H O W E, Judge:

¶1           Plaintiff Brandon K. Anderson appeals from a final judgment,
entered after a jury trial, in favor of defendant Union Pacific Railroad
Company. For the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2            Anderson worked for Union Pacific as a railroad signal
helper. In December 2011, he was assigned to work with a signal
maintenance crew in Casa Grande, Arizona. He and his crew arrived at
their assigned job site but could not begin working until another crew
completed its work. The crew’s foreman asked Anderson to clean “line
trucks” while they waited. Anderson climbed into the backseat area of his
crew’s quad cab Ford F-350 to retrieve cleaning supplies. As Anderson
climbed out of the truck, he “rolled his ankle” on a rock. He later underwent
three surgeries to his ankle.

¶3             In November 2014, Anderson sued Union Pacific under the
Federal Employers Liability Act, alleging that Union Pacific breached its
duty to provide safe equipment, adequately staff its workforce, and
conduct its operations in a reasonably safe manner. He further alleged that
Union Pacific breached its duty by failing to equip the Ford F-350 with
appropriate handholds and safety steps to allow safe entrance and exit as
well as a utility box in the bed of the truck to store equipment.

¶4            Before trial, Anderson moved to preclude expert testimony
that the Ford F-350 met Federal Motor Vehicle Safety Standards for
Production (“FMVSP”) and Ford Motor Company’s Internal Standards for
Production, but the court denied the motion. As trial approached, Drew
Hull, the mother of Anderson’s child, received a copy of Anderson’s
deposition as part of a family court case involving Anderson. She contacted
Union Pacific, and Union Pacific subsequently amended its trial witness list
to include Hull.



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                     ANDERSON v. UNION PACIFIC
                         Decision of the Court

¶5            Hull then participated in two video-recorded depositions.
Hull testified that in connection with a custody mediation in the family
court case, Anderson stated that “he wouldn’t have to work ever again”
and that “he would be getting a settlement from the railroad[.]” Anderson
objected to those statements on hearsay grounds. Hull also testified that she
contacted Union Pacific because Anderson’s deposition testimony that she
reviewed was “blatantly wrong” and full of “inaccuracies” and “deceit.”
Anderson objected to those statements on relevance grounds.

¶6             Before the court played the deposition testimony at trial,
Anderson moved to reconsider the decision overruling his objections.1 He
argued that Hull’s statements about the truthfulness of Anderson’s
testimony were irrelevant and that other parts of her testimony were
privileged under A.R.S. § 12–2238, which provides that communications
made during a mediation are confidential. The court denied the motion,
concluding that Anderson had waived the mediation privilege because he
failed to assert it during Hull’s depositions and that Hull’s statements about
Anderson’s truthfulness were relevant to Hull’s reason for contacting
Union Pacific. Following the seven-day trial, the jury returned a verdict in
favor of Union Pacific. Anderson appealed.

                               DISCUSSION

              1. Admissibility of Testimony

¶7             Anderson maintains that the trial court erred in ruling that he
had waived the Arizona mediation privilege defined in A.R.S. § 12–2238.
We review challenges to the trial court’s admission or exclusion of evidence
for an abuse of discretion or legal error and prejudice. Zimmerman v.
Shakman, 204 Ariz. 231, 235 ¶ 10 (App. 2003). An abuse discretion exists
when the record, viewed in the light most favorable to upholding the
court’s ruling, is devoid of any evidence to support its ruling. Hurd v. Hurd,
223 Ariz. 48, 51 ¶ 19 (App. 2009).

¶8            Here, the record reflects that during Hull’s depositions,
Anderson did not object to Hull’s testimony on the basis of privilege;
instead, he objected to the admission of this evidence on hearsay grounds.
He did not raise the privilege issue until moving to reconsider the denial of
his motion in limine. By his failure to properly and timely object on the


1      At some point after Union Pacific indicated that it would offer Hull’s
deposition testimony in evidence, the trial court had overruled Anderson’s
objections by notations in the margin of the deposition transcript.


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                      ANDERSON v. UNION PACIFIC
                          Decision of the Court

privilege ground, he waived the privilege claim. See Throop v. F.E. Young &
Co., 94 Ariz. 146, 157 (1963) (party can waive privilege by failing to properly
object at trial). Thus, the trial court neither erred nor abused its discretion
in admitting Hull’s testimony and ruling that Anderson waived the
mediation privilege.

¶9           Anderson contends nonetheless that a failure to timely object
on the proper basis cannot waive the mediation privilege. He relies on
Grubaugh v. Blomo ex rel. Cty. of Maricopa, which held that the filing of an
attorney malpractice action did not waive the mediation privilege under
A.R.S. § 12–2238(B). 238 Ariz. 264, 266 ¶ 7 (App. 2015). But that decision
found that the filing of a malpractice claim by one party to a mediation
against third parties did not, by itself, waive the statutory mediation
privilege. Here, Anderson failed to assert his statutory privilege during
Hull’s depositions and even then, only raised it in a motion to reconsider
rulings on motions in limine. By that time, the privileged information had
long been disclosed, and without a timely effort to maintain its secrecy, the
privilege was destroyed. Grubaugh does not abrogate the general rule that
parties waive a privilege by failing to timely assert it. Throop, 94 Ariz. at 157.
And finding waiver here by Anderson’s failure to timely raise the privilege
does not undercut the “strong policy of confidentiality for the mediation
process” recognized in Grubaugh. 238 Ariz. at 270 ¶ 20. Anderson’s
argument therefore fails.

¶10            Anderson also challenges the trial court’s decision to admit
certain statements that commented on the truthfulness of Anderson’s
deposition testimony. He specifically argues that a few of Hull’s statements
were impermissible under Arizona Rule of Evidence (“Rule”) 608 because
they commented on the truthfulness of another witness’s specific
testimony. Rule 608 allows, with specified limitations, admission of
evidence to impeach a witness’s credibility. Hull’s statements, however,
were neither offered nor admitted to impeach Anderson’s credibility. Hull’s
statements were instead offered as evidence of Hull’s reason for contacting
the defendant. Indeed, the court instructed the jury that it must not consider
Hull’s testimony to prove Anderson’s truthfulness, but that it could
consider her testimony as it related to her reason for contacting Union
Pacific. Jurors are presumed to follow the court’s instructions. State
v. Johnson, 247 Ariz. 166, 204 ¶ 155 (2019). Thus, we need not decide whether
the statements were admissible under Rule 608. Nor has Anderson shown
the trial court abused its discretion in assessing the relevance and danger of
unfair prejudice in admitting these passing references. See Ariz. R. Evid.
401, 403.



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                      ANDERSON v. UNION PACIFIC
                          Decision of the Court

¶11           Anderson also argues that the trial court’s limiting instruction
was insufficient. But the record shows that the court’s limiting instruction
clearly informed the jury that it could consider Hull’s testimony only to the
extent it showed Hull’s reason for contacting the defendant. As such, the
court’s instruction was sufficient to inform the jury of the limitations placed
on its consideration of the evidence.

¶12            Anderson next challenges the trial court’s decision to admit
evidence that the truck met FMVSP and Ford Motor Company’s Internal
Standards for Production, contending that this evidence was irrelevant.
Evidence is relevant if it has any tendency to make a fact of consequence
more or less probable. Ariz. R. Evid. 401. Here, Anderson alleged that
Union Pacific was negligent because it supplied its employees a truck that
did not have any safety steps or utility boxes. By doing so, Anderson at least
implicitly alleged that the Ford F-350 was unfit or unsafe for use as a crew
truck in its stock condition. Evidence that the Ford F-350 complied with
FMVSP and Ford’s manufacturing and design standards was relevant to
determining whether the truck was unsafe in its condition.

              2. Jury Instructions

¶13            Anderson contends that the trial court erred in giving
instruction No. 11, which provided that “[s]tanding alone, the mere fact that
an accident happened does not permit you to draw the inference that the
accident was caused by anyone’s negligence.” He maintains that the
instruction constitutes an impermissible unavoidable accident instruction.2
But the instruction is not an unavoidable accident instruction. The wording
of the instruction is similar to the language used in Bliss v. Treece, 134 Ariz.
516 (1983). There, the trial court instructed the jury that “[t]he fact that a
collision happened does not necessarily mean that someone was
negligent[.]” Id. at 520. The Court held that the instruction fell short of being
an unavoidable accident instruction because it referred only to the absence
of negligence. Id. at 521. As such, this argument fails.




2      Anderson argues, in the alternative, that the court erred in giving
instruction No. 11 because the Federal Employer’s Liability Act does not
require a finding of proximate cause and the instruction prohibited the jury
from making a permitted inference under FELA. This argument is waived,
however, because Anderson raises it for the first time on appeal. See Orfaly
v. Tucson Symphony Soc’y, 209 Ariz. 260, 265 ¶ 15 (App. 2004).


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                    ANDERSON v. UNION PACIFIC
                        Decision of the Court

                              CONCLUSION

¶14           For the foregoing reasons, we affirm. As the prevailing party,
Union Pacific is awarded his costs on appeal upon compliance with Arizona
Rule of Civil Appellate Procedure 21.




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




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