United States District Court, D. Arizona
ORDER
DOMINIC W. LANZA UNITED STATES DISTRICT JUDGE
Pending
before the Court is Plaintiffs' motion re: disputed jury
instructions. (Doc. 129.) The motion is fully briefed and
nobody has requested oral argument. For the following
reasons, the motion will be denied.
BACKGROUND
This
case arises from a March 12, 2016 traffic accident that
resulted in the instantaneous death of Johnathan Blyler
(“the Decedent”). The vehicle that struck the
Decedent's vehicle was a tractor-trailer being driven by
Steven Robertson, an employee of Ameri-Can Freight Systems,
Inc. (collectively, “Defendants”). The plaintiffs
are the Decedent's mother, Zandra Manion, and the
Decedent's wife, Lisa Blyler. (Doc. 1-2 at 5-16
[complaint].)
On
September 27, 2017, Defendants filed their answer to the
complaint. (Doc. 10.) Among other things, the answer raises
22 affirmative defenses. (Id. at 7-10.) Several of
these affirmative defenses rest upon the theory that the
Decedent's own negligence contributed to the accident.
For example, the first affirmative defense is that the
Decedent “was guilty of carelessness, recklessness,
negligence or fault on his own part which caused or
contributed to the accident.” (Id. at 7.) The
third affirmative defense is that “Plaintiffs'
claims are barred, in whole or in part, by the doctrines of
comparative negligence and contributory negligence. The
damages alleged by Plaintiffs should be apportioned according
to the contributory and comparative fault of [the Decedent] .
. . .” (Id.) And the fifth affirmative defense
is that the Decedent “did not exercise ordinary care,
caution or prudence to avoid said accident and the resulting
injuries . . . were directly and proximately contributed to
and caused by the fault, carelessness and negligence of [the
Decedent].” (Id. at 8.) The answer
doesn't, however, specifically identify negligence
per se as one of the affirmative defenses. It also
doesn't identify any Arizona traffic statutes that the
Decedent allegedly violated.
On
February 9, 2018, Defendants served their first set of
supplemental responses pursuant to the Mandatory Initial
Discovery Pilot (“MIDP”) program. (Doc. 131-1 at
2-24.) In response to the query “For each of your
claims or defenses, state the facts relevant to it and the
legal theories upon which it is based, ” Defendants
stated that the Decedent's “2005 Jeep Wrangler was
stopped in lane #2 without any hazard lights on. The
Freightliner struck the back of the Jeep whereupon the Jeep
exploded.” (Id. at 19.) Defendants further
stated that the Decedent's “2005 Jeep Wrangler was
not properly maintained as it was stopped in the middle of a
busy highway.” (Id. at 21.) Defendants also
generally disclosed they were pursuing a theory of
comparative negligence but didn't specifically identify
(or disavow) negligence per se as part of the
foundation for this defense. (Id. at 19-22.)
On
August 17, 2018, one of Plaintiffs' experts, Michael
Shepston, issued his report. (Doc. 131-4 at 2-10.) Among
other things, this report stated that “the
[Decedent's] vehicle was going approximately 11 miles her
hour at the time of impact.” (Id. at 6.)
On
September 21, 2018, one of Defendants' experts, Dr. David
Krauss, issued his report. (Doc. 131-2 at 2-10.) This report
described the accident as one “in which a
tractor-trailer rear ended a stopped or slowed Jeep on the
highway.” (Id. at 2.)
On
September 21, 2018, another one of Defendants' experts,
Stanley Fridley, issued his report. (Doc. 131-3 at 2-10.)
This report stated that “[t]he Jeep's damage and
post-impact motion were consistent with the Jeep being
stopped or nearly stopped at impact.” (Id. at
5.)
On
November 28, 2018, Defendants sent a set of requests for
admission (“RFAs”) to Plaintiffs. (Doc. 129 at
3.)[1]
Among other things, these RFAs asked whether Plaintiffs would
admit that “A.R.S. § 28-873(A)(15) applied to [the
Decedent] at the time of the accident” and whether
Plaintiffs would admit “that A.R.S. § 28-704(A)
applied to [the Decedent] at the time of the accident.”
(Id.) Plaintiffs denied both requests.
(Id.) This appears to be the first time that either
statute was specifically referenced by Defendants in this
case. (Id.)
On
August 21, 2019, the parties submitted their proposed jury
instructions. (Doc. 124.) This filing identified only two
disputed instructions. In the first disputed instruction,
Defendants request an instruction that, if the jury finds
that the Decedent violated A.R.S. § 28-873(A)(15), which
prohibits “stopping” on a highway “except
for emergency reasons, ” it must find the Decedent was
negligent and “then determine whether that negligence
was a cause of injury.” (Id. at 20.)
Similarly, in the second disputed instruction, Defendants
request an instruction that, if the jury finds that the
Decedent violated A.R.S. § 28-704, which prohibits, with
exceptions, driving “at such a slow speed as to impede
or block the normal and reasonably movement of traffic,
” it must find the Decedent was negligent and
“then determine whether that negligence was a cause of
injury.” (Id. at 21.) Plaintiffs object to
both instructions because they were “not disclosed as .
. . defense[s] in Defendants' responses to MIDP.”
(Id. at 20, 21.)
On
August 26, 2019, the Court held the Final Pretrial
Conference. (Doc. 127.) During this hearing, the Court
ordered the parties to file supplemental briefing concerning
the disputed jury instructions (id. at 2), which
they have now done (Docs. 129, 131, 132).
DISCUSSION
In
their motion, Plaintiffs don't dispute the legal accuracy
of the proposed jury instructions and don't dispute that
Arizona law generally recognizes the concept of negligence
per se. (Doc. 129.) Instead, Plaintiffs object on
late-disclosure grounds. Specifically, Plaintiffs contend
that Defendants should have disclosed, in their answer and in
their MIDP disclosures, that they were pursuing a negligence
per se theory based upon the two traffic statutes;
that Plaintiffs reasonably concluded, based on the absence of
such a disclosure, that Defendants weren't pursuing such
a theory; and that it would be unfairly prejudicial to allow
Defendants to pursue such a theory now because Plaintiffs
didn't pursue certain steps during the discovery process
(such as interviewing lay witnesses, hiring ...