Manion v. Ameri-Can Freight Systems Inc.

          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 ...