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Evidence—Admissibility of Disclosure Statement and Expert Affidavits

Ryan v. San Francisco Peaks Trucking Co., Inc., __Ariz. Adv. Rep.__ 1CA-CV 10-0016 (App. Div. I, August 25, 2011) (J. Brown)

PLAINTIFF'S ALLEGATIONS IN DISCLOSURE STATEMENT AND PLAINTIFF'S EXPERT AFFIDAVITS ESTABLISHING MEDICAL NEGLIGENCE OF SETTLING DEFENDANT ADMISSIBLE TO ESTABLISH NONPARTY AT FAULT ALLEGATION BY NONSETTLING DEFENDANT Plaintiff brought a wrongful death action against San Francisco Peaks Trucking Co., Inc. [SFP] alleging negligence in the operation of a semi-tractor-trailer caused the decedent's death. Subsequently plaintiff brought a second lawsuit alleging medical malpractice by health care providers caused the death. The two actions were consolidated. Plaintiff settled with all the healthcare providers. SFP then named the doctors as nonparties at fault and attempted to prove their fault with plaintiff's medical experts. The trial court ruled that SFP could not compel plaintiff's experts to testify on its behalf but that SFP could introduce allegations in plaintiff's disclosure statement and plaintiff's expert affidavits to meet its burden of proof on the nonparty at fault issue. The jury found for SFP. The Arizona Court of Appeals affirmed. The court of appeals found that under Arizona Rule of Evidence 801 (d) (2) an admission by a party is not hearsay and may be offered as affirmative evidence of the truth of the matter. Factual allegations in a complaint and disclosure statement are evidentiary admissions and therefore admissible. As such, while admissible at trial they were not conclusive of fault and plaintiff was free to submit contrary evidence and argue contrary to the admissions. The jury should then weigh the evidence and determent what significance to give the statements. The court noted that this result ensures that parties are held accountable for their pleadings and disclosures and prevents a party from benefiting from inconsistent positions such as where a party claims another is responsible for her damages, settles with that party then claims otherwise. In a footnote the court noted that even if not admissions these materials could be introduced as impeachment. It is important to note that the plaintiff did not contest the admissibility of the expert affidavits and the court specifically noted that “nothing prevented [plaintiff] from amending her affidavits or disclosing additional information advising SFP that her expert affidavits were based upon limited facts.” The question regarding the consolidation of these claims and the longstanding rule that a tortfeasor causing injury or death cannot escape liability based upon subsequent medical care were not addressed in the opinion. This later rule has yet to be squarely addressed by the Arizona appellate courts since the enactment of UCATA. Its continued viability appears less certain.

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