[00:00:24] Speaker 04:
Good morning and may it please the Court. My name is Charles Workin. I represent the appellants STI Trucking and Alex Kim.

[00:00:32] Speaker 04:
It is my hope to reserve five minutes for rebuttal and possibly addressing the issues in the cross appeal. The judgment in favor of the plaintiff should be reversed in this case for any or for all of the reasons discussed in the appellant's briefs. Three of those reasons are incontrovertible. One is the lack of expert testimony as to causation. The other is the resulting excessive damages. And the third is the failure to instruct the jury regarding comparative fault.

[00:01:04] Speaker 04:
Allow me to explain.

[00:01:05] Speaker 03:
The first two are really the same reason, aren't they? They are linked. Well, I mean, to put it differently, if there was sufficient evidence as to causation... Do you have a separate argument about why the damages were... I do not, Your Honor. So two is dependent on one, correct? All right. So let's turn... Please turn to that.

[00:01:27] Speaker 04:
To causation. First, to address the court's focus order.

[00:01:31] Speaker 04:
Medical evidence of multiple, merely possible causes of an injury is insufficient.

[00:01:41] Speaker 04:
Without expert testimony, Any other evidence of causation or other circumstances indicating causation is irrelevant.

[00:01:54] Speaker 03:
What do you do with the language in, I guess what I would call Coca-Cola 2, which appears not only in that case, but as I recounted in half a dozen Arizona cases, including an Arizona Supreme Court case that says, If there's evidence of the possibility and other evidence that allows you to draw the conclusion of causality, that's enough. Well, and I was going to call it Fitzgerald.

[00:02:22] Speaker 04:
Probably a better name for it. To distinguish it from the other Coca-Cola case that we've cited.

[00:02:30] Speaker 04:
But how do you square... The mention of mere possibility with the other cases that require expert testimony.

[00:02:37] Speaker 03:
Well, see, as I read Fitzgerald, it says we normally require expert testimony. Of course, there's one exception, which is that when it's so obvious, he had an arm before the accident and he lost it. It wasn't there afterwards. We don't need it. But there's a third category, Fitzgerald seems to say. If you've got medical evidence that it's possible and the other evidence would allow a reasonable finder of fact to find causality, we won't disturb the jury verdict. And the court says that Not here, but so many times in different cases that it can't just be stray language.

[00:03:13] Speaker 04:
But in Fitzgerald, there was medical testimony. And in all the other cases that are cited in this case, there was medical testimony. There is not a case that finds causation on the mere basis of some comment in a medical record.

[00:03:29] Speaker 00:
Well, counsel, isn't it more than just a little comment? I mean, for one thing, the...

[00:03:35] Speaker 00:
diagnosis is stated as a new diagnosis and then immediately following the phrase new diagnosis is the explanation that there was a trauma given the motor vehicle accident and there's additional commentary. But it seems more than a sort of passing phrase.

[00:04:01] Speaker 04:
And I didn't quite hear the source you were referencing.

[00:04:04] Speaker 00:
I'm looking at Dr. Clavel's. Okay, thank you. Yes. I'm sorry. I should have started there.

[00:04:12] Speaker 00:
Her notes.

[00:04:13] Speaker 04:
Okay. Yes. Dr. Clavel's record does not suffice. It mentions three alternative causes. One is a motor vehicle accident. One is something that is referred to by the initial CSR. And the other is idiopathic. Nobody knows.

[00:04:29] Speaker 04:
And...

[00:04:30] Speaker 01:
Can you refer us to what particular ER site you're looking at? It's 1290, I believe.

[00:04:36] Speaker 04:
I'm looking at page 1290 of the record, and that's part of Exhibit 27C. Dr. Clavel does not conclude that the motor vehicle accident is the cause. In fact, Dr. Clavel goes on at page 1384 to say that CSR is the most likely cause. And keep in mind that we're dealing here in a context of a gentleman who has a pre-existing condition. He had blurry vision beforehand, and he had an acute loss of vision in the left eye before the accident.

[00:05:12] Speaker 03:
Let me understand your position, because it seems to me you might be arguing one of two things.

[00:05:17] Speaker 03:
One is that, notwithstanding what Fitzgerald says, it's not enough if there's medical testimony that it's merely a possibility. the medical testimony must be to a reasonable degree of certainty. It cost it. Is that your position?

[00:05:34] Speaker 04:
Yes, Your Honor.

[00:05:35] Speaker 03:
So it really doesn't matter to your argument whether Dr. Clavel's information comes from her medical records, which were admitted into evidence, or whether she said it on the stand. If she were on the stand and said exactly the same thing, your view is that that would be insufficient? Without anything more, that's right. Okay. Now, I'm still stuck with... What am I to make of the language in these cases that say the possible, not even the probability, but the possibility is enough if other evidence would allow a rational finder of fact to draw the link?

[00:06:11] Speaker 04:
I suggest to you that that word possible or possibility is used loosely in those cases. And the issue in those cases was not the issue that's in this case. And again, in those other cases, there was testimony.

[00:06:25] Speaker 03:
So wasn't there only testimony about the possibility? In those cases, not to a reasonable degree of medical certainty.

[00:06:34] Speaker 04:
The cases don't give us enough detail to know what was said on the stand. And one would assume that when the doctor is testifying, there's a sufficient foundation laid and he or she is being asked to testify to a reasonable degree of medical certainty. Otherwise, it's not admissible. So...

[00:06:58] Speaker 04:
So, and then you've got to square those cases that use the word possible or possibility with other cases that require expert testimony. And at bottom here, Your Honors, the jury cannot be left to speculate, which is where the position in which they were left in this case, because you've got, again, as I said, three possible causes and this background of a preexisting condition.

[00:07:29] Speaker 04:
And the jury was instructed that it cannot speculate. And I refer you to the supplemental excerpts of record at age 24 for that instruction. Yes.

[00:07:39] Speaker 01:
So in Montauk, we had, I think, facts that are similar to the facts here, which is, or maybe they're not factually similar in terms of the condition, but there the plaintiff had a history of dizziness and had medical records that indicated that that preceded the accident. And yet, in that case, the Court of Appeals also held that an expert testimony was not necessary for the jury to conclude causation. So I'm still, and maybe I'm asking you the same question that you've tried to answer from Judge Hurwitz, but I'm not understanding how we can distinguish those cases from the facts that we have here, finding that there's at least some evidence that was present it to the jury with respect to the cause of this injury, and with that information, it's sufficient for the jury to reach the conclusion that was caused by this particular accident.

[00:08:36] Speaker 04:
May I ask you, which case were you just referring to?

[00:08:38] Speaker 01:
Montag v. Deagle, or Montague v. Deagle. That's 462P, second, 403. Okay. Well, again...

[00:08:50] Speaker 01:
Are you familiar with that case, counsel?

[00:08:53] Speaker 04:
I think my recall on that one is failing me.

[00:08:57] Speaker 04:
But there was medical testimony in that case?

[00:09:01] Speaker 01:
There was no expert testimony, and the Court of Appeals held that a jury did not need an expert to conclude that an accident caused the plaintiff's dizziness. And there was a condition. That was the subject of the claim that preceded the accident at issue.

[00:09:18] Speaker 04:
That sounds like a situation where the exception applies, where the cause is apparent and expert testimony isn't needed, if I understand your summary of the case.

[00:09:28] Speaker 01:
Right, and I think my question is, how is that any different than the facts that we have before us in this case?

[00:09:33] Speaker 04:
Because we don't have a condition, the cause of which is readily apparent to a lay juror, to any juror. and this is a, it's obviously something of a mystery what the causation was, because the doctor herself cannot pin any one of these, well, in fact, she does attribute one of them as being the most likely cause, and that is the so-called CSR, not the motor vehicle accident, and not something idiopathic, but you've got this menu of causes in front of the jury, one of which the doctor emphasizes.

[00:10:12] Speaker 04:
How is the jury to choose between them without speculating, which they're not allowed to do? Because it isn't apparent. This isn't like Coca-Cola One with the drinking of the contaminated Coke. It's not like the dental case.

[00:10:30] Speaker 00:
I'm not sure why that's true. If some individual...

[00:10:36] Speaker 00:
had a concussion, basically smacked his head, and then had blurry vision right then. I'm not sure why that's not obvious.

[00:10:46] Speaker 04:
Well, here, it might be obvious if those were the only facts in this case, but they are not.

[00:10:52] Speaker 00:
No, because he had blurry vision earlier, but that's just like the case that Judge Desai is talking about. I mean, if I had a broken arm four years ago and I'm in an accident and I break my arm, it sort of doesn't matter that I had the same condition four years earlier. I really don't understand why it's not obvious in this instance.

[00:11:13] Speaker 04:
Well, I submit to you that a broken arm is a bad example.

[00:11:16] Speaker 00:
It's just an example. It's a bad example, but I guess I still don't understand why it's not obvious.

[00:11:27] Speaker 04:
Well, it...

[00:11:31] Speaker 04:
We're talking about the cause of the blurry vision, which already existed.

[00:11:39] Speaker 00:
But it didn't exist at the immediate moment before the motor vehicle accident.

[00:11:47] Speaker 00:
It didn't exist in the same form.

[00:11:52] Speaker 00:
but right before the accident.

[00:11:54] Speaker 04:
Oh, I think it did exist in the same form.

[00:11:57] Speaker 03:
He had, and we recite the history of his... Yeah, but you do recite it, but doesn't that suggest that in May he had an eye test that was essentially normal, and that one month after the accident he had an eye test that was grossly not normal? I mean, it does appear indisputable that the measurement of his vision... got worse in the aftermath of the accident.

[00:12:24] Speaker 04:
Well, where is the doctor to make the causal link there? There isn't.

[00:12:29] Speaker 03:
And I don't think in these circumstances... So if I were to agree to you that it's not obvious, your position is that all this language in Coca-Cola and the half-dozen other cases that say it's enough if there's medical evidence and it's a possible cause really doesn't apply.

[00:12:51] Speaker 04:
Well, again, Your Honor, I think possible is used too loosely in those cases.

[00:12:55] Speaker 03:
So you think possible means there has to be medical testimony that it is the probable cause?

[00:13:00] Speaker 04:
Yes, as there was in those cases. So, and I think I might move on.

[00:13:12] Speaker 04:
to the issue of the lack of comparative fault instructions. Can I ask you some procedural questions about that?

[00:13:19] Speaker 03:
Of course. For a second, before we get to whether or not the evidence warranted that instruction.

[00:13:25] Speaker 03:
At some point, there was submitted to the judge a set of proposed instructions that said no comparative fault instruction. And it appears that, and you didn't try the case, so when I say you, I mean your side. Yes, I understand. Well, sometimes people say it's not my fault, and it's not your fault. But nobody objected. In fact, your side said, yes, that's right, that's what we've agreed to. And then later on, there were proposals for a comparative fault instruction.

[00:13:57] Speaker 03:
I'm just trying to figure out whether or not, given the way this case progressed, that issue is in front of us.

[00:14:04] Speaker 04:
Yes, it is. And it's, you know, Rule 51 allows the court to add instructions at any time before... But it doesn't require the court to.

[00:14:15] Speaker 03:
And so here's a circumstance where they're not submitted in accordance with the court's standing order. Indeed. And not only are they not submitted, but there's some indication agreed to by both parties that there isn't going to be a comparative fault instruction in this case. I mean... It says no comparative fault instruction. And your side says, yeah, that, you know, we sort of, I don't know if they say we agree, but yes, we, you know, we don't have any objection to what he's put in. And now late in the case, you come in with a request for one.

[00:14:48] Speaker 03:
Why is that?

[00:14:50] Speaker 03:
Why should the judge consider it? I know she did. But why should she?

[00:14:55] Speaker 04:
Because this is such a substantive right and because this issue of comparative fault is only for the jury to decide. And contrary to the court's order denying the motion for new trial, there was evidence of comparative fault.

[00:15:10] Speaker 03:
Turn to that because here's what the argument in your briefs is that, well, Mr. Lucero could have braked.

[00:15:22] Speaker 03:
or he could have moved aside to avoid the accident. But in the opening statement, defense counsel said, well, he can't really brake because he's got this big truck. And the video of the accident seems to show he's right next to the guardrail. So I'm trying to figure out how it was that he could have avoided the accident.

[00:15:44] Speaker 04:
The guardrail was on down the road, Your Honor. It was more than 200 feet away from the point of impact. And this vehicle, Kim's vehicle, is alongside. And one of the facts that we're relying on is that Mr. Lucero was inattentive, and he acknowledges that he was not looking to the left. He was looking at the green truck down the road, and he's looking at his right mirror, not his left.

[00:16:09] Speaker 03:
Well, the reason he's not looking to the left is that he doesn't anticipate that Mr. Kim is going to, is going to cross over into his lane and hit him.

[00:16:19] Speaker 04:
But you've heard of defensive driving, and that's underscored by the motor vehicle regulation that requires commercial drivers to maintain this having their head on a swivel, as I call it, looking all around them for possible dangers. So there is evidence from which a jury could find comparative faults. However much isn't the question. They were entitled, the defendants were entitled to have that instruction.

[00:16:50] Speaker 04:
That issue had to go to the jury. The court acknowledged it was requested, albeit belatedly, but based on what the evidence showed at that point in time.

[00:17:03] Speaker 03:
Let me take you to the far end of the process. Yes. The judge gives jury instructions that do not include a comparative fault instruction. Is there then an objection to the instructions the judge gave?

[00:17:16] Speaker 03:
There didn't need to be an objection because... First answer to my question is no. Now tell me why it doesn't matter.

[00:17:25] Speaker 04:
I don't think there was an objection because the request had been made and denied, and I think under the rule and the case law, he didn't have to sort of double down and make another objection.

[00:17:37] Speaker 03:
Because this leads to the question, where in the record can I find the denial?

[00:17:42] Speaker 04:
I can't give you the page number.

[00:17:46] Speaker 03:
As I read the record, what seems to happen is the request is made. It's not given. There's no objection to the final instructions. And then this all comes up in the context of a new trial motion. But I'm not sure I can find in the record a part where the judge says, before the new trial motion, I'm not giving a comparative fault instruction because.

[00:18:08] Speaker 04:
Yes, it is there. I don't have the page number on the tip of my tongue, but it's in the brief, and the court acknowledges that the request was made, and the judge says, Mr. Weiss, I'm going to deny your request. Okay? If I have two minutes, I'll save the rest of my powder for that time.

[00:18:31] Speaker 01:
Thank you, counsel.

[00:18:41] Speaker 02:
Good morning, Your Honors. May it please the Court. I'm Mark Standridge from Tawny Coast in Chaparro. I have the honor of representing Joseph Lucero in this matter this morning. I'm going to start where Mr. Workin left off. Your Honors, this is a case about the defendant's failure to choose a lane and stick with it.

[00:18:57] Speaker 02:
Court has seen the video showing the mechanics of the injury that Alexander Kim cut into Joseph Lucero's lane on I-40 in Kingman, Arizona, or near Kingman, Arizona, failed to stay in his lane. That is how the collision occurred.

[00:19:11] Speaker 02:
Once Mr. Lucero filed suit and the defendants answered that complaint, they initially raised comparative fault as an affirmative defense. But by the time we got to trial, by the time we were working on jury instructions in April of 2024 and trying the case in May of 2024, they had unequivocally abandoned that defense. And I think that was the discussion that Judge Hurwitz, you just had with Mr. Workin.

[00:19:35] Speaker 03:
Well, here's my problem, and I need you to help me with this. Perhaps they had. but they then came back to the judge at some subsequent point, whatever their previous position had been, and said, we'd like a comparative fault instruction.

[00:19:51] Speaker 03:
She turned them down? She turned them down, and I think the part of the record the court... But she didn't turn them down because it was too late, because they've waived it. She turned them down, I think, saying... the facts don't warrant comparative fault instruction. Am I correct?

[00:20:08] Speaker 02:
I think the judge didn't give one specific reason for turning them down. If you look at the record, it's volume nine, pages 1106 to 07.

[00:20:18] Speaker 02:
My recall of that, and I can look at it while we're talking about it, is that the judge acknowledged that defense trial counsel had sent his informal email request on May 15th saying, I think we need a comparative fault instruction. That was the first time that the defendants had specifically requested such an instruction in this matter, and the judge simply said, I saw the request and I'm denying it.

[00:20:42] Speaker 03:
Okay, and what page is that in the record?

[00:20:44] Speaker 02:
Certainly, Your Honor, I'm looking at Volume 9 of the record, pages 1106 to 07. On 1106, the court says, I know Mr. Weiss in your e-mail notes, so not on the record in the proceedings, in his e-mail, his informal e-mail of May 15th, you again requested a comparative fault instruction, which I'm denying. At that point, it was incumbent upon Mr. Weiss to then get up and make an objection and say... Okay, I just want to make sure I have the facts straight before you make your argument about it.

[00:21:15] Speaker 03:
When she turns it down, she doesn't give a reason.

[00:21:18] Speaker 02:
Correct.

[00:21:20] Speaker 03:
Then it's brought up again in a new trial motion, correct? Correct. And at that point, she doesn't say, I'm turning it down because it was submitted too late... or because you didn't comply with my standing orders. She then says, because the facts don't warrant it.

[00:21:36] Speaker 02:
I believe that's correct. In the order denying the motion for new trial, that is the specific reason given. That is one of several viable reasons.

[00:21:44] Speaker 01:
And did you argue a waiver issue at that time? I mean, I'm looking at the record, and you don't raise an objection when at 1106 there's no objection on waiver grounds at this time, but you raise waiver in the motion for new trial.

[00:21:58] Speaker 02:
CORRECT, YOUR HONOR. WE RAISED IT AS AN ARGUMENT IN THE MOTION FOR, IN THE RESPONSE TO THE MOTION FOR NEW TRIAL. WE THEN REURGED THAT ARGUMENT IN OUR SECOND BRIEF ON CROSS APPEAL HERE. UNDER RULE 51, AT THAT POINT IN THE TRIAL, AT PAGE 1106 AND 07, IT WAS MR. REESE'S BURDEN TO COME UP WITH THE OBJECTION TO SAY, WELL, YOUR HONOR, I THINK YOU'RE WRONG FOR NOT GIVING US THIS COMPARATIVE FAULT INSTRUCTION, AND HERE'S WHY. HE DIDN'T DO THAT, AND IN Antecedent to that, he had not ever proposed a written instruction based on the Raji instructions for comparative fault.

[00:22:37] Speaker 02:
As I think Judge Hurwitz, you were touching on earlier, I drafted the jury instructions in April of 2024. I emailed them to Mr. Weese.

[00:22:47] Speaker 02:
With our proposal, again, at that point, we know what the video shows. We know what the evidence is. It's plaintiff's position that a comparative fault instruction was not in any way needed. So the way we drafted the instructions pursuant to the court's standing order was we used this court's stock instructions for the basic things like what is evidence.

[00:23:06] Speaker 01:
The defendants expressly agreed that no comparative fault jury instruction was necessary? They did.

[00:23:13] Speaker 02:
When I recirculated the jury instructions on April 24th, I asked, do you have anything you want to add? Because I left the section in there for the defendants to propose their own contested instructions. And they said, Mr. Weiss said, no, we don't have any. That's in the record. That's in the supplemental record. That's that email exchange of April 23rd and 24th between myself and Mr. Weiss. Those were then the instructions that we filed as joint stipulated instructions. There were a couple that were not stipulated, but they're not at issue here.

[00:23:45] Speaker 01:
I'm going to take you in a different direction. I think we understand your argument here. But This is more of a procedural question, but I'm curious. You filed a cross-appeal. I think you called it a protective cross-appeal on the summary judgment for STI on direct negligence. So if we affirm on STI's appeal, do you concede that your direct negligence theory is duplicative of the respondent superior theory?

[00:24:14] Speaker 02:
No, respectfully, no, Your Honor. Because Arizona hasn't adopted what's called the McAfee rule, which is a rule from a case coming out of Missouri, under that rule where a defendant essentially concedes vicarious liability, then direct claims for negligent entrustment or negligent hiring, retention, and supervision of a driver, those by law go away. Arizona had the opportunity to do that in 2024 in the ROAF case that is cited in our briefing, and they elected at that time not to do it.

[00:24:46] Speaker 03:
Hasn't the Arizona Supreme Court directly held, now put aside the punitive damages issue for a moment. We're only talking now about compensatory damages. Hasn't the court said that if there is liability under responde ad superior, it doesn't need to address direct negligence theories because they add nothing to the case?

[00:25:10] Speaker 02:
That's not my recall of the Arizona Supreme Court case. I think we might be talking about the same case, but they have not affirmatively adopted that rule.

[00:25:21] Speaker 03:
Well, whether they've affirmatively adopted a rule from another state or not, haven't they actually said that if there is Liability under respondeat superior theory. Put aside punitive damages for a moment. So let's assume that I don't buy your argument that the court erred by granting summary judgment on punitive damages. In the absence of punitive damages, what do your direct negligence theories add to the case? Everybody admits that they're liable under respondeat superior. They're fighting about how liable they are.

[00:25:53] Speaker 03:
But everybody admits that. So why do we even need to get to your direct negligence theories?

[00:25:58] Speaker 02:
Because it expands the realm of evidence that the jury could consider.

[00:26:02] Speaker 03:
Nobody's arguing about what evidence the jury could hear.

[00:26:06] Speaker 03:
You're on appeal, and you got a judgment in your favor.

[00:26:10] Speaker 03:
The other side says, yeah, we're liable. We're just fighting about whether we should get a new trial or in what amount. So I'm still trying to figure out what possible difference do your direct negligence theories have to our job today, not to the job of the district judge in admitting evidence?

[00:26:30] Speaker 02:
No, certainly. And respectfully, Judge, I think what the case law does say is that that is the difference, is that it expands the types of evidence and arguments that a plaintiff can make, both in terms of liability and in terms of the damages flowing from that liability. We were not allowed to present any of the evidence regarding STI's various failings in this case because of that summary judgment ruling. That evidence is highly relevant. It's part and parcel of what our claims should have been.

[00:27:02] Speaker 03:
It's highly relevant to establishing what?

[00:27:05] Speaker 02:
Highly relevant to establishing the myriad failures of both the defendants individually and collectively. that damaged Andy Lucero in multiple ways that it did.

[00:27:17] Speaker 00:
But counsel, I'm still unclear.

[00:27:21] Speaker 00:
Let's just assume for the sake of this question that we were to affirm the judgment on the main appeal.

[00:27:34] Speaker 00:
Do you still want us to consider the cross appeal? And if so, what would be different?

[00:27:42] Speaker 00:
AFTER THAT?

[00:27:43] Speaker 02:
I DO, JUDGE GRABER, AND WHAT WE WOULD PROPOSE, WHAT WE WOULD ASK THE COURT TO DO IS AT A MINIMUM AFFIRM the existing compensatory damages verdict, but enter a limited remand only on the question of STI's direct liability and then also the punitive damages claims against both.

[00:28:00] Speaker 00:
Okay, so the difference is punitive damages.

[00:28:04] Speaker 02:
They're somewhat part and parcel. The evidence kind of overlaps in a great way between the direct claims against STI and the punitive damages claims.

[00:28:15] Speaker 02:
what I envision is basically like a bifurcated trial, where we have the compensatory kind of simple liability phase, was the driver negligent up front.

[00:28:24] Speaker 01:
I guess I'm really not following your argument, because in your own brief on cross-appeal at 18, you concede that under Roe, this would only be a protective cross-appeal. So it sounds to me like you're making a completely different argument now. This is why I'm confused as well. Standing before us than you did in your own brief, where you admitted that there's really nothing left if you prevail on STI's appeal.

[00:28:51] Speaker 02:
What the court's talking about is the footnote that I put in at page 18. Page 18, note 2. We know we're bound by whatever the Arizona Supreme Court says as to Arizona substantive law.

[00:29:06] Speaker 02:
Even in the face of that, our argument at trial, our argument pre-trial in summary judgment, was based on the Arizona Court of Appeals Purdy case, which has not been explicitly overruled.

[00:29:17] Speaker 03:
Well, but Rolfe couldn't be clearer.

[00:29:21] Speaker 03:
It says, if there is respondeat superior liability, and now I'm quoting, and the plaintiff claims no separate or additional damages from the employer's conduct, which you don't because the damage occurs from the accident, the employer's separate liability adds nothing to the damages sought, and any related evidence is similarly irrelevant. That comes from the Supreme Court only two years ago. Now, I understand your punitive damages argument, but I ask you to put that aside. On compensatory damages, I think your footnote is absolutely correct.

[00:29:54] Speaker 03:
Your separate negligence theories against STI add nothing to the case if if the verdict is sustained with respect to respond to yet superior liability. Don't you agree?

[00:30:08] Speaker 02:
I think at a minimum, if that is the way that the court reads the Rolfe case, I was citing it in the more limited fashion of whether or not it overruled the Lewis case or whether it upheld it and continued it as a proponent of it, but at a minimum.

[00:30:26] Speaker 02:
what we've raised is a protective appeal on the very off chance that this court were to find any issue that would require reversal as to the compensatory damages judgment, which, of course, we don't concede in any way.

[00:30:39] Speaker 03:
Let's go back to that, because whether it's an off chance or a substantial chance or a certainty is something the three of us will decide later.

[00:30:50] Speaker 03:
You made an explicit, expressed decision in this case, I think, not to present expert testimony about the cause of Mr. Lucero's blurry vision. You presented a lot of experts.

[00:31:07] Speaker 03:
And then you argued to the trial judge that was because the cause of the loss of vision was so obvious that you didn't need one. Assume for a moment I don't agree that it's so obvious. For example, Dr. Schwartz, testifies that it's not the cause. So if a medical doctor can conclude that it's conclusively not the cause, I'm not sure how a layperson can conclude that it's obvious. So given those two choices, obvious, in which case you don't need an expert, or not obvious, in which case you do, didn't you choose the wrong side of this equation?

[00:31:44] Speaker 02:
No, not at all, Your Honor, given, again, what's depicted on the video, what the plaintiff himself was able to testify about, what was in his medical records that were admitted without objection at trial, and then were discussed by one of our other medical experts, Dr. Rondell Gonzalez.

[00:32:00] Speaker 02:
She's a medical doctor. She was tendered as an expert and accepted by the court.

[00:32:05] Speaker 03:
But she didn't testify as the causation.

[00:32:08] Speaker 02:
She testified as to the neurological issue.

[00:32:12] Speaker 03:
Right, right, but not causation of the loss of vision. Right.

[00:32:15] Speaker 02:
Not specifically, although bizarrely it was brought up with her in our case in chief on cross by Mr. Weiss. And so not only at that point were the medical records, Dr. Clavel's records.

[00:32:27] Speaker 03:
No, the records are there.

[00:32:29] Speaker 03:
But maybe we're jousting with each other here and I don't have much patience for it. You never presented an expert whose testimony was that the blurry vision was caused by the accident, correct? Correct.

[00:32:43] Speaker 02:
We did not specifically call an expert to say that specifically.

[00:32:47] Speaker 03:
Well, there is no testimony in the record from an expert who said it is my opinion that the blurry vision was caused by the accident. The best you have are Dr. Clavel's differential diagnosis, which says there are three possible causes and this is one of them, right?

[00:33:07] Speaker 02:
Well, we've got that and under Fitzgerald that's enough. But we do also have, at some point in the record, Dr. Ronald Gonzalez suggesting or stating that blurry vision can be a symptom of TBI. So we've got both the possibility, the medical possibility, that the blurry vision is caused by the injury to the eye itself.

[00:33:26] Speaker 03:
But her testimony was that it can be. Correct. And she did testify the TBI was caused by the accident.

[00:33:32] Speaker 02:
Correct.

[00:33:33] Speaker 03:
So what we've got, in addition to Dr. Clavel, is somebody else saying it's possible.

[00:33:38] Speaker 02:
Absolutely.

[00:33:39] Speaker 03:
Why is that enough?

[00:33:40] Speaker 02:
Because that's all that Fitzgerald requires.

[00:33:43] Speaker 03:
Although, interestingly enough, you never cited Fitzgerald to the district court or in your briefs on appeal.

[00:33:50] Speaker 02:
I know. I was a little disappointed in myself for not having caught that case. I think our focus below was that That was the obviousness of the mechanism of injury.

[00:34:01] Speaker 02:
That being said, since the court has directed it to us and has astutely found that case, what Fitzgerald sets forth is a contested evidence rule, and it sets a fairly low bar. Judge Hurwitz, you discussed kind of the three possibilities that a plaintiff may try to prove causation through evidence. either obviousness, direct expert testimony, or this subset where there is some non-zero amount of medical evidence that suggests the possibility of the causal connection, coupled with the other evidence and circumstances in the case, and we have both of those here.

[00:34:36] Speaker 02:
We've got Dr. Clavell's differential diagnosis in the medical records that were admitted, that were then discussed in plaintiff's case in chief by defense counsel with Dr. Rundle-Gonzalez. On top of that, the other evidence and circumstances that we have, we've got Mr. Lucero's own testimony about having been able to drive a truck for almost 3 million miles perfectly before the collision, then immediately after the collision, having blurry vision, having the injury to his eye, having to have his eye washed out.

[00:35:10] Speaker 02:
and then being treated at the Kingman ED. We have Sergeant Otto, one of the first responders, who sees the injuries to the plaintiff at the scene, documents them, and then interviews plaintiff at the Kingman ED and confirms the reports of the blurry vision that day. We also have compelling testimony from Mr. Lucero's wife, Sandra, who had Mr. Lucero send her a picture of himself that night after the collision, which showed the injury. That was Exhibit 4.

[00:35:40] Speaker 02:
below and then we also had her talking about a time she was sitting next to him she was sitting to his left on the couch and basically tries to do a finger test where she passes her finger in front of his left eye and doesn't get any response until the finger is almost midpoint through his face that two-part set of evidence meets the Coca-Cola versus Fitzgerald test. And with that, and that assumes the very generous spot, I think we've all given defendants today, that we're assuming that the entire one-line verdict in this case was attributable to the eye injury.

[00:36:17] Speaker 02:
This court has told us for 50 years at least, starting with the Porterfield case cited in our brief, that we can't do that. This court is not going to pierce a one-line verdict to attribute damages to any particular calculation that was offered to the jury. Whatever math and reasoning that the jury put into coming up with the number that they did, they left that in the jury room.

[00:36:42] Speaker 03:
And again, I know- That can't be the law. So let's assume the jury was allowed to consider as a matter of damage the fact that the Arizona Cardinals have never made the playoffs.

[00:36:59] Speaker 03:
but the verdict was not apportioned. Surely, we would reverse in that case because they were allowed to consider an improper item when awarding damages. That's their argument in this case, that you didn't establish sufficient foundation for the loss-ability vision. If they're right, then I don't see why the general verdict solves the problem.

[00:37:24] Speaker 02:
Well, A, they're not right, and B, This court has told us for 50 years that we can't pierce that one-line verdict. And I would note that it was a one-line verdict form that was requested by the defendants and granted by the court.

[00:37:37] Speaker 02:
The eye injury wasn't even the primary focus of our case in chief at trial.

[00:37:43] Speaker 02:
We had two different experts talking about various aspects of the neurological injuries and the neurobiological compromise. We had Dr. Miranda to talk about the neck and spinal injuries. We had the plaintiff and his family to talk about the emotional distress and loss and enjoyment of life. And of course we had Dr. Volkov to quantify the lost wages and to quantify the economic damages. The jury was free to select from any one of those calculations of damages and any combination of them in reaching their verdict.

[00:38:13] Speaker 02:
I can't come in here and say they awarded half a million for the eye injury, half a million for the TBI. I can't do that any more than the defendants can come in and say, The entire $2 million and change verdict came solely from the eye injury. I see I have about 15 seconds left, so to sum up, at a minimum, the jury's verdict in this matter should be affirmed, and we would request reversal for limited retrial as to the direct negligence claims and punitive damages claims.

[00:38:44] Speaker 01:
Thank you, Your Honors.

[00:38:57] Speaker 04:
I'm going to come back to the issue of the jury instructions and mention with regard to one of the last comments made, there was a request, there was a proposed comparative fault instruction. So general verdict form aside, which I don't think solves the problem when you don't have substantial evidence to support that verdict.

[00:39:29] Speaker 04:
So there was clearly a request, albeit late, for a jury instruction on comparative fault. There was a proposed form, a verdict for comparative fault. And what's overlooked here is that, sure, the comparative fault defense was asserted in the answer.

[00:39:53] Speaker 04:
And then perhaps the defense drifted away from it. But then Mr. Lucero testifies, and he testifies to his inattention. And that reinvigorates the issue. And the court didn't deny the instruction because it was untimely. The court, in its order denying the motion for new trial, mentioned only one reason, that in her view, there wasn't evidence to support it.

[00:40:19] Speaker 04:
If there's absolutely no evidence, that would be a correct conclusion. But here there was some evidence. And how much there was and what effect it might have is for the jury to decide, not for the trial judge. And again, that's the inattention and the failure to take evasive action. And that would have supported the jury instruction.

[00:40:41] Speaker 04:
And I look like I'm out of time. And thank you for the conversation.

[00:40:49] Speaker 04:
If there are other questions, of course I have time for that.

[00:40:51] Speaker 01:
I don't think so, counsel.

[00:40:53] Speaker 04:
Okay, thank you very much.

[00:40:54] Speaker 01:
Thank you to both of you for your helpful argument. That case is now submitted.