Free Order on Motion for Miscellaneous Relief - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

) ) Plaintiffs, ) ) vs. ) ) Darrell Lee Ekdahl, et al., ) ) ) Defendants. ) ____________________________)

Palma Bacca Urrutia, et al.,

No. CV 03-1990-PHX-PGR ORDER

Pending before the Court are the following motions: Plaintiffs' Motion for Adverse Jury Instruction for Spoliation of Evidence (Doc. 78), and Plaintiffs' Motion to Strike Expert's Opinion (Doc. 82). The Court now rules on the motions. I. INTRODUCTION This case arises out of a motor vehicle accident between a semi tractor-trailer and a Ford truck which resulted in the deaths of Jose Luis Urrutia-Arrieta and Javier Arturo Sandate-Urrutia. The Plaintiffs are surviving family members who are bringing claims of wrongful death, negligence, and negligent hiring and supervision against the Defendants. On May 22, 2003, Defendant Darrell Lee Ekdahl ("Ekdahl") was driving a semi tractor-trailer eastbound on Interstate 10 for Vandy's Transportation, Inc. ("Vandy's Transportation"). On the same day and approximately the same time, decedent Urrutia was driving his Ford truck with his seventeen year-old nephew. Ekdahl rear ended the Ford truck causing it to roll off the interstate and catch fire resulting in the deaths of its two occupants.
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It is undisputed that the deceased was carrying numerous items in the bed of his truck, including buckets of paint. Upon impact, the buckets of paint crashed against the front of the tractor-trailer, coating most of the cab and streaking back onto the trailer. Both Plaintiffs and Defendants retained accident reconstructionists to evaluate the evidence and provide an expert opinion as to its cause. The Plaintiffs now request that the Court issue an adverse jury instruction against the Defendants for their failure to preserve the semi tractor-trailer involved in the aforementioned accident. In addition, the Plaintiffs move the Court to strike the opinion of the Defendants' expert witness. II. DISCUSSION A. Spoliation of Evidence

Central to reconstructing this accident is determining the speeds of both vehicles before and after impact. One of the reasons that the speed of the vehicles is so critical to the outcome of this case is because Defendant Ekdahl maintains that the deceased pulled out in front of him from the emergency lane. In determining the speed of the vehicles a formula is used that includes an accepted "drag coefficient" for semi tractor-trailers skidding over asphalt. The accepted drag coefficient for an asphalt roadway is between .45G and .50G. This is the drag coefficient Plaintiffs' expert used to calculate the speed of the Defendants' tractor-trailer. However, the Defendants' expert used a different drag coefficient. According to the Defendants' expert, a drag coefficient of .2G is correct because the semi tractor-trailer skidded over 150 feet of paint. The Plaintiffs maintain that the Defendants' expert has no accepted basis to support his .2G drag coefficient nor can he show that the tractor-trailer skidded over paint. The Plaintiffs take issue with the defense expert's reliance on photographic evidence they maintain does not support his contention. Primarily, the Plaintiffs argue that the semi tractor-trailer's tires would be the best evidence to establish conclusively whether any of the tires on the semi tractor-trailer skidded
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over paint or whether the paint landed over the top of the skids. However, the Plaintiffs claim that the Defendants knowingly allowed this evidence to be lost or destroyed despite specific demands for its preservation. The tractor portion of the Defendants' vehicle was acquired by Southwest Towing, pursuant to Arizona's abandonment laws. Once Southwest Towing had possession, it removed the tractor's tires, washed them, and reinstalled them on another vehicle. The Plaintiffs also argue that the Defendants failed to preserve the trailer portion of the semi. During Defendant Ekdahl's deposition, the Plaintiffs learned that Vandy's Transportation took possession of the trailer and continues to use it in commercial trucking operations. Accordingly, any evidence of paint on the tire treads of the trailer would now be lost. The Plaintiffs assert that this very critical evidence was lost due to the Defendants intentional acts or failures. The Plaintiffs request that this Court prevent the Defendants from using this lack of evidence to their advantage in arguing that the tractortrailer skidded over 150 feet of paint. The Defendants respond by pointing to the numerous pictures taken by the Arizona Department of Public Safety of the accident scene as well as the semi tractor-trailer. The Defendants argue that these pictures were taken to preserve the evidence of the accident scene and the vehicles involved in the accident scene for future reference and use. Furthermore, the Defendants state that the Arizona Department of Public Safety ("ADPS") concluded that the Urrutia vehicle was the at-fault vehicle and did not issue any citations to Defendant Ekdahl. The Defendants argue that their expert carefully examined photographs of the paint covered tires taken by ADPS even though this evidence was evidently ignored by the Plaintiffs' expert. According to the Defendants, these photos clearly show paint visible in the tire tread grooves, skid marks through the paint, as well as a trail of paint left by the tires on the asphalt. Furthermore, the Defendants claim that their expert carefully inspected the tires that had been removed from the tractor by Southwest Towing and cleaned. Defense expert, Dr. Werner, opined that he was able to see the flat abraded areas on the tires caused
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by skidding on the asphalt. However, the Defendants point out that the Plaintiffs' expert never inquired about the tires while he was at Southwest Towing examining the tractor. Furthermore, the Defendants claim that the trailer portion of the vehicle has been preserved and maintained and may be inspected by the Plaintiffs at their request. In reply, the Plaintiffs first point out that the relevance of the tires on the semi tractortrailer did not become an issue until after the Defendants' expert, Dr. Werner, claimed that the tractor-trailer skidded over 150 feet of paint. This factual claim was not made until the Plaintiffs deposed the expert on October 14, 2004. The Plaintiffs argue that the Defendants' reliance on photographic evidence of the tires is misplaced. The Plaintiffs state that the issue is whether the flat spots on the 18 tires of the semi tractor-trailer had paint on them. According to the Plaintiffs' argument, there is no question that the physical evidence proves that the semi tractor-trailer locked its brakes because the cleaned tires that were available for inspection clearly showed flat spots where the tires skidded over asphalt. The Plaintiffs state that the real question is whether those flat spots or the grooves immediately under the flat spots contained remnants of paint, not whether the sidewalls and perhaps the grooves on some other portion of the tires had paint on them. "A federal trial court has the inherent discretionary power to make appropriate evidentiary rulings in response to the destruction or spoliation of relevant evidence." Glover v. BIC Corp., 6 F.3d 1318, 1329 (9th Cir. 1993); see also Akiona v. United States, 938 F.2d 158 (9th Cir. 1991). Furthermore, a district court also has broad discretionary power to permit a jury to draw an adverse inference from the destruction or spoliation of evidence against the party or witness responsible for that behavior. Glover, 6 F.3d at 1329; Akiona, 938 F.2d at 161. An adverse inference may be appropriate even absent bad faith on the part of the party responsible for destroying the evidence. See, e.g., Glover, 6 F.3d at 1329. The adverse inference is based on two rationales, one evidentiary and prophylactic: The evidentiary rationale is nothing more than the common sense observation that a party who has notice that a[n] [item] is relevant to litigation and who proceeds to destroy the document is more likely to have been
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threatened by the [evidence] than the is a party in the same position who does not destroy the [item]. . . The other rationale for the inference has to do with its prophylactic and punitive effects. Allowing the trier of fact to draw the inference presumably deters parties from destroying relevant evidence before it can be introduced at trial. Akiona, 938 F.2d at 161. At this point in the litigation, the Court determines that the present record does not support an order imposing an adverse inference at trial. Once all available evidence has been presented at trial, the Court can and will determine whether any evidentiary remedies are appropriate to limit any prejudice to the Plaintiffs arising from the Defendants alleged spoliation of the evidence. The appropriate time to address this issue will be after the evidence has been presented and the Court is called upon to settle the instructions to give to the jury. B. Motion to Strike Expert's Opinion

In conjunction with their motion for adverse jury instructions, the Plaintiffs also submit their Motion to Strike defense expert Dr. Werner's opinions regarding the speed of the vehicles involved in this matter on the grounds that his opinion lacks foundation and are thus unreliable. As stated above, the Defendants' expert used a drag coefficient of .2G to calculate the speed of the tractor-trailer. The Defendants' expert argues that .2G is proper because .3G is used for a car skidding over water and because he contends the semi skidded over 150 feet of paint. The Plaintiffs argue that the Defendants' expert has no data or accepted basis to support his .2G drag coefficient nor can he reliably show that the semi skidded over paint. The Defendants counter that it is not speculative for their expert, Dr. Werner, to estimate a .2G drag coefficient for the Defendants' truck skidding over and through paint for 150 feet. The Defendants state that even though a tractor-trailer skidding through paint is not identical to the skidding of a passenger vehicle through water, it is sufficiently similar and both involve applying the same principles of physics. The Defendants maintain that the fact
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that the Plaintiffs' expert has a different opinion does not make Dr. Werner's opinion speculative. The Defendants argue that the laws of physics support the opinion that a

tractor-trailer skidding through paint which is more viscous than water will have a lower coefficient than a car skidding through water. In addition, the Plaintiffs state that the Defendants' claim that the "paint field" was 150 feet long is incorrect. The officer at the scene testified that the paint was 150 feet side-toside on the roadway. Furthermore, the officer testified that he could not tell whether the skids appeared to be over or under the paint. The Plaintiffs also add that the officer reported to the scene approximately 30 minutes after the accident, which was after half a dozen vehicles traveled over the painted area, including two to three other semi tractor-trailers. According to the Plaintiffs, the photographs simply do not show whether the semi skidded over the paint versus the paint spray landing over the top of the skids. The Plaintiffs argue that if the Defendants had preserved the evidence as they were requested and legally required to do, the tires of the tractor-trailer would have provided the best evidence. Again, the Defendants disagree with the Plaintiffs' interpretation of the evidence. They point out that the investigating officer testified that the paint covered both lanes of travel from the edge of pavement to the edge of pavement and estimated the length of the paint field to be 150 feet. The Defendants argue that this is simply a case of conflicting expert opinions. The Defendants assert that where the facts relied upon for an expert's opinion are subject to conflicting interpretations, the opinion is not rendered speculative or otherwise inadmissible providing that the opinion fairly incorporates the facts supported by the evidence. At this point in the litigation, the Court declines to enter an order striking the Defendants' expert's opinions. Based on the information currently before it, the Court cannot conclude that Dr. Werner's opinions are speculative as the Plaintiff argues. Questions concerning the accuracy and reliability of a witness' factual basis, data and methods goes to the weight and credibility of the witness' testimony and are questions of fact properly
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reserved for the jury. Logerquist v. McVey, 1 P.3d 113 (Ariz. 2000) (discussing Kumbo Tires Co., Inc. v. Charmichael, 526 U.S. 137 (1999) and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 479 (1993)). Accordingly, the Plaintiffs' Motion to Strike is also denied. IT IS ORDERED that the Plaintiffs' Motion for Adverse Jury Instruction for Spoliation of Evidence (Doc. 78) is DENIED without prejudice as premature. IT IS FURTHER ORDERED that the Plaintiffs' Motion to Strike Expert's Opinion (Doc. 82) is DENIED.

DATED this 15th day of July, 2005.

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