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Arizona

 

 ARIZONA REFORMS

Admissibility of Expert Opinion Testimony- S.B. 1189; A.R.S. § 12-2203; Adopted the Daubert standard for admitting expert witness testimony and expert evidence; Arizona Courts currently embrace the less stringent Frye standard.  The Daubert standard requires the courts to consider four factors when examining the merits of expert testimony: (1) whether the expert’s technique or theory can be tested; (2) whether the theory has been subject to peer review and publication; (3) the known or potential rate of error of the technique or theory; and (4) whether the theory or technique has been generally accepted in the relevant field.  This standard substantially decreases the probability of “junk science” being presented to juries, thus, affecting the outcome of a trial.  It also serves as a filter that screens out ungrounded lawsuits from even reaching trial, which is especially important for manufacturers facing questionable product liability claims and health care providers facing questionable medical malpractice claims. 

This bill is currently being litigated in several counties around the state.  A Maricopa County judge recently ruled that the Daubert legislation is unconstitutional; however a Pima County judge subsequently ruled that it was in fact constitutional. 

Appeal Bond Reform- S.B. 1212 (2011), A.R.S. § 12-2108

Limits the amount of an appeal bond to the lesser of the total amount of damages awarded excluding punitive damages, 50% of the appellant's net worth, or $25 million. 

Arbitration: SB 1204 (1991).  Requires all cases filed in superior court to go to arbitration, if the parties agree that the amount in question does not exceed $50,000, which is the jurisdictional limit.  Allows the parties to waive the arbitration requirement for good cause, if all parties file a written stipulation to do so. 

Assumption of the Risk: SB 1305 (1994); A.R.S. § 12-716; A.R.S. § 12-717; A.R.S. § 12-820.06; A.R.S. § 12-820.07; A.R.S. § 12-983; amended A.R.S. § 9-500.02; A.R.S. § 12-711; A.R.S. § 12-712; A.R.S. § 12-982; A.R.S. § 33-1551.  Provides for an assumption of the risk defense in personal injury lawsuits.  Under the Arizona Constitution, SB 1305 is technically unconstitutional and cannot be enacted until the constitution is amended.

Collateral Source Rule Reform: SB 1055 (1993): Ariz. Rev. Stat. § 12-565.  Permits the admissibility of evidence of collateral source payments in all civil liability cases. 

Construction Liability Reform: HB 2620 (2002); A.R.S. § 12-1361; A.R.S. § 12-1362; A.R.S. § 12-1363; A.R.S. § 12-1364; A.R.S. § 12-1365; A.R.S. § 12-1366; amended A.R.S. § 33-2003.  Requires a purchaser to wait to file a lawsuit against a seller for a construction defect until after the seller has had an opportunity to correct the defect.  

Drunk Drivers’ Lawsuit Reform: SB 1305 (1994); A.R.S. § 12-716; A.R.S. § 12-717; A.R.S. § 12-820.06; A.R.S. § 12-820.07; A.R.S. § 12-983; amended A.R.S. § 9-500.02; A.R.S. § 12-711; A.R.S. § 12-712; A.R.S. § 12-982; A.R.S. § 33-1551.  Prohibits lawsuits brought by drunk drivers in accidents where they are more than 50% at fault.  Under the Arizona Constitution, SB 1305 is technically unconstitutional and cannot be enacted until the constitution is amended.

Good Samaritan Protection: SB 1305 (1994); A.R.S. § 12-716; A.R.S. § 12-717; A.R.S. § 12-820.06; A.R.S. § 12-820.07; A.R.S. § 12-983; amended A.R.S. § 9-500.02; A.R.S. § 12-711; A.R.S. § 12-712; A.R.S. § 12-982; A.R.S. § 33-1551.  Provides immunity from civil liability for volunteers, non-profit organizations and emergency medical technicians.  Under the Arizona Constitution, SB 1305 is technically unconstitutional and cannot be enacted until the constitution is amended.

Joint and Several Liability Rule Reform: SB 1036: (1987): Ariz. Stat. § 12-2506.  Bars application of the rule of joint and several liability in the recovery of all damages, except in cases of intentional torts and hazardous waste.  The statute abolishing joint liability did not violate the equal protection, due process, or separation of powers provisions of the State Constitution.  Church v. Rawson Drug & Sundry Co., 842 P.2d 1355 (Ariz. App. 1992).  Retroactive application of the statute abolishing joint liability was not unconstitutional.  Neil v. Kavena, 859 P.2d 203 (Ariz. App. 1993).

Jury Service Reform: H.B. 2133 (2006); Amended A.R.S. § 21-222.  Modifies key provisions of ALEC’s Jury Patriotism Act that was adopted in 2003 to make jurors eligible to receive compensation from the lengthy trial fund (up to $300 per day) for those who serve on juries for more than five days.  In such circumstances, jurors would then receive additional compensation beginning from the fourth day served.

Jury Service Reform: HB 2305 (2005); Amended A.R.S. § 21-202. Amends criteria for perspective jurors to be excused from service by permitting      a person who is at least 75 years of age to have the option to be temporarily or    permanently excused from service.  Provides that a judge or jury commissioner         may temporarily excuse a prospective juror for good cause, such as a lack of transportation or absence from the jurisdiction.  Included technical changes to the statement required for verification of the medical need for an excuse due to a mental or physical condition that makes the prospective juror unfit for service.

Jury Service Reform: H.B. 2520 (2003); A.R.S. § 21-115; A.R.S. § 21-222; A.R.S. § 21-335; A.R.S. § 21-336, A.R.S. § 21-336.01; amended A.R.S. § 21-202; A.R.S. § 21-236; A.R.S. § 21-315; A.R.S. § 21-334; repealed A.R.S. § 21-115; A.R.S. § 21-222.  Requires all people to serve on juries unless they experience undue or extreme physical or financial hardship.  Establishes a lengthy trial fund from a modest filing fee to compensate jurors a minimum of $40 and a maximum of $300 per juror, per day for trials lasting more than 10 days, starting on the eleventh day of trial.  In such circumstances, jurors would also be eligible to retroactively collect at least $40 but not more than $100 per day from the fourth day to the tenth day of service. Prohibits an employer to require an employee to use annual or sick leave for the time spent in the jury service process.  Prohibits employers to dismiss or in any other way penalize employees for responding to a jury service summons.  Provides for protection of small business owners by requiring the court to postpone the service of an employee if another employee of that business is already serving on a jury.  Allows for one automatic postponement from service.

Medical Liability Reform: Contingent Fee Reform: Ariz. Rev. Stat. § 12-568.  Allows a court to consider the reasonableness of attorneys’ fees in medical liability cases, taking into account factors such as “the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal skills properly.”

Medical Liability Reform: Immunity for Free Health Care Services: HB 2556 (1990).  Limits physician and health care facility liability related to the delivery of infants under certain emergency care situations if the patient was not previously treated for pregnancy by the physician, a group practice of the physician, or the physician assistant and nurse midwife with whom the physician had an agreement.  (Unless elements are proved by clear and convincing evidence, the licensed health care facility is not liable to the female patient, the child or children delivered or their families for medical malpractice related to labor or delivery.)

Medical Liability Reform: Periodic Payment of Future Damages: HB 2123 (1989): Ariz. Rev. Stat. §§ 12‑582, 12‑592.  Requires a court to allow the periodic payment of periodic damages unless the opposing party can show good cause why payments should not be made periodically.

Medical Liability Reform: Postjudgment Interest Reform: HB 2162 (1994); A.R.S. § 12-352.  Sets postjudgment interest rates on medical liability actions (including those resolved through ADR) at the federal postjudgment interest rate, with a floor of 3% and a ceiling of 9%.

Obesity Litigation Reform: HB 2220 (2004); A.R.S. § 12-688; amended A.R.S. § 12-681; A.R.S. § 12-683.  Exempts from civil liability purveyors of food when the claim is a result from the repeated consumption of a food product that is not defective and unreasonably dangerous if consumed in reasonable quantities.  Provides that there is no duty to warn purchasers, users, or consumers, regardless of age, that the consumption of a food product that is not defective and unreasonably dangerous may cause healthy problems if consumed excessively.  Food product is defined as any product that is grown, prepared, provided, served or sold and that is primarily intended for human consumption and nourishment. 

Police and Firefighters Liability Reform: SB 1305 (1994); A.R.S. § 12-716; A.R.S. § 12-717; A.R.S. § 12-820.06; A.R.S. § 12-820.07; A.R.S. § 12-983; amended A.R.S. § 9-500.02; A.R.S. § 12-711; A.R.S. § 12-712; A.R.S. § 12-982; A.R.S. § 33-1551.  Provides immunity from civil liability for fire fighters and police officers acting within the scope of their duties.  Under the Arizona Constitution, SB 1305 is technically unconstitutional and cannot be enacted until the constitution is amended.          

Prisoners’ Lawsuit Reform: SB 1305 (1994); A.R.S. § 12-716; A.R.S. § 12-717; A.R.S. § 12-820.06; A.R.S. § 12-820.07; A.R.S. § 12-983; amended A.R.S. § 9-500.02; A.R.S. § 12-711; A.R.S. § 12-712; A.R.S. § 12-982; A.R.S. § 33-1551.  Limits prisoners’ lawsuits.  Under the Arizona Constitution, SB 1305 is technically unconstitutional and cannot be enacted until the constitution is amended.          

Punitive Damages Reform: Clear and Convincing Evidence: Linthicum v. Nationwide Life Ins. Co., 723 P.2d 675 (Ariz. 1986).  Requires a plaintiff to prove punitive damages by “clear and convincing” evidence.

 

Punitive Damages Reform: FDA-Approved Drugs: SB 1453 (1989).  Establishes a government standards defense to punitive damages for FDA-approved drugs.

Transparency in Private Attorney Contracts- H.B. 2423 (2011), A.R.S. § 41-4801

Bars the state from entering into a contingency fee contract with a private attorney unless the attorney general first makes a written determination that the contingency fee representation is both cost effective and in the public interest.  The contract must be posted on the attorney general's website for at least 365 days.  Limits the amount of aggregate contingency fees that the attorney may receive. The private attorney may not receive more than 25% of any recovery less than $10 million, 20% of any recovery of between $10 million and $15 million, 15% of any recovery of between $15 million and $20 million, 10% of any recovery of between $20 million and $25 million, and 5% of any recovery of more than $25 million.

 


© 2007 American Tort Reform Association