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.