Arizona Case Law
LOHMEIER v. LOHMEIER, CA-CV 05-0764 (Ariz. 12-12-2006)
WILLIAM LOHMEIER, and BARBARA LOHMEIER,husband and wife,
Plaintiffs-Appellants, v. JUANITA HAMMER and JOHN DOE
HAMMER, wife and husband, Defendants-Appellees. 1 CA-CV
05-0764. Court Of Appeals Of Arizona, Division One.
December 12, 2006.
Appeal from the Superior Court in Yavapai County, Cause No.
CV 2003-0475, The Honorable Ralph Matthew Hess, Judge Pro
Tempore.
Warnock MacKinlay & Associates P.L.L.C. Prescott by Krista
M. Carman Brian R. Warnock Attorneys for Appellants.
Murphy Lutey Schmitt & Fuchs P.L.L.C. Prescott by Michael
R. Murphy Danny A. Wilson Attorneys for Appellees.
AFFIRMED
WEISBERG, Judge
¶ 1 William and Barbara Lohmeier appeal from a jury
verdict in favor of Juanita Hammer on their claims arising
from a motor vehicle accident. For the reasons discussed
below, we affirm.
FACTS AND PROCEDURAL HISTORY
¶ 2 On July 5, 2001, Hammer rear-ended William while
he was stopped at an intersection in Prescott, Arizona. On
June 13, 2003, the Lohmeiers filed a complaint against
Hammer in Yavapai County Superior Court, alleging that she
negligently caused the collision that resulted in injuries
to William’s lumbar spine, cervical spine, and shoulder. In
addition, William’s wife, Barbara, sought damages for loss
of consortium. William, who was sixty-eight years old at
the time of the accident, presented evidence of his
preexisting medical conditions, which he alleged caused him
to be more susceptible to injury. In support of these
claims, William presented testimony from his treating
physicians.
¶ 3 Hammer admitted that she struck William’s
vehicle, but disputed the issues of causation and damages.
At trial, Hammer presented the expert testimony of Dr.
Joseph Peles, a biomechanical engineer, who opined that the
forces involved in the collision were not sufficient to have
caused William’s alleged physical injuries. Hammer also
presented evidence indicating William’s “lack of candor,”
such as his failure to disclose certain medical treatments
that he had received before the accident, as well as
photographs taken after the accident that showed only minor
damage to the vehicles.
¶ 4 The jury returned a verdict in favor of Hammer
and awarded no damages to the Lohmeiers. The Lohmeiers
moved for a new trial, arguing that the jury’s verdict “was
not justified by the evidence presented in trial.” See
Ariz. R. Civ. P. 59(a). The trial court denied the motion,
and the Lohmeiers filed a timely appeal. We have
jurisdiction pursuant to Arizona Revised Statutes
(“A.R.S.”) sections 12-2101(B),(F)(1) and-2102 (2003).
ISSUES
¶ 5 On appeal, the Lohmeiers raise the following
issues: 1) whether the trial court erred in admitting
photographs of the vehicles and related testimony; 2)
whether the trial court erred by using an improper jury
form and refusing the Lohmeiers’ request for special
interrogatories; 3) whether the trial court abused its
discretion by awarding Hammer substantially all of the
expert witness fees; 4) whether the verdict was supported
by substantial evidence; and 5) whether the trial court
erred by allowing a biomechanical engineer to testify to
the causation of William’s physical injuries.
STANDARD OF REVIEW
¶ 6 We review a trial court’s evidentiary rulings
“for an abuse of discretion and generally affirm a trial
court’s admission or exclusion of evidence absent a clear
abuse or legal error and resulting prejudice.” John C.
Lincoln Hosp. and Health Corp. v. Maricopa County, 208
Ariz. 532, 543, ¶ 33, 96 P.3d 530, 541 (App. 2004).
In reviewing a jury verdict, we view the evidence in the
light most favorable to sustaining the verdict. Hutcherson
v. City of Phoenix, 192 Ariz. 51, 53, ¶ 13, 961 P.2d
449, 451 (1998). We will affirm the judgment if any
substantial evidence exists permitting reasonable persons
to reach such a result. Id.
DISCUSSION
Vehicle Photographs
¶ 7 The Lohmeiers first argue that photographs of
the vehicles were improperly admitted because they were
taken on an unknown date and did not accurately depict the
damage to the vehicles immediately following the
collision.[fn1] On appeal, we will not disturb a trial
court’s rulings on the admission or exclusion of evidence
unless we find a clear abuse of discretion and resulting
prejudice, or find that the trial court misapplied the law.
Gemstar Ltd. v. Ernst & Young, 185 Ariz. 493, 505, 917 P.2d
222, 234 (1996); Rimondi v. Briggs, 124 Ariz. 561, 563, 606
P.2d 412, 414 (1980) (trial court has considerable
discretion in ruling on the admission of photographs). In
determining whether a trial court abused its discretion,
“we must determine not whether we might have so acted under
the circumstances, but whether the lower court exceeded the
bounds of reason by performing the challenged act.” Toy v.
Katz, 192 Ariz. 73, 83, 961 P.2d 1021, 1031 (App. 1997).
Thus, we will not “disturb the exercise of discretion of
the trial court if it is supported by any reasonable
evidence.” Peters v. M & O Constr., Inc., 119 Ariz. 34, 36,
579 P.2d 72, 74 (App. 1978).
¶ 8 To be admissible, a photograph must be a
reasonably faithful representation of the object depicted
and aid the jury in understanding the testimony or
evaluating the issues. Baker v. Atchison, Topeka and Santa
Fe Ry. Co., 11 Ariz. App. 387, 389, 464 P.2d 974, 976
(1970). However, the individual who took the photographs
need not be the person who verifies them at trial, and the
verifying witness is not required to have been present when
the photographs were taken, provided that he or she can
attest that the photographs accurately portray the scene or
object depicted. Higgins v. Ariz. Sav. & Loan Ass’n, 90
Ariz. 55, 66, 365 P.2d 476, 484 1961).
¶ 9 In this case, Hammer proffered two photographs
of William’s vehicle that were purportedly taken by an auto
body shop on or about July 27, 2001. Hammer testified that
the photographs accurately depicted the condition of the
vehicle immediately after the accident. The Lohmeiers,
however, disputed the accuracy of the photographs, relying
on William’s testimony that the photographs of his vehicle
appeared to have been taken after it was repaired. The
trial court admitted the photographs, finding that Hammer’s
testimony had adequately established the requisite
foundation.
¶ 10 The Lohmeiers contend that the trial court
should have excluded the photographs because they were
inaccurate. While we recognize that a trial court may
exclude photographs when there is some evidence that they
are inaccurate, see, e.g., Henderson v. Breesman, 77 Ariz.
256, 262, 269 P.2d 1059, 1064 (1954), the failure to do so
does not necessarily constitute an abuse of discretion. See
Stroud v. Dorr-Oliver, Inc., 112 Ariz. 403, 410, 542 P.2d
1102, 1109 (1975).
¶ 11 The Lohmeiers suggest that the trial court
should not have credited Hammer’s testimony because the eye
condition she developed prior to trial required her to use
a magnifier to view the photographs before providing the
foundational testimony. Yet Hammer testified unequivocally
that the photographs were consistent with her observations
at the scene of the accident. Moreover, the Lohmeiers were
free to challenge the accuracy of her testimony on
cross-examination, and the trial court specifically advised
the jury of the Lohmeiers’ challenge prior to deliberation.
Accordingly, the trial court did not abuse its discretion
in admitting the photographs into evidence.
Verdict Forms and Interrogatories
¶ 12 The Lohmeiers next argue that the trial court
erred in refusing to give the jury their requested verdict
form, which segregated each alleged physical injury (lumbar
spine, cervical spine, and shoulder), and in refusing, in
the alternative, to submit special interrogatories to the
jury regarding each injury. In addition, the Lohmeiers
contend that the trial court erroneously refused their
request that the jury be given a separate verdict form for
Barbara’s claim for loss of consortium. The trial court
ruled that the Lohmeiers’ proposed verdict forms and
special interrogatories would be confusing and unhelpful to
the jury as well as prejudicial to Hammer.
¶ 13 We evaluate jury instructions and verdict forms
as a whole to determine whether they correctly stated the
law, allowed the jury to understand the issues, and
provided the jury with the correct rules for reaching a
decision. Lay v. City of Mesa, 168 Ariz. 552, 556, 815 P.2d
921, 925 (App. 1991). Failure to give a requested verdict
form is not reversible error unless the omission was
prejudicial to the moving party. State v. Garcia, 102 Ariz.
468, 471, 433 P.2d 18, 21 (1967). Similarly, submission of
special interrogatories is discretionary with the trial
court. Patania v. Silverstone, 3 Ariz. App. 424, 428, 415
P.2d 139 (1966) (citing Powell v. Langford, 58 Ariz. 281,
287, 119 P.2d 230, 232 (1941)).
¶ 14 A general verdict implies a finding by the jury
on every essential fact in favor of the prevailing party.
King & Johnson Rental Equip. Co. v. Superior Court, 123
Ariz. 256, 257, 599 P.2d 212, 213 (1979). Thus, the jury’s
verdict in this case reflects its determination that the
Lohmeiers failed to show by a preponderance of the evidence
that the collision caused any of William’s alleged physical
injuries.
¶ 15 Moreover, the trial court did not abuse its
discretion in finding that that the Lohmeiers’ proposed
verdict forms and special interrogatories would have placed
undue emphasis on returning a verdict in their favor by
singling out particular factual aspects of the litigation
and making it likely that the jury would attach undue
significance to such facts. See Bell v. Maricopa Med. Ctr.,
157 Ariz. 192, 196, 755 P.2d 1180, 1184 (App. 1988) (trial
court did not err in refusing to give separate instruction
regarding one aspect of the applicable standard of care).
¶ 16 The Lohmeiers also allege that the trial court
committed prejudicial error by refusing their request that
the jury be given a separate verdict form for Barbara’s
loss of consortium claim. The trial court gave a general
verdict form referencing both William and Barbara. Because
Barbara’s claim was a separate claim belonging to her, Bain
v. Superior Court, 148 Ariz. 331, 335-36, 714 P.2d 824,
828-29 (1986), the trial court should have provided a
separate verdict form on it. However, as the loss of
consortium claim was dependent upon finding that Hammer had
caused William’s physical injuries, the jury could not have
awarded damages for Barbara’s claim given its verdict on
William’s injuries. See Barnes v. Outlaw, 192 Ariz. 283,
285-86, ¶ 8, 964 P.2d 484, 486-87 (1998) (derivative
claim for loss of consortium necessarily requires proof of
each of the elements of the underlying cause of action). As
a result, no prejudice resulted from the trial court’s
incorrect use of a single verdict form for all of the
claims. Garcia, 102 Ariz. at 471, 433 P.2d at 21.
Expert Fees
¶ 17 Before trial, Hammer made an offer of judgment
to the Lohmeiers, which they refused. Because Hammer
prevailed at trial, achieving a more favorable outcome than
her offer, she was entitled to an award of the reasonable
expert witness fees that she subsequently incurred. See
Ariz. R. Civ. P. 68(d). Over the Lohmeiers’ objections, the
trial court awarded Hammer $16,274.59 of the $18,627.30
that she incurred for Dr. Peles’ expert testimony. See
A.R.S. § 12-332(A)(1) (2003).
¶ 18 The Lohmeiers argue that the trial court erred
in its assessment of Dr. Peles’ expert witness fees because
his fees were unreasonable and not supported in sufficient
detail. In general, a trial court is given wide latitude in
assessing an award of expert witness fees under A.R.S.
§ 12-332, and we will not disturb its award absent an
abuse of discretion. See, e.g., Fowler v. Great Am. Ins.
Co., 124 Ariz. 111, 114, 602 P.2d 492, 495 (App. 1979);
Cyprus Bagdad Copper Corp. v. Ariz. Dep’t of Revenue, 196
Ariz. 5, 9, ¶ 17, 992 P.2d 5, 9 (App. 1999).
¶ 19 Here, the trial court’s award was based on its
finding that Hammer had presented documentation of sufficient
detail, complemented by testimony at trial, of the work performed
by Dr. Peles. Dr. Peles’ fees increased incident to the
preparation of a supplemental report necessitated by
additional injury claims of [the Lohmeiers’] subsequent to
Dr. Peles’ initial report.
¶ 20 Our review of the record reflects that there
was ample evidence to support the trial court’s award under
A.R.S. § 12-332. As discussed in more detail below,
Dr. Peles’ testimony was hotly disputed by the Lohmeiers,
who filed an extensive motion in limine to preclude him
from testifying and proffered their own expert witness to
critique Dr. Peles’ calculations and conclusions. Thus, the
trial court did not abuse its discretion in finding that a
significant proportion of Dr. Peles’ fees were incurred as
a result of the Lohmeiers’ own trial strategy. Moreover,
the record reflects that Dr. Peles provided billing
statements that adequately detailed the general type of
work he performed, his hourly rate, and related expenses.
See Cyprus Bagdad Copper Corp., 196 Ariz. at 10, ¶
21, 992 P.2d at 10 (requirements set forth in Schweiger v.
China Doll Rest., Inc., 138 Ariz. 183, 187-89, 673 P.2d
927, 931-33 (App. 1983), inapplicable to expert witness fee
awards). Nor did the trial court err in refusing to use the
fees charged by the Lohmeiers’ expert witness as the
benchmark for assessing Dr. Peles’ fees, given the
different skills, training, and experience of the two
experts, as well as the different amounts of time they spent
on the case. Accordingly, the trial court did not abuse its
discretion in awarding Hammer a substantial portion of Dr.
Peles’ expert witness fees or in denying the Lohmeiers’
request for an evidentiary hearing on the issue. See, e.g.,
Brake Masters Sys., Inc. v. Gabbay, 206 Ariz. 360, 365,
¶ 14, 78 P.3d 1081, 1086 (App. 2003); compare Ohliger
v. Carondelet St. Mary’s Hosp. & Health Ctr., 173 Ariz.
597, 598, 845 P.2d 523, 524 (App. 1992) (significant
factual dispute with respect to award of attorney’s fees).
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