noting that a failure to timely disclose information concerning the expected testimony of an expert results in an inability “to use that information at trial absent specific extenuating circumstances”
How later courts described this case
- noting that a failure to timely disclose information concerning the expected testimony of an expert results in an inability “to use that information at trial absent specific extenuating circumstances”
- reasoning it would “affirm the trial court’s decision if it did not ‘exceed[ ] the bounds of reason by performing the challenged act.’ ” (quoting Toy v. Katz, 192 Ariz. 73, 83, 961 P.2d 1021, 1031 (App.1997))
- finding that a comparative fault defense not raised in either the disclosure statements or the joint pretrial statement should have been precluded
- recognizing that “we generally do not consider issues, even constitutional issues, raised for the first time on appeal” (citation omitted)
Written by the judges who cited it.
The opinion
ESPINOSA, Chief Judge,
dissenting in
part.
¶27 I concur with the majority on all issues except the propriety of the trial court’s granting of a new trial on the issue of damages. Although, as the majority correctly notes, this is a matter within the trial court’s *30 discretion, Styles, I would find that discretion exceeded here because the liability and damages issues were in no way “inextricably intertwined.” A partial retrial is appropriate when the issues are not interwoven and the possibility of prejudice is slight. See Styles, 185 Ariz. at 451-52, 916 P.2d at 1167-68; Martinez v. Schneider Enters., 178 Ariz. 346, 349 , 873 P.2d 684, 687 (App.1994). As the majority concedes, “the issues of liability and damages in a wrongful death action are generally distinct because recoverable damages are not based on the negligent act, but, rather, on the survivors’ injuries ‘resulting from the [decedent’s] death.’ ” Supra, at ¶ 16. Such is this case. Carondelet’s contention that the evidence of damages was separate and distinct from the evidence of liability and the comparative fault of the parties is borne out by the record. It is unfair to nevertheless require Carondelet to retry a valid and untainted damages verdict, particularly when it was not the party responsible for the conduct necessitating a new trial. See Winn.
¶28 Moreover, in her new trial motion, Englert asserted error only as to liability issues. She was therefore not entitled to relief from the damages judgment. See Ariz. R.Civ.P. 59(h) (if granted, new trial should be “only” on question “with respect to which the verdict or decision is found erroneous”). I would affirm the trial court’s judgment only to the extent of granting Englert a new trial on the liability issues she contested.