Jamien Jensen v. Exc Incorporated

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMIEN RAE JENSEN, individually No. 20-15908

and as parent and next friend of minor

D.J. and as Personal Representative of D.C. No.

the Wrongful Death Estate of unborn 3:15-cv-08019-

child C.J.; CHAVIS JOHNSON, SPL

individually and as Personal

Representative of the Wrongful Death

Estate of Butch Corey Johnson; OPINION

MARGARET JOHNSON; FRANK

JOHNSON; FRANCESCA

JOHNSON; JUSTIN JOHNSON;

HOLLY JOHNSON; DOMINIQUE

JOHNSON; RAYMOND JENSEN,

Sr.; LOUISE R. JENSEN; KATRINA

JENSEN; RAYMOND JENSEN, Jr.;

MURPHY JENSEN; NICOLE

JENSEN; RYAN JENSEN; JUSTIN

JENSEN,

Plaintiffs-Appellants,

v.

EXC, INC., DBA D.I.A. Express,

Inc., DBA Express Charters, a

Nevada corporation; CONLON

GARAGE, INC., a Colorado

2 JENSEN V. EXC INC.

corporation; GO AHEAD

VACATIONS, INC., a Massachusetts

corporation; RUSSELL J. CONLON,

individually; NATIONAL

INTERSTATE INSURANCE CO.,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Arizona

Steven P. Logan, District Judge, Presiding

Argued and Submitted May 11, 2021

San Francisco, California

Filed September 22, 2023

Before: WALLACE and COLLINS, Circuit Judges, and

RAKOFF,* District Judge.

Opinion by Judge Collins;

Partial Concurrence and Partial Dissent by Judge Wallace

*

The Honorable Jed S. Rakoff, United States District Judge for the

Southern District of New York, sitting by designation.

JENSEN V. EXC INC. 3

SUMMARY**

Evidence / Arizona and Tribal Law / Negligence

In a diversity action involving personal injury and

wrongful death claims arising from a collision between a

sedan and a tour bus on a U.S. highway within the

boundaries of the Navajo Nation reservation, the panel

affirmed the district court’s judgment in favor of defendants

to the extent that it dismissed all claims that had been

asserted solely under Navajo law; reversed the district

court’s judgment on the claims that were submitted for trial

because the district court erroneously allowed the

introduction of hearsay opinions of a non-testifying putative

expert; and remanded for a new trial.

The panel held that the district court abused its discretion

in allowing, under the guise of impeachment evidence

against plaintiffs’ expert witnesses, defendants’ counsel to

elicit the opinions expressed in a police report prepared by

the Arizona Department of Public Safety as to the cause of

the accident. An opinion rendered by a person of unknown

qualifications and contained in a report that, without any

other explanation, relies uncritically on the hearsay

statements of only selected witnesses and that does not

expressly take account of, or address, any other relevant

considerations, does not bear sufficient indicia of reliability

and trustworthiness to be admitted as a competing expert

“opinion” that a testifying expert may be required to address

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

4 JENSEN V. EXC INC.

on cross-examination. The panel held that the error was not

harmless, and reversed and remanded for a new trial.

Next, the panel affirmed the district court’s conclusion

that Arizona law applied and its resulting dismissal of all

claims that were asserted only under Navajo law. In

determining what law governed the case, the panel applied

Arizona substantive law. Arizona courts generally follow

the Second Restatement of Conflict of Laws in determining

the applicable law in a tort case. Applying the relevant

factors set forth in the Restatement, the panel agreed with the

district court that Arizona law applied rather than Navajo

law.

Finally, plaintiffs challenged the district court’s refusal

to hold that, as a matter of law, defendant Russell Conlon’s

negligence proximately caused the accident. As a threshold

issue, the panel held that it could not review the district

court’s denial of summary judgment on the causation issue

where an actual trial has intervened between the summary

judgment ruling and the final judgment on appeal. The panel

was limited to reviewing only the denial of plaintiffs’

comparable arguments in its Fed. R. Civ. P. 50 motions for

judgment as a matter of law at trial. The panel held that the

district court properly denied plaintiffs’ motions for

judgment as a matter of law because, under Arizona law, a

reasonable jury could find that Conlon’s negligence was not

the proximate cause of the accident.

Concurring in part and dissenting in part, Judge Wallace

would affirm the district court in all respects. He concurred

with the majority that Arizona state law governed this action

and that the district court did not err in denying plaintiffs’

motion for judgment as a matter of law. He dissented from

the majority’s resolution of the evidentiary question, and he

JENSEN V. EXC INC. 5

would hold that the district court did not abuse its discretion

in permitting defendants’ counsel to ask the plaintiffs’

experts about the police officer’s report and conclusions

because the report was sufficiently reliable to be considered

and to be the subject of limited cross-examination.

COUNSEL

Geoffrey R. Romero (argued), Law Offices of Geoffrey R.

Romero, Albuquerque, New Mexico; John P. Lavelle,

University of New Mexico, Albuquerque, New Mexico;

Thomas A. Biscup, Zebrowski Law, Shelby Township,

Michigan; for Plaintiffs-Appellants.

Eileen D. GilBride (argued), John T. Masterson, Elizabeth

A. Gilbert, and Brandi C. Blair, Jones Skelton & Hochuli

PLC, Phoenix, Arizona, for Defendants-Appellees.

OPINION

COLLINS, Circuit Judge:

This diversity suit involves personal injury and wrongful

death claims arising from a collision between a sedan and a

tour bus on a U.S. highway within the boundaries of the

Navajo Nation reservation. Before trial, the district court

held that Arizona law applies to the accident, and it therefore

dismissed all claims based on Navajo law. At trial, the jury

rejected all remaining claims asserted by the sedan’s

surviving passengers and by the estate of the sedan’s driver,

and the district court entered judgment in favor of the tour

bus driver, the tour organizer, and other related corporations.

6 JENSEN V. EXC INC.

We affirm the dismissal of all claims that were based on

Navajo law. However, we conclude that the district court

erroneously permitted defense counsel to introduce, and to

rely upon at trial, the hearsay opinions of a non-testifying

putative expert, namely, the state trooper who investigated

the crash and who expressed an opinion as to how it

occurred. We therefore affirm in part, reverse in part, and

remand for a new trial.

I

A

On the night of September 20, 2004, a group of tourists

participating in a National Parks tour organized by Go

Ahead Vacations, Inc. (“Go Ahead Vacations”) stayed at a

Hampton Inn on Highway 160 in Kayenta, Arizona, within

the Navajo reservation. Go Ahead Vacations had chartered

a bus for the tour from EXC, Inc. (“EXC”), which provided

a 2004 Van Hool 57-seat motor coach driven by Russell

Conlon. At around 8:00 AM on the morning of September

21, Conlon, together with a tour guide and 38 passengers,

boarded the bus to head out to the Grand Canyon. The

Hampton Inn from which they departed is located on the

north side of U.S. Highway 160, which is an east-west road

that “is open to the public and maintained by the State of

Arizona under a federally granted right-of-way over Navajo

Nation land.” EXC Inc. v. Jensen, 2012 WL 3264526, at *1

(D. Ariz. Aug. 9, 2012), aff’d, 588 F. App’x 720 (9th Cir.

2014), cert. denied, 579 U.S. 941 (2016). Driving the tour

bus, Conlon turned to the right out of the Hampton Inn’s

driveway, and the bus began heading westbound on

Highway 160.

At the point at which the tour bus entered Highway 160

in front of the Hampton Inn, the highway has two westbound

JENSEN V. EXC INC. 7

travel lanes. However, shortly down the road to the west,

those two lanes merge into one. Just before he turned

westbound onto Highway 160, Conlon looked to the east and

saw a Chevy Tahoe (driven by Bert Wisner) turn out of a

nearby Burger King into the left-most westbound lane of

Highway 160. Despite seeing the Tahoe turn into the left-

most lane, Conlon turned onto the highway and then

proceeded to move into that very same left-most lane before

the Tahoe had passed the bus. Presumably annoyed that the

slow-moving 40,000-lb. bus had turned directly in front of

him in the left lane rather than stay in the right lane, Wisner

moved his vehicle into the right lane and began catching up

to the bus.

At the same time, a Pontiac Sunfire sedan driven by

Butch Corey Johnson was proceeding eastbound on

Highway 160. In the front passenger seat of the sedan was

his wife, Jamien Rae Jensen, who was holding their one-

year-old son D.J. and who was also pregnant with their

unborn second child. The front left of Johnson’s sedan

collided with the front left of the tour bus. Johnson died as

a result of the crash, Jensen and their son D.J. suffered

injuries, and Jensen’s unborn child was killed. At the time

of the collision, Wisner’s Tahoe was next to the bus. Both

vehicles veered to the right, following roughly parallel paths

until they came to rest off the north side of the westbound

highway, about 20 to 25 feet apart from each other.

At the time of the accident, Highway 160 had just been

resurfaced and the lanes were marked with temporary yellow

tabs instead of painted lines. The parties agree that the

accident occurred in the vicinity of the left-most westbound

lane, but they disagree about most other major points about

exactly what happened. Plaintiffs’ theory at trial was that

Johnson was driving in the lane immediately to the south of

8 JENSEN V. EXC INC.

the left-most westbound lane (which was either a center,

universal turn lane or was the left-most eastbound lane); that

Conlon, distracted by Wisner’s nearby vehicle, entered

Johnson’s lane; and that Conlon veered to the right shortly

before the impact. Defendants’ theory was that Johnson

crossed into the westbound lanes and collided with the bus.

B

The ensuing tort litigation was first filed in the courts of

the Navajo Nation in 2006, but we ultimately held in

December 2014 that the tribal court lacked jurisdiction. See

EXC, Inc., 588 F. App’x at 722. Two months later, this

lawsuit was filed in federal court by Jensen, suing

individually and on behalf of D.J., and by Johnson’s brother

Chavis Johnson, as the representative of Johnson’s wrongful

death estate (collectively, “Plaintiffs”). Named as

Defendants were Conlon, EXC, Go Ahead Vacations, and

another corporation related to Conlon (collectively,

“Defendants”). Asserting that Navajo law applied and

permitted additional persons to sue for damages arising from

Johnson’s death, the original complaint named, as additional

plaintiffs, the wrongful death estate of Jensen’s unborn child

and several additional family members other than Jensen and

D.J. The complaint also asserted, based on Navajo law,

direct claims against EXC’s insurer. However, the district

court subsequently granted Defendants’ motion for

judgment on the pleadings and held that Arizona law, not

Navajo law, governed this case. Accordingly, the court held

that “Plaintiffs and Defendants that have been made party to

this suit pursuant only to Navajo and customary law are

dismissed with prejudice.”

Plaintiffs then filed their operative First Amended

Complaint. That complaint asserted two causes of action:

JENSEN V. EXC INC. 9

(1) a claim for personal injuries and related damages caused

by negligence, negligence per se, and aggravated

negligence; and (2) a claim, based on similar alternative

theories of negligence, for wrongful death. The case

ultimately proceeded to a jury trial. After the district court

denied Plaintiffs’ motion for judgment as a matter of law

under Federal Rule of Civil Procedure 50(a), the case was

submitted to the jury, which rendered a special verdict

finding that Defendants were not at fault for the death of

Johnson or for the injuries to Jensen and D.J. The clerk

entered judgment on the jury verdict for Defendants in

December 2019, and Plaintiffs thereafter filed a timely

renewed motion for judgment as a matter of law under Rule

50(b). The district court denied that motion in April 2020,

and Plaintiffs timely appealed. See FED. R. APP. P.

4(a)(4)(A)(i).

II

Plaintiffs argue that the district court erred in allowing,

under the guise of impeachment evidence against Plaintiffs’

expert witnesses, the introduction of inadmissible evidence

from a police report prepared by the Arizona Department of

Public Safety (“ADPS” or “DPS”). We review a district

court’s admission of evidence, including purported

impeachment evidence, for abuse of discretion. See, e.g.,

United States v. Osazuwa, 564 F.3d 1169, 1173 (9th Cir.

2009). We conclude that the district court abused its

discretion and that the error was not harmless. Therefore,

we remand for a new trial.

A

Prior to trial, Plaintiffs filed a motion in limine

concerning the accident reports that had been prepared by

the ADPS and by the Kayenta Police Department. In their

10 JENSEN V. EXC INC.

motion, Plaintiffs conceded that the portions of the police

reports that contained “personal knowledge, photos, and

measurements taken by the investigating officers” were

admissible under Federal Rule of Evidence 803(8)(A)’s

hearsay exception for public records. But to the extent that

the reports contained “discussions, opinions, and

conclusions about what allegedly happened based on

interviews and other inadmissible sources,” Plaintiffs

contended that the reports were inadmissible hearsay under

Rule 802 and also that they were unduly prejudicial under

Rule 403. Therefore, Plaintiffs requested that the district

court exclude “any evidence, testimony, reference, or

argument related to investigation of the accident, including

any conclusions or opinions, that are not based solely on

personal knowledge and measurements.” In their response

to this motion, Defendants stated that they did “not object to

. . . preclusion of hearsay contained within police reports,

coroner’s reports, and medical records that are not subject to

a hearsay exception.” The district court granted Plaintiffs’

motion in limine. In doing so, the court agreed that

Defendants could still “introduce statements in the police

reports that are made by the officer and based on personal

knowledge and observation,” but the court cautioned that,

before seeking to introduce any such statements, Defendants

should first request a “sidebar” to “raise the issue with the

Court.”

On the second day of trial, Plaintiffs called Robert

Turner, whom the district court found to be qualified to

testify as an expert “in commercial vehicle code enforcement

and training.” During his brief direct examination, Turner

testified that, by moving into the left-most westbound lane

of Highway 160 when he exited the Hampton Inn parking

lot, Conlon had violated Arizona Revised Statutes § 28-721,

JENSEN V. EXC INC. 11

which he said generally required the bus to stay in the right-

most lane. See ARIZ. REV. STAT. § 28-721 (2004 ed.).1 On

cross-examination, Turner further opined that Conlon

“should have waited until the Tahoe had passed” before

turning into the highway and that, in his view, the “main

cause” of the accident “was the fact that the bus” moved “out

of its lane” and “was to the left of the lane.” Defense counsel

elicited from Turner that he had reviewed the ADPS report

about the accident, and counsel then asked if “that was one

of the materials or documents [Turner] relied upon in

preparing [his] opinions as an expert witness.” Turner

responded, “It all contributed. I read it all and evaluated it.”

Turner also confirmed that it would be “customary” and

“reasonable” for an expert in his field to review such reports.

Defense counsel then asked for a sidebar, which the court

allowed. Counsel stated that he “want[ed] to be careful

because of a motion in limine,” and he explained that he was

“intending to ask the witness about information he reviewed

in the Arizona Department of Public Safety report that

includes witness statements, statements from the driver, and

actual information provided by the DPS officer in that report

that this witness just testified he relied upon in preparing his

opinions.” Defense counsel argued that he should be

allowed to ask about those items to show “bias of this

witness, because what he’s doing is he’s disregarding every

single witness and every single finding other than” the

findings of another of Plaintiffs’ experts (Gabriel

Alexander). Defense counsel specifically stated that he

wanted to ask Turner about the ADPS report’s conclusion

“that there was no improper driving by the bus.” Plaintiffs’

counsel objected, stating that only the officers’ own

“measurements” and observations should be admitted and

1

The text of that statute is quoted and discussed below. See infra note 9.

12 JENSEN V. EXC INC.

not the “ultimate conclusions by the officers.” Plaintiffs’

counsel also objected that the “opinion by the officer is not

expert testimony opinion.” Defense counsel responded by

arguing that it is proper to ask an expert witness about what

he “read and relied upon in preparing his opinions.” The

court ruled that, because it had “agreed that [Turner] should

be considered as an expert,” it would allow “that limited

question.”

Defense counsel then engaged in the following

questioning:

Q. When you read the Arizona Department of

Public Safety report, you noted in the report

that vehicle number one—excuse me, sir—or

traffic unit number one is the white car driven

by Butch Johnson. Do you recall that?

A. I remember, yes.

Q. And traffic unit two or vehicle number two

is the bus, right?

A. Yes.

Q. And as you recall that the Department of

Public Safety police report indicated that

with respect to vehicle number two, the bus,

there was no improper action, right?

A. I vaguely remember that.

Q. Okay.

A. It’s been awhile since I reviewed that

report.

Q. And in the DPS report, the DPS officer

who investigated the accident who was

JENSEN V. EXC INC. 13

actually out at the scene of the accident,

investigated the accident, took the

measurements, talked to all the witnesses,

also determined that the car driven by Mr.

Johnson was traveling at a speed too fast for

conditions, correct?

A. That may have been in the report, yes.

Q. And the Department of Public Safety

police report shows that vehicle number one,

the car driven by Mr. Johnson, engaged in

unsafe passing?

A. In unsafe passing?

Q. Yes, sir.

A. Like I say, it’s been awhile since I read the

report, so—

Q. Would you disagree with me if I tell you

it says that?

A. I’d have to look at it.

Q. Well, you do agree that the report says

there was no improper action by the bus,

right?

A. I remember some of that, yes.

Q. And you do agree with me that the DPS

report states that the car driven by Mr.

Johnson was traveling at a speed too fast for

conditions, right?

A. Well, if the report says that and it conflicts

with the—if it conflicts—

14 JENSEN V. EXC INC.

Q. Well, ley me stop you, sir, because my

question was only doesn’t the report say that?

A. Does it say that? Yes.

Q. Okay. So the Arizona Department of

Public Safety—And that’s the Highway

Patrol, right, the state police?

A. Right.

Q. They went out to the scene of the accident,

investigated the accident, made

measurements, took photos, correct?

A. Yes.

Q. Talked to witnesses at the scene who saw

the accident, correct?

A. Yes.

Q. And they were out there the same day as

the accident, right?

A. Yes.

Q. And the Arizona Department of Public

Safety report says, with respect to the bus,

there was no improper action, right?

A. Yes.

Q. And says the white car driven by Mr.

Johnson was driving too fast?

A. Could I speak to that?

Q. Well, is the answer yes?

A. Yes.

JENSEN V. EXC INC. 15

Plaintiffs also called Gabriel Alexander, whom the

district court found was qualified to testify as an expert on

“accident reconstruction.” On direct examination,

Alexander opined that, based on the position of the bus’s tire

skid marks, he believed that the bus was over the line of the

left-most westbound lane at the time of the accident.

Alexander’s view was that, because Conlon was aware that

Wisner was trying to pass him on the right before the two

westbound lanes merged down to one, Conlon moved

leftward to allow Wisner to pass and ended up going over

the line into the eastbound lane. Although the point was

sharply disputed at trial, Alexander testified that he believed

that the arrangement of temporary tabs marking the lanes did

not provide for a center, universal turn lane—meaning in his

view that, when Conlon assertedly crossed over the line, the

bus was in the eastbound lanes rather than a center turn lane.

Alexander estimated that, “[p]rior to impact, [Conlon] was

about five feet” over the line. Alexander’s opinion was that,

in reaction to seeing the bus come over the line, Johnson then

veered to his left; that Conlon simultaneously veered back to

his right; and that the two vehicles then collided. Alexander

also opined that Conlon must have been over the center line

because, if he had instead begun moving right from the

westbound lanes, he would have hit Wisner’s vehicle, which

would have been too close to the bus to react in time. The

fact that Wisner had time to react and to stay parallel to the

bus as it drove off the road on the right suggested to

Alexander that the bus had been further to the left from

Wisner when it first began moving over to the right.

On cross-examination, Alexander acknowledged that his

expert report had not claimed that there was no center

universal turn lane and that, during his deposition, he had

agreed that there was such a lane. Alexander further

16 JENSEN V. EXC INC.

acknowledged that his own diagram showed that there was a

center turn lane further east, in front of the Hampton Inn and

the Burger King. Alexander also admitted that, in his

deposition, he had agreed that, at the time of impact, no part

of Johnson’s vehicle was in the eastbound lanes but was

instead “completely in the universal turn lane or even

partially within the westbound lane.” On redirect, Alexander

noted that he had also stated during his deposition that only

one side of what would have been the universal turn lane had

double yellow tabs, meaning that, from Johnson’s

perspective, the lane would appear to be an eastbound lane.

During cross-examination, Alexander was also asked

about his assumption that there had been no contact between

the bus and Wisner’s Tahoe. Although the parties had

formally stipulated that “[t]here was no contact between the

bus and Mr. Wisner’s SUV,” Wisner actually testified at his

deposition that the bus hit his “left-hand mirror,” but no

other part of his vehicle. The relevant deposition excerpts

were presented to the jury, and defense counsel asked

Alexander whether Wisner’s testimony was consistent with

his theory. Alexander responded that he did not “see how it

could have happened” that way, and he agreed that, if Wisner

said that, he was “just wrong.”

At one point in the cross-examination, Defense counsel

confirmed that Alexander had reviewed and relied upon the

ADPS report, and counsel then engaged in the following

colloquy with Alexander:

Q. And the Arizona Department of Public

Safety did investigate this accident, right?

A. Yes.

JENSEN V. EXC INC. 17

Q. And a state trooper went out to the scene

of the accident on the day of the accident and

took photographs and measurements and

talked to witnesses and prepared the report

that you reviewed, right?

A. Well, I’m going to assume that.

Q. Okay. And then based upon the

investigation conducted by the state trooper

at the scene of the accident on the day of the

accident, a report was prepared, correct?

A. That’s correct.

Q. And the report and—and you reviewed the

report—says that traffic unit one, Johnson,

was traveling eastbound on U.S. 160 when it

crossed the center line and collided into

traffic unit two, correct?

A. Yes.

Q. And it also says, with respect to vehicle

number two, the bus, there was no improper

action, correct?

A. That’s correct.

Q. And the Arizona Department of Public

Safety report, the investigating officer also

checked the box that indicates that vehicle

number one, the Johnson car, was traveling at

a speed too fast for conditions, correct?

A. That’s correct.

Defense counsel subsequently mentioned the ADPS

report during his closing argument. After first noting that all

18 JENSEN V. EXC INC.

of the eyewitnesses to the accident testified that Johnson

drove into the bus, defense counsel stated:

The Department of Public Safety

highway patrol officer who was at the scene

of the accident who investigated the accident

on the same day of the accident designated

the Johnson vehicle [as] vehicle number one.

What does that mean?

Well, Mr. Alexander told you that DPS

officers will determine who they think is at

fault, and they will designate that vehicle [as]

vehicle number one. So the DPS officer who

was at the scene of the accident that day,

investigated the accident, talked to witnesses,

took photographs, took measurements, made

the decision that Mr. Johnson’s vehicle was

the at-fault vehicle, vehicle number one.

And the DPS officer went further. The

DPS officer who investigated the accident,

who was at the scene of the accident, who

took photographs, who took statements, who

took measurements stated that the Johnson

vehicle was traveling eastbound on U.S. 160

when it crossed the center line and collided

into traffic unit number two. Traffic unit

number two is the bus.

And the DPS report prepared by the

officer who was at the scene, who

investigated the accident, who took

measurements, who took photographs, who

talked to witnesses and prepared a report

JENSEN V. EXC INC. 19

said, with respect to vehicle number two, the

bus, there was no improper action.

And he also noted that the Johnson

vehicle was traveling at a speed too fast for

conditions, in other words, that he was

speeding.

Defense counsel then argued that Alexander’s opinion

concerning the accident was not credible because Alexander

had changed his view about whether there was a universal

turn lane and because Alexander’s opinion was inconsistent

with all of the eyewitness testimony, with Wisner’s

testimony about his left mirror being hit by the bus, and with

the ADPS report.

B

On appeal, Plaintiffs renew their objections, made in

their pretrial motion in limine and during the sidebar at trial,

that (1) no portion of the ADPS police report should have

been admitted other than the officers’ own “measurements”

and observations; and (2) in particular, the “opinion by the

officer” concerning the accident “is not expert testimony”

and the “ultimate conclusions by the officers” should have

been excluded. We conclude that, on this record, the district

court abused its discretion in allowing Defendants’ counsel

to elicit the opinions expressed in the ADPS report as to the

cause of the accident.

As a general matter, hearsay is an out-of-court statement

offered “to prove the truth of the matter asserted in the

statement,” FED. R. EVID. 801(c)(2), and it is “not

admissible” unless otherwise provided by federal statute or

rules, FED. R. EVID. 802. Among the exceptions provided in

the Federal Rules of Evidence is the exception for public

20 JENSEN V. EXC INC.

records, which states that the rule against hearsay does not

exclude a “record or statement of a public office” that “sets

out . . . a matter observed while under a legal duty to report,

but not including, in a criminal case, a matter observed by

law-enforcement personnel.” FED. R. EVID. 803(8)(A)(ii).2

This public-records hearsay exception applies only if “the

opponent [of admission] does not show that the source of

information or other circumstances indicate a lack of

trustworthiness.” FED. R. EVID. 803(8)(B). We have held

that, under the public-records exception, “entries in a police

report which result from the officer’s own observations and

knowledge may be admitted” in a civil case. United States

v. Morales, 720 F.3d 1194, 1202 (9th Cir. 2013) (emphasis

added) (citation omitted). By contrast, any statements from

third parties that are recounted in a police report involve an

additional layer of hearsay that must be separately justified

by another exception to the hearsay rule. See FED. R. EVID.

805; see also Morales, 720 F.3d at 1202 (stating that “the

exception allowing for a ‘matter observed while under a

legal duty to report’ in Rule 803(8) ‘generally does not pave

the way for official records to prove conclusions resting on

statements by outsiders or to prove what such outsider

statements themselves assert’ unless ‘the outsider’s

statement itself fits an exception’” (citation omitted)).

Contrary to what Plaintiffs suggest, this latter restriction

against the admission, for their truth, of the contents of third-

party statements recounted in police reports was not violated

2

The evidence rules also contain a separate hearsay exception for

business records, see FED. R. EVID. 803(6), but we have held that “this

exception does not apply to records of government agencies, which are

public records for purposes of Rule 803.” United States v. Morales, 720

F.3d 1194, 1201 (9th Cir. 2013); see also United States v. Orozco, 590

F.2d 789, 793–94 (9th Cir. 1979).

JENSEN V. EXC INC. 21

in this case. As our earlier verbatim excerpts of the relevant

questioning and arguments make clear, defense counsel did

not disclose or elicit anything about the actual substance of

any witness statements recounted in the police report.

Instead, he elicited that the officer at the scene took various

witness statements—whose content was not disclosed—and

that the officer then reached a conclusion, based on all of the

information gathered (including those statements), as to how

the accident occurred. See supra at 12–19.

The central question, instead, is whether the district court

properly admitted, in cross-examination of Plaintiffs’

experts, the police report’s conclusions as to how the

accident transpired. That question implicates, in the first

instance, a different provision of the public-records

exception to the hearsay rule, viz., a portion of Rule 803(8)

that allows the admission—absent a showing of lack of

trustworthiness—of a “record or statement of a public

office” that sets out, “in a civil case or against the

government in a criminal case, factual findings from a

legally authorized investigation.” FED. R. EVID.

803(8)(A)(iii); see also FED. R. EVID. 803(8)(B). The

Supreme Court has held that the “factual findings” covered

by this hearsay exception include a “conclusion” or

“opinion” in such a report that “is based on a factual

investigation” as described in the rule and that “satisfies the

Rule’s trustworthiness requirement.” Beech Aircraft Corp.

v. Rainey, 488 U.S. 153, 170 (1988) (construing the same

hearsay exception, which was then in Rule 803(8)(C)). That

construction of the rule would extend to a police report’s

conclusions as to the manner in which a traffic accident

occurred. See, e.g., Simmons v. Chicago & Nw. Transp. Co.,

993 F.2d 1326, 1327–28 (8th Cir. 1993).

22 JENSEN V. EXC INC.

In moving in limine to exclude the police report,

Plaintiffs argued that the report’s conclusions were

untrustworthy and were therefore inadmissible under Rule

803(8). In their response to the in limine motion, Defendants

did not contest that point, and the district court granted the

motion. In later seeking admission of additional portions of

the report, Defendants did not rely on Rule 803(8), nor did

they contend that Plaintiffs had failed to show “a lack of

trustworthiness.” FED. R. EVID. 803(8)(B). At the sidebar,

after Plaintiffs’ counsel reiterated that the court’s in limine

ruling had excluded the “opinion[s]” and “conclusions” of

the officers as hearsay, and Defendants’ counsel again did

not dispute that point. Instead, Defendants’ counsel’s

position was that his proposed line of questioning did not

“really involve[] the motion in limine,” because his purpose

was to “show[] [the] bias” of Plaintiffs’ expert by cross-

examining him about “what he analyzed” and “what he

disregarded.” Moreover, in response to Plaintiffs’ reliance,

in their appellate opening brief, on caselaw construing the

limitations on admission of police reports under Rule 803(6)

and 803(8), Defendants’ answering brief never argued that

the report’s conclusions were admissible under Rule

803(8)(A)(iii). We therefore deem any reliance upon Rule

803(8) to be forfeited, and we proceed on the basis that the

opinions expressed in the report were hearsay that is not

covered by any exception.3

3

In any event, for the reasons discussed below, we conclude that the

police report’s opinion as to the cause of the accident lacked sufficient

independent indicia of trustworthiness to be admissible in the absence of

an adequate foundation as to the expert qualifications of the report’s

author and the methods and reasoning used to reach those conclusions.

See infra at 24–32. These same considerations confirm that, had

Defendants sought to rely on Rule 803(8), the district court would have

abused its discretion had it invoked that rule here.

JENSEN V. EXC INC. 23

Defendants nonetheless contend that the questioning

constituted permissible cross-examination under Rules 703

and 705, which address the extent to which an expert may be

questioned about the bases for his or her opinion. Rule 703

generally allows experts to rely on otherwise inadmissible

evidence in formulating their opinions “[i]f experts in the

particular field would reasonably rely on those kinds of facts

or data in forming an opinion on the subject.” FED. R. EVID.

703. However, the “proponent of the opinion” may not

disclose such otherwise-inadmissible “facts or data” to the

jury unless “their probative value in helping the jury evaluate

the opinion substantially outweighs their prejudicial effect.”

Id. (emphasis added). By contrast, Rule 705 then broadly

allows the opposing party, on cross-examination, to elicit

any “underlying facts or data” on which the opinion was

based. FED. R. EVID. 705. Defendants argue that, because

Plaintiffs’ experts both stated that they had reviewed and

relied on the police report, Rule 705 allowed Defendants to

cross-examine the experts about the report’s contrary

opinion concerning the cause of the accident. We disagree.

In evaluating this argument, we begin with the full text

of Rule 705, which states:

Unless the court orders otherwise, an expert

may state an opinion—and give the reasons

for it—without first testifying to the

underlying facts or data. But the expert may

be required to disclose those facts or data on

cross-examination.

FED. R. EVID. 705 (emphasis added). With respect to the

particular expert who is being examined on the stand, Rule

705 thus distinguishes between three distinct aspects of the

24 JENSEN V. EXC INC.

expert’s opinion testimony, namely: (1) the ultimate

“opinion” that the expert has been found to be qualified to

render in accordance with the strictures of Rule 702; (2) the

“underlying facts” and “data” on which that opinion is

based4; and (3) the “reasons” why the expert drew that

“opinion” from those “underlying facts” and “data.” Id. In

appropriate cases, the “underlying facts” and “data” on

which an expert’s opinion is based may, in turn, include the

opinion of another expert with respect to a subsidiary issue.

See Westfield Ins. Co. v. Harris, 134 F.3d 608, 612 (4th Cir.

1998). And the underlying facts or data on which the

opinion is based may also include facts that are “unfavorable

to the opinion”—i.e., facts that are among those considered

by the expert but that, for one reason or another, were

discounted in formulating the expert’s opinion. See FED. R.

EVID. 705, advis. comm. note (1972 proposed rule).

The question presented here is how these principles

apply in the unique context of a testifying expert’s review of

a contrary opinion rendered by another person on the very

same issue that is the subject of the testifying expert’s

opinion. Defendants’ position is that, simply because

Plaintiffs’ experts’ read the police report and relied on its

data, that report’s contrary opinion on the cause of the

accident is properly deemed to be among the unfavorable

“facts or data” that may be freely elicited on cross-

examination of those experts under Rule 705. But, as we and

other courts have acknowledged, the unique situation of

4

In referencing “the underlying facts or data,” Rule 705 clearly refers

back to the “facts or data” on which the expert has “base[d]” an

“opinion,” as addressed in Rules 702 and 703. See FED. R. EVID. 702(b)

(stating that, to be admissible, expert testimony must, inter alia, be

“based on sufficient facts or data”); FED. R. EVID. 703 (“An expert may

base an opinion on facts or data in the case that the expert has been made

aware of or personally observed.”).

JENSEN V. EXC INC. 25

questioning one expert about the competing opinion of a

non-testifying expert on the very same issue is one that raises

special concerns that defy such a simplistic rule.

In Phillips v. E.I. DuPont de Nemours & Co. (In re

Hanford Nuclear Reserv. Litig.), 534 F.3d 986 (9th Cir.

2008), we expressly “agree[d] with the Fifth Circuit that

reports of other experts cannot be admitted even as

impeachment evidence unless the testifying expert based his

opinion on the hearsay in the examined report or testified

directly from the report.” Id. at 1012 (emphasis added)

(citing Bryan v. John Bean Div., 566 F.2d 541, 546–47 (5th

Cir. 1978)). That principle was easily applied in Phillips,

where (unlike in this case) the opposing counsel cross-

examined an expert with opinions expressed in a document

that the testifying expert had not even read. Id. at 1011–12

(noting that the testifying expert had “never read nor relied

on [the non-testifying expert’s] deposition in rendering his

expert opinion”). But our express endorsement of the Fifth

Circuit’s decision in Bryan confirms that the principle

applied in those cases is not so narrow.

In Bryan, the plaintiff, an automobile mechanic, was

grievously injured when a cast-iron tool used in aligning

wheels “broke into pieces under pressure.” 566 F.3d at 543.

He sued John Bean Corp. (“Bean”), which had designed and

distributed the tool, on strict-liability theories of design

defect and manufacturing defect. Id. at 543, 549. Bean in

turn filed a third-party claim against Midland-Ross Corp.

(“Midland-Ross”), which had manufactured the tool for

Bean. Id. In rebutting the claims of manufacturing defect at

trial, Midland-Ross presented testimony from an expert

(“Walters”), who opined that the tool “as manufactured was

sufficiently strong to sustain the stress it would have

encountered in normal use in the proper manner.” Id. at 544.

26 JENSEN V. EXC INC.

In reaching his opinion, Walters had affirmatively relied on

data provided by two non-testifying metallurgical experts,

one of whom had been retained by the plaintiff and the other

by Bean. Id. Given the adversity between Midland-Ross

and both Bean and the plaintiff, there were aspects of these

non-testifying experts’ opinions that were unfavorable to

Midland-Ross, and “[o]n cross-examination of Walters,

plaintiff’s counsel made maximum use of the opinions

expressed in the two reports.” Id. Indeed, the plaintiff’s

counsel “made much greater use of the opinions than of the

data underlying them.” Id. Midland-Ross objected, arguing

that “the facts recited in the reports were admissible but the

opinions of the experts were not.” Id. The district court

rejected this distinction, concluding that “the opinions were

admissible because they were supporting data for Walters’

opinion.” Id.

The Fifth Circuit reversed, holding that the portions of

the non-testifying experts’ opinions elicited by the plaintiff’s

counsel “were improperly admitted either as evidence of the

basis of the testifying expert’s opinion or as impeachment

evidence.” 566 F.2d at 545. The court noted that, through

this cross-examination, the “opinions” of the non-testifying

experts “were brought before the jury without qualifying the

experts who rendered them” in accordance with the

requirements of Rule 702. Id. at 546. As such, “[t]he jury

had no way of determining whether the opinions were

credible or worthy of belief.” Id. Moreover, no hearsay

exception applied, the court concluded, and the limited

excerpts elicited about the non-testifying experts’ opinions

“lacked any independent guarantee of trustworthiness that

would justify dispensing with cross-examination.” Id.

Finally, the court held that Rule 705 did not authorize

bringing out these opinions on cross-examination of

JENSEN V. EXC INC. 27

Walters, because Walters had not “based his opinion on the

opinion in the examined report,” nor had he “testified

directly from the report.” Id. (emphasis added). Walters

admitted that he used “empirical data contained in the

reports and employed these figures to reach his own

conclusions,” and the court held that such data “were

properly brought out under rule 705.” Id. But the competing

“conclusions reached by the other experts” had not been

relied on by Walters, and they could not impeach his opinion

in the absence of an adequate foundation as to the

“substantive correctness of the other experts’ conclusions.”

Id. (emphasis added). Because no such foundation had been

established, “the conclusions of [the] nontestifying experts

were inadmissible under rule 705 either as the facts and data

on which the testifying expert based his opinion or as

impeachment evidence.” Id. at 547.

We find the reasoning of Bryan, which we endorsed in

Phillips, to be persuasive and dispositive in this case. Here,

“the excerpts proffered by [defense] counsel from the

[police] report[]”—which consisted of the author’s opinion

as to the cause of the accident—“lacked any independent

guarantee of trustworthiness that would justify dispensing

with cross-examination” of the report’s author, and there

was likewise no effort to “qualify[]” as an expert the person

“who rendered” that opinion. 566 F.2d at 546. As Plaintiffs

noted in their motion in limine, the report does not provide

any basis for the conclusions that it reached other than the

statements made by the bus driver (Defendant Conlon) and

one of the bus passengers. Nor does the report provide any

information as to the qualifications of the author to render an

28 JENSEN V. EXC INC.

expert opinion as to the cause of the accident.5 An opinion

rendered by a person of unknown qualifications and

contained in a report that, without any other explanation,

relies uncritically on the hearsay statements of only selected

witnesses and that does not expressly take account of, or

address, any other relevant considerations, does not bear

sufficient indicia of reliability and trustworthiness to be

admitted as a competing expert “opinion” that a testifying

expert may be required to address on cross-examination.

Defendants note that Bryan suggested that a report’s

conclusions might be admissible where “an uninterested,

expert third party prepared the report,” 566 F.2d at 546

(citing Challoner v. Day & Zimmermann, Inc., 512 F.2d 77

(5th Cir.), vacated on other grounds, 423 U.S. 3 (1975)), but

this argument is unavailing. Although the author of the

ADPS report was “uninterested,” there was no basis to

conclude that he was qualified as an “expert.” Moreover,

there is no indication in Challoner that there was any dispute

as to the validity of the underlying methods used by the

government agents who conducted the tests that were

described in the reports at issue in that case. See Challoner,

512 F.2d at 83. Here, as in Bryan, the validity of the

methodology used in the relevant report was disputed and,

in the present case, that validity was not established.

Moreover, as in Bryan, the fact that Walters, the

testifying expert, had read the police report did not provide

sufficient grounds, without more, to cross-examine him

about its competing conclusions. Walters never stated that

“he relied on the conclusions” reached in the report, as

5

The conclusions of the report’s author cannot be deemed to be

admissible lay opinion, because they are not “limited to one that is . . .

rationally based on the [author’s] perception.” FED. R. EVID. P. 701.

JENSEN V. EXC INC. 29

opposed to the “empirical data contained in the reports.”

Bryan, 566 F.2d at 546 (emphasis added). Nor did Walters

open the door to cross-examination about the report’s

competing conclusions by, for example, affirmatively

bringing up those conclusions and attacking them. Cf.

Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 157 (4th

Cir. 1995) (holding that, where a testifying expert stated on

direct examination that “he had read all of these non-

testifying experts’ depositions and disagreed with the

experts’ opinions,” the district court did not abuse its

discretion in permitting cross-examination “as to why he

rejected those opinions,” even though that introduced “what

otherwise would have been inadmissible hearsay”). Under

these circumstances, the report’s opinions—as opposed to its

underlying factual data based on the officer’s observations—

could only provide proper grist for cross-examination if an

adequate foundation were laid to establish “the substantive

correctness” of those conclusions. Bryan, 566 F.2d at 546

(emphasis added). Here, no such foundation appears in the

record.

In arguing for a contrary conclusion, Defendants relied

heavily on the Eighth Circuit’s opinion in Ratliff v. Schiber

Truck Co., 150 F.3d 949 (8th Cir. 1998). In Ratliff, defense

counsel’s cross-examination of the plaintiff’s expert on

accident reconstruction elicited the fact that the state

trooper’s report of the accident opined that, if the plaintiff

had not been speeding, the accident would not have

occurred. See 150 F.3d at 953. The Eighth Circuit held that

the district court did not abuse its discretion in allowing the

cross-examination. See id. at 955. The court held that it did

not matter whether the author of the police report was

qualified as an expert and that the cross-examination was

proper simply because the testifying expert had “reviewed”

30 JENSEN V. EXC INC.

the police report and the “report” was a “document of the

type reasonably relied upon by accident reconstructionists in

forming their opinions.” Id.

We reject the Eighth Circuit’s undifferentiated analysis,

which ignores the unique concerns that we and the Fifth

Circuit have identified with respect to cross-examining

experts about contrary opinions that are contained in hearsay

documents and that lack any adequate foundation as to their

reliability or validity. The fact that accident

reconstructionists rely on police “reports” does not

automatically mean that everything included in such a report

is, without more, fair game for cross-examination. As Bryan

explains, there is a critical difference between relying on the

“empirical data contained” in a report and relying on the

contrary “conclusions” contained in that report. 566 F.2d at

546. Defense counsel’s cross-examination in the instant

case did not establish that Plaintiffs’ experts had relied on

the opinions in the ADPS report and, on this record, they

could not have established that. See Phillips, 534 F.3d at

1012 (holding that “reports of other experts cannot be

admitted even as impeachment evidence unless the testifying

expert based his opinion on the hearsay in the examined

report or testified directly from the report”).6

6

The dissent makes the same mistake, erroneously concluding that cross-

examination was proper under Rule 705 because Plaintiffs’ experts

supposedly relied on a “competing conclusion that they reviewed and

that is of a kind that is reasonably relied upon by other experts.” See

Dissent at 49 (emphasis added); see also id. at 52 (asserting that the

cross-examination allowed here was proper because “that opinion is of a

kind reasonably relied on by other experts in the field” (emphasis

added)). As we have explained, Defendants’ counsel simply did not

establish that Plaintiffs’ experts had relied on the opinions in the ADPS

JENSEN V. EXC INC. 31

Moreover, the risk of unfair prejudice is substantial

when, as here, a party is allowed to cross-examine a properly

qualified expert with a contrary opinion rendered by a person

whose qualifications, methods, and reasoning have not been

adequately established. See FED. R. EVID. 403. The careful

strictures that Rule 702 sets on expert testimony would be

substantially undermined if, in cross-examining an expert, a

contrary expert opinion that the testifying expert has read

and rejected can be placed before the jury with insufficient

foundation as to its adequacy. The risk of unfair prejudice

is particularly great where, as here, the contrary opinion was

rendered by a law enforcement or other government official,

inasmuch as—without any adequate foundation—it puts the

imprimatur of the State behind the contrary view. Indeed,

that seemed to be the only purpose served by the cross-

examination here. Nothing in the principles described above

prevented defense counsel from exploring, in appropriate

cross-examination, why the testifying expert rejected other

competing substantive explanations for how the accident

occurred. But it is quite another matter to put before the jury,

without proper foundation, the additional fact that a

particular person who studied the matter reached the

opposite conclusion.7 In such circumstances, the risk of

report, nor did counsel establish that those (unexplained) opinions were

the kind of facts upon which experts would reasonably rely in forming

their own opinions.

7

The dissent is therefore wrong in contending that our decision would

broadly preclude cross-examination as to alternative explanations or

methodologies that were affirmatively considered and rejected by a

testifying expert. See Dissent at 51–52. Here, the ADPS report did not

meaningfully explain its methodology, and it instead appeared to rely on

uncritical acceptance of the statements of Conlon and one passenger. See

supra at 27–28. Plaintiffs’ experts were examined and cross-examined

32 JENSEN V. EXC INC.

unfair prejudice greatly outweighs the meager probative

value of this limited fact.

Accordingly, we hold that the district court abused its

discretion in allowing defense counsel, on cross-

examination of Plaintiffs’ experts, to elicit the contrary

conclusions about the cause of the accident in the ADPS

report.

C

“[W]hen reviewing the effect of erroneous evidentiary

rulings, we will begin with a presumption of prejudice.”

Obrey v. Johnson, 400 F.3d 691,701 (9th Cir. 2005). Here,

Defendants have failed to carry their burden to establish that

“it is more probable than not that the error did not materially

affect the verdict.” United States v. Bailey, 696 F.3d 794,

803 (9th Cir. 2012) (citation omitted); see also id. (stating

that the “burden to show the harmlessness of the error is on

the party benefitting from the error”).

As noted earlier, the central contested issue in the case

concerned how the accident happened, and the parties’

competing experts drew sharply different conclusions as to

the cause of the accident. Moreover, Plaintiffs’ experts’

analysis played an important role in Plaintiffs’ argument as

to why the eyewitness accounts of the bus passengers who

testified were not reliable. And, as we have explained, the

introduction of the fact that the ADPS had sided with the

defense theory—without any foundation as to the

qualifications of the person rendering that opinion, the

as to why they did not accept those witnesses’ statements at face value,

and in that sense the “methodology,” so to speak, of the ADPS report

was explored on cross-examination. But the further, gratuitous fact that

this view had been accepted by the author of the ADPS report added little

(if any) probative value, and it was highly prejudicial.

JENSEN V. EXC INC. 33

reasoning behind that opinion, or the reliability of the

methods used in reaching it—did nothing more than put the

State’s imprimatur on the defense side. In addition,

Defendants’ counsel exploited the error by making the

ADPS’s endorsement of the defense theory a centerpiece of

his closing argument. Under these circumstances, we cannot

say that the error was more likely than not harmless.

Accordingly, we reverse and remand for a new trial.

III

Although we reverse the judgment rendered after trial,

we must still address Plaintiffs’ argument that the district

court erred in its pretrial ruling dismissing the additional

claims that had been asserted solely under Navajo law,

including claims involving additional parties. The district

court concluded that, because Arizona law governed the

claims arising from the accident, any such claims based on

Navajo law failed as a matter of law. Reviewing de novo,

Rocky Mountain Farmers Union v. Corey, 913 F.3d 940, 949

(9th Cir. 2019), we agree that Arizona law applies rather than

Navajo law.

The Supreme Court has held that, as a matter of federal

law, there are certain limited circumstances in which an

Indian tribe may assert adjudicative jurisdiction and

legislative jurisdiction over the actions of nonmembers of

the tribe within the boundaries of the tribe’s reservation. See

Strate v. A-1 Contractors, 520 U.S. 438, 445–53 (1997);

Montana v. United States, 450 U.S. 544, 565–66 (1981). We

held in our prior ruling in this same matter that the Navajo

Nation lacks adjudicative jurisdiction over Plaintiffs’ claims

against Defendants. 588 F. App’x at 722; see also Strate,

520 U.S. at 454–59 (holding that Indian tribes generally lack

jurisdiction to adjudicate claims against nonmembers arising

34 JENSEN V. EXC INC.

from traffic accidents that occur on state or federal highways

running through an Indian reservation). Because, as a

general matter, a tribe’s “legislative and adjudicative

jurisdiction are coextensive,” Big Horn Cnty. Elec.

Cooperative, Inc. v. Adams, 219 F.3d 944, 950 (9th Cir.

2000), it follows that these federal law principles do not

grant the Navajo Nation jurisdiction to prescribe the

substantive legal rules governing this traffic accident.

Given that the special federal-law rules governing tribal

jurisdiction do not confer legislative jurisdiction on the

Navajo Nation in this case, the governing substantive law in

this diversity suit must be determined under the ordinary

rules applicable under Erie Railroad Co. v. Tompkins, 304

U.S. 64 (1938).8 Accordingly, in determining what law that

governs this case, the district court was required to “apply

the substantive law of the forum in which the court is

located, including the forum’s choice of law rules.”

Insurance Co. of N. Am. v. FedEx Corp., 189 F.3d 914, 919

(9th Cir. 1999) (citing Klaxon Co. v. Stentor Elec. Mfg. Co.,

313 U.S. 487, 496 (1941)). We are aware of no Arizona

authority that has addressed whether the traditional choice-

of-law rules that Arizona applies in determining which

States’ laws should apply to a given dispute may also be

invoked in arguing for application of tribal law. Defendants

argue, and the district court appeared to agree, that

invocation of Arizona choice-of-law rules is inappropriate

8

Contrary to what Plaintiffs contend, nothing in federal law requires a

departure from these principles. Congress’s declaration of purpose in

authorizing funds to construct roads within the Navajo reservation, see

25 U.S.C. § 631 (2012 ed.), does not provide any basis for displacing

state law that would otherwise be applicable under Strate. Nor does this

case involve jurisdiction obtained by a State through coercion of a tribe’s

consent to such jurisdiction. See Three Affiliated Tribes of Fort Berthold

Reservation v. Wold Eng’g, 476 U.S. 877 (1986).

JENSEN V. EXC INC. 35

vis-à-vis tribal law and that there is therefore no basis for

declining to apply Arizona substantive law here. Plaintiffs

acknowledge the lack of directly controlling caselaw on this

question, but they point to academic commentary endorsing

the notion that “[a]pplication of choice-of-law principles

will sometimes lead state and federal courts to apply tribal

law[ ].” COHEN’S HANDBOOK OF FEDERAL INDIAN LAW

§ 7.06[2] (2012 ed.). We need not resolve this issue. Even

assuming that Arizona choice-of-law principles may be

applied in addressing an argument that tribal law should be

applied rather than Arizona law, those principles favor the

application of Arizona substantive law here.

Arizona courts generally follow the Second Restatement

of Conflict of Laws in determining the applicable law in a

tort case. See Pounders v. Enserch E&C, Inc., 306 P.3d 9,

11 (Ariz. 2013); Bates v. Superior Ct., 749 P.2d 1367, 1369

(Ariz. 1988). Under the Restatement, the applicable law

with respect to “an issue in tort” is that of the jurisdiction

“which, with respect to that issue, has the most significant

relationship to the occurrence and the parties.”

RESTATEMENT (SECOND) OF CONFLICT OF LAWS

(“RESTATEMENT”) § 145(1). In actions for personal injury

or wrongful death, the law of the place “where the injury

occurred determines the rights and liabilities of the parties,

unless, with respect to the particular issue, some other

[jurisdiction] has a more significant relationship . . . to the

occurrence and the parties.” RESTATEMENT §§ 146, 175; see

also Pounders, 306 P.3d at 11; Bates, 749 P.2d at 1369–70.

In assessing which jurisdiction has the more “significant

relationship,” a court applying the Restatement must

consider several factors, including the “place where the

injury occurred”; the “place where the conduct causing the

injury occurred”; the “domicile, residence, nationality, place

36 JENSEN V. EXC INC.

of incorporation and place of business of the parties”; and

the “place where the relationship, if any, between the parties

is centered.” Bates, 749 P.2d at 1370 (quoting

RESTATEMENT § 145). The application of these factors “is

qualitative, not quantitative.” Id. “The court must evaluate

the contacts ‘according to their relative importance with

respect to the particular issue.’” Id. (quoting RESTATEMENT

§ 145(2)).

The first two factors—the “place where the injury

occurred” and the “place where the conduct causing the

injury occurred”—both favor Arizona law. Although the

accident occurred within the boundaries of the Navajo

reservation, Arizona’s right-of-way over U.S. Highway 160

renders the highway equivalent, “for nonmember

governance purposes, to alienated, non-Indian land.” Strate,

520 U.S. at 454 (footnote omitted). For purposes of a suit

against nonmembers, we therefore deem the location of the

accident and the injuries as being within Arizona’s

jurisdiction and not the Navajo Nation’s. The third factor—

“[t]he domicile, residence, nationality, place of

incorporation and place of business of the parties”—weighs

in favor of Navajo law because Plaintiffs are domiciled in

the Navajo Nation and none of the Defendants are domiciled

in Arizona. Bates, 749 P.2d at 1371. The fourth factor—the

“place where the relationship, if any, between the parties is

centered”—is irrelevant here, because the parties had no pre-

existing relationship. Pounders, 306 P.3d at 15. On balance,

we conclude that these factors weigh in favor of applying

Arizona law.

Consequently, Arizona law applies unless the “general

factors” concerning choice of law that are contained in § 6

of the Restatement warrant a different result. Bates, 749

P.2d at 1371; see also Pounders, 306 P.3d at 15. These

JENSEN V. EXC INC. 37

factors include (1) “the needs of the interstate and

international systems”; (2) “the relevant policies of the

forum”; (3) “the relevant policies of other interested states

and the relative interests of those states in the determination

of the particular issue”; (4) “the protection of justified

expectations”; (5) “the basic policies underlying the

particular field of law”; (6) “certainty, predictability, and

uniformity of result”; and (7) “ease in the determination and

application of the law to be applied.” RESTATEMENT, § 6(2).

Several of these factors have little, if any, relevance here.

Because the parties have not identified any respect in which

the relationship between the Navajo Nation and Arizona

would be affected by the choice of law, the first factor—the

needs of the interstate system—is neutral. And because

“accidents are not planned,” the fourth and sixth factors—

the “protection of justified expectations” and “certainty,

predictability, and uniformity of result”—are essentially

irrelevant here. Bryant v. Silverman, 703 P.2d 1190, 1195–

96 (Ariz. 1985). The key factors are the remaining ones—

viz., the relevant tort-law policies of Arizona and the Navajo

Nation, their relevant interests in applying their law to this

dispute, and the ease of determining and applying the

relevant law.

Both Arizona law and Navajo law provide compensation

to injured victims and allow punitive damages in negligence

cases. Bryant, 703 P.2d at 1195–96; Cummings v. Yazzie, 7

Navajo Rptr. 479, 484–89 (Navajo D. Ct. 1996). The only

substantive differences that the parties have clearly

identified between Arizona law and Navajo law are that

(1) the latter permits a wider range of plaintiffs to sue for

wrongful death and also permits recovery for the wrongful

death of an unborn child who is not yet “viable,” cf.

Summerfield v. Superior Ct., 698 P.2d 712, 724 (Ariz. 1985)

38 JENSEN V. EXC INC.

(holding that the Arizona wrongful death statute authorizes

a cause of action for a “stillborn, viable fetus” (emphasis

added)); and (2) Navajo law, according to Plaintiffs, permits

direct recovery against insurers. The differences in

substantive law concerning damages weigh in favor of

Navajo law. The Arizona Supreme Court has held that

issues concerning the compensation of an injured tort

plaintiff are “primarily a concern of the [jurisdiction] in

which [the] plaintiff is domiciled.” Bryant, 703 P.2d at

1194. Moreover, Arizona has at best a weak interest in

limiting the liability of non-Arizona defendants who would

face greater liability under the law of another jurisdiction in

which defendants are also not domiciled. Id. at 1196

(holding that Colorado has “no” interest in protecting an

Arizona resident defendant from the law of its Arizona

domicile, even for an accident occurring in Colorado).

By contrast, the difference in the availability of an action

against insurers weighs in favor of Arizona law. As

Plaintiffs acknowledge, the availability of such a claim is not

entirely settled under Navajo law; indeed, Plaintiffs argue

that it might warrant certification to the Navajo Nation

Supreme Court. Moreover, in a footnote in their appellate

brief, Plaintiffs further state that there is uncertainty as to

whether Navajo law would apply a heightened standard of

care in a case such as this one, and concede that this issue

too may warrant certification to the Navajo Supreme Court.

These acknowledged uncertainties as to the content of

Navajo law implicate the Restatement factor addressing the

“ease in the determination and application of the law to be

applied,” and they weigh heavily in favor of applying

Arizona law. RESTATEMENT, § 6(2)(g).

We conclude that, considered as a whole, the general

factors in Restatement § 6 do not warrant reaching a

JENSEN V. EXC INC. 39

different conclusion from the one that follows from an

evaluation of the specific factors to be considered in tort

cases under § 145 of the Restatement. See Bates, 749 P.2d

at 1371. On this basis, we affirm the district court’s

conclusion that Arizona law applies and its resulting

dismissal of all claims that were asserted below only under

Navajo law.

IV

Finally, Plaintiffs challenge the district court’s refusal to

hold that, as a matter of law, Conlon’s negligence

proximately caused the accident. In ruling on Plaintiffs’

motion for summary judgment, the district court held that,

by “mov[ing] from the right lane to the left lane” of the

westbound portion of Highway 160, Conlon had, “as a

matter of law . . . breached his duty to stay in the right lane

and violated [Arizona Revised Statutes] Section 28-721.”9

9

At the time of the accident, § 28-721 provided:

A. On all roadways of sufficient width, a person shall drive a

vehicle on the right half of the roadway except as follows:

1. When overtaking and passing another vehicle

proceeding in the same direction under the rules

governing the movement.

2. When the right half of a roadway is closed to traffic

while under construction or repair.

3. On a roadway divided into three marked lanes for

traffic under the rules applicable on the roadway.

4. On a roadway designated and signposted for one-

way traffic.

B. On all roadways, a person driving a vehicle proceeding at

less than the normal speed of traffic at the time and place and

40 JENSEN V. EXC INC.

The district court nonetheless denied summary judgment to

Plaintiffs on the further issue of whether that breach was a

proximate cause of the accident, holding that a reasonable

jury could resolve that causation issue in favor of either

party. At trial, Plaintiffs renewed their proximate causation

arguments in seeking judgment as a matter of law under Rule

50(a) and Rule 50(b), but the district court denied those

motions. On appeal, Plaintiffs challenge both the district

court’s denial of summary judgment and the district court’s

denial of judgment as a matter of law.

A

As a threshold matter, we agree with Defendants that,

under Ortiz v. Jordan, 562 U.S. 180 (2011), we may not

review the district court’s denial of summary judgment on

the causation issue and that we are instead limited to

reviewing only the denial of Plaintiffs’ comparable

arguments in its Rule 50 motions at trial.

The normal rule is that, “[o]nce the case proceeds to trial,

the full record developed in court supersedes the record

existing at the time of the summary-judgment motion.”

Ortiz, 562 U.S. at 184. Accordingly, where an actual trial

has intervened between the summary judgment ruling and

the final judgment on appeal, any claim that the evidence is

under the conditions then existing shall drive the vehicle in the

right-hand lane then available for traffic or as close as

practicable to the right-hand curb or edge of the roadway,

except when overtaking and passing another vehicle proceeding

in the same direction or when preparing for a left turn at an

intersection or into a private road or driveway.

ARIZ. REV. STAT. § 28-721 (1996). The district court’s order did not

specify whether it based its finding of negligence per se on paragraph A

or paragraph B.

JENSEN V. EXC INC. 41

insufficient to support a verdict in one side’s favor “must be

evaluated in light of the character and quality of the evidence

received in court” at that trial. Id.; see also Dupree v.

Younger, 598 U.S. 729, 735–36 (2023) (reaffirming this

aspect of Ortiz and holding that “an appellate court’s review

of factual challenges after a trial is rooted in the complete

trial record, which means that a district court’s factual

rulings based on the obsolete summary-judgment record are

useless”). Accordingly, under Ortiz, we may not review

Plaintiffs’ argument that, in applying Arizona causation

standards at summary judgment, the district court

misapplied those standards “in the context of the relevant

facts.” Instead, we must review these issues in light of the

record developed at trial and in the context of Plaintiffs’

Rule 50 motions raising comparable issues.

Plaintiffs contend that the causation issues that they

raised at summary judgment qualify as “purely legal” issues

that are not subject to Ortiz’s rule under our decision in

Booker v. C.R. Bard, Inc., 969 F.3d 1067, 1072 (9th Cir.

2020). See also Dupree, 598 U.S. at 735, 738 (holding that

“purely legal issues resolved at summary judgment” are not

subject to Ortiz’s rule and instead “merge into the final

judgment, at which point they are reviewable on appeal”).

That is wrong. As Dupree explains, “a purely legal question

is, by definition, one whose answer is independent of

disputed facts” and as to which “factual development at trial

will not change the district court’s answer.” Id. at 737. The

causation issues raised by Plaintiffs at summary judgment

were not clean legal issues that can be meaningfully

separated from one’s understanding of the underlying facts

concerning how the accident occurred. Because the record

concerning those facts changed from summary judgment to

the trial, the factual record at summary judgment is

42 JENSEN V. EXC INC.

“obsolete” and cannot provide the basis for our review of

those issues. Id. at 736. If Plaintiffs are correct in

contending that the issue of proximate causation should have

been resolved in their favor as a matter of law in this case,

that argument can only be assessed, under Ortiz and Dupree,

in the context of the factual record develop at trial and in the

context of the contentions Plaintiffs made in their Rule 50

motions.

B

Despite our decision to reverse the judgment for

Defendants on other grounds, we will proceed to review

Plaintiffs’ arguments concerning their Rule 50 motions. We

do so for two reasons. First, if Plaintiffs are correct that,

notwithstanding any other error, they should have been

granted judgment as a matter of law at the jury trial, then

there should be no remand for a new trial on liability.

Second, the causation issues, which have been fully briefed

in this court, would arise again on any remand, and the

parties and the district court would benefit from our

guidance on those issues. Turning to the merits of those

questions, we hold that the district court properly denied

Plaintiffs’ motions for judgment as a matter of law.

To establish negligence under Arizona law, “a plaintiff

must prove four elements: (1) a duty requiring the defendant

to conform to a certain standard of care; (2) a breach by the

defendant of that standard; (3) a causal connection between

the defendant’s conduct and the resulting injury; and

(4) actual damages.” Gipson v. Kasey, 150 P.3d 228, 230

(Ariz. 2007). “The negligence complained of need not be

the sole cause, but need only be a proximate cause to support

a verdict for the plaintiff.” Ariz. State Highway Dep’t v.

Bechtold, 460 P.2d 179, 183 (Ariz. 1969). “The proximate

JENSEN V. EXC INC. 43

cause of an injury is that which, in a natural and continuous

sequence, unbroken by any efficient intervening cause,

produces an injury, and without which the injury would not

have occurred.” Robertson v. Sixpence Inns of Am., Inc., 789

P.2d 1040, 1047 (Ariz. 1990) (citations omitted). In denying

Plaintiffs’ Rule 50(b) motion, the district court held that a

reasonable jury could find that Johnson crossed over into

Conlon’s lane and that Johnson’s actions in doing so

constituted an unforeseeable intervening cause that would

permit the jury to find that Conlon’s negligence in driving in

the left lane was not the proximate cause of the accident.

Plaintiffs raise two principal arguments in challenging this

ruling, but neither has merit.

Plaintiffs argue that, contrary to the district court’s

reasoning, Johnson’s asserted action in crossing into the left

westbound lane cannot be deemed to be an “intervening”

cause given that Conlon continued to negligently drive in

that left lane up to the time of impact. See Zelman v. Stauder,

466 P.2d 766, 769 (Ariz. Ct. App. 1970) (stating that “where

defendant’s negligent course of conduct (as distinguished

from the risk of harm created) actively continues up to the

time the injury is sustained, then any outside force which is

also a substantial factor in bringing about the injury is a

concurrent cause of the injury and never an ‘intervening’

force”). As Plaintiffs note, the Arizona statute that was the

basis for the district court’s negligence per se finding

prohibits “driving a vehicle” in the wrong portion of the

road, not merely the initial act of moving into that portion.

This argument fails because it overlooks the competing duty

that arose under Arizona Revised Statues § 28-729(1) when

Wisner’s Chevy Tahoe moved into the right-hand lane next

to Conlon’s bus. That statute requires a driver to stay

“within a single lane” and “not move the vehicle from that

44 JENSEN V. EXC INC.

lane until the driver has first ascertained that the movement

can be made with safety.” ARIZ. REV. STAT. § 28-729(1).

On the record at trial, a reasonable jury could find that, once

the Tahoe moved next to the bus, Conlon could no longer

move with safety into the right lane and that it would then

have been negligent, and a clear violation of § 28-729(1), for

him to have attempted to do so. Under this view of the

evidence, Conlon’s “negligent course of conduct” in

violation of § 28-721 “terminated” once his superseding

duty under § 28-729(1) arose. Zelman, 466 P.2d at 769. On

this basis the jury could permissibly find that Conlon’s

earlier negligence per se had terminated and that Johnson’s

actions therefore constituted an “intervening” cause.

Plaintiffs also argue that even if Johnson’s actions were

an intervening cause, they were not unforeseeable. “Under

Arizona law as developed in negligence cases, an

intervening cause does not relieve an earlier actor of liability

if the intervening cause was reasonably foreseeable.”

d’Hedouville v. Pioneer Hotel Co., 552 F.2d 886, 893 (9th

Cir. 1977). Thus, “an intervening force becomes a

superseding cause only when its operation was both

unforeseeable and when with the benefit of ‘hindsight’ it

may be described as abnormal or extraordinary.” Rossell v.

Volkswagen of Am., 709 P.2d 517, 526 (Ariz. 1985).

Because, according to Plaintiffs, the very purpose of § 28-

721’s stay-on-the-right rule is to avoid head-on collisions

with traffic coming in the other direction, see United

Dairymen of Ariz. v. Fisher-Miller Hay & Dev. Co., 609 P.2d

609, 612 (Ariz. Ct. App. 1980), Johnson’s actions must be

deemed to be reasonably foreseeable as a matter of law. This

argument’s focus is too myopic. Although Conlon’s original

decision to proceed in the left lane was concededly

negligent, a reasonable jury could find that it was not

JENSEN V. EXC INC. 45

reasonably foreseeable that Johnson’s vehicle would enter

that lane at precisely the moment in which Conlon could not

safely change lanes. The issue of causation was properly

submitted to the jury.

V

For the foregoing reasons, we affirm the judgment in

Defendants’ favor to the extent that it dismissed all claims,

including claims involving additional parties, based on

Navajo law. We reverse the judgment on the remaining

claims that were submitted for trial, and we remand for a new

trial.

AFFIRMED IN PART, REVERSED IN PART, AND

REMANDED.

WALLACE, Circuit Judge, concurring in part and dissenting

in part:

I agree with my colleagues that Arizona state law

governs this diversity action and that the district court did

not err in denying the Plaintiffs’ motion for judgment as a

matter of law. However, I disagree with my colleagues on

their resolution of the evidentiary question. The majority

opinion vacates and remands for a new trial, concluding that

an expert may be cross-examined on conclusions contained

within an inadmissible report that the expert reviewed and

rejected only if those conclusions have an independent,

sufficient guarantee of trustworthiness. For the following

reasons, I respectfully dissent on that issue and would affirm

the district court.

46 JENSEN V. EXC INC.

I.

The proper extent of cross examination of an expert

witness begins with the scope of materials that an expert

reviewed. Federal Rule of Evidence 703 provides that an

expert witness may base his or her opinion on inadmissible

“facts or data,” provided that “experts in the particular field

would reasonably rely on those kinds of facts or data in

forming an opinion.” Fed. R. Evid. 703. The inadmissible

“facts or data” that experts may consider include the reports,

opinions, and conclusions of other non-testifying witnesses.

See Paddack v. Dave Christensen, Inc., 745 F.2d 1254,

1262–63 & n.14 (9th Cir. 1984) (holding that an expert

accountant may base his opinion on facts and conclusions

contained in audit reports that are otherwise inadmissible);

see also Fed. R. Evid. 703 advis. comm. note, 56 F.R.D. 183,

283 (1973) (approving of an expert physician who “bases his

diagnosis on information from numerous sources and of

considerable variety, including statements by patients,

reports and opinions from nurses, technicians, and other

doctors, hospital records, and X rays”). Any facts, data, and

conclusions that an expert considers and relies upon are not

admissible as substantive evidence, but “solely as a basis for

the expert opinion.” United States v. Sims, 514 F.2d 147,

149–50 (9th Cir. 1975); see also Paddack, 745 F.2d at 1262–

63 (holding that materials underlying an expert’s report were

“admissible only for the limited purpose of explaining the

basis of [the expert’s] testimony”).

Trial judges have a limited role in determining whether

the underlying inadmissible facts, data, and conclusions

reviewed were appropriate to consider. Once a court makes

the legal determination that the facts or data are of a “type”

reasonably relied on by other experts, a qualified expert is

left to determine how much weight—if any—to give those

JENSEN V. EXC INC. 47

facts and data when formulating his or her opinion. See

United States v. W.R. Grace, 504 F.3d 745, 765 (9th Cir.

2007) (“The expert is, in the first instance, the judge of what

resources would help him to form an opinion, and he can

filter out as irrelevant prejudicial information.”); Sims, 514

F.2d at 149 (holding that courts “should . . . leave to the

expert the assessment of the reliability of the statements on

which he bases his expert opinion”). This principle is

premised on the notion that a qualified expert is “fully

capable of judging for himself what is, or is not, a reliable

basis for his opinion.” Sims, 514 F.2d at 149; see also

Manocchio v. Moran, 919 F.2d 770, 780 (1st Cir. 1990)

(“Rule 703 reflects a recognition of the expert’s integrity and

specialized skill, which ‘will keep him from basing his

opinion on questionable matter.’”), quoting Weinstein’s

Evidence § 803(4)[01] at 803-146 (1990). In other words,

Rule 703 trusts primarily the qualified expert to “separate

the wheat from the chaff” and to use only reliable, reputable

sources. Sims, 514 F.2d at 149. No further judicial

guarantee of reliability is required.

Cross-examination is available to question the bases of

the expert witness’s opinion and to test the credibility and

reliability of those bases. Federal Rule of Evidence 705

places the onus on the cross-examining attorney to elicit the

“underlying facts and data” considered by the expert. See

Fed. R. Evid. 705; cf. Daubert v. Merrell Dow Pharm., Inc.,

509 U.S. 579, 596 (1993). This rule further provides for

cross-examination on “unfavorable” facts or opinions that

were considered but ultimately disregarded or discounted by

the expert. See Fed. R. Evid. 705 advis. comm. note, 56

F.R.D. 183, 286 (1973). In essence, the expert witness is

subject to cross-examination to explain how and why he or

she “separate[d] the wheat from the chaff.” Sims, 514 F.2d

48 JENSEN V. EXC INC.

at 149. With the benefit of cross-examination on the

expert’s decisional process, the trier of fact is “then capable

of judging the credibility of the [expert] witness.” Id.

There are limitations to cross-examination. A

questioning attorney may only cross examine an expert

witness on (1) subject matter discussed during direct

examination or other “matters affecting the witness’s

credibility,” as well as on (2) the “underlying facts and data”

reviewed and considered by the expert. Fed. R.

Evid. 611(b); Fed. R. Evid. 705; see also Phillips v. E.I.

DuPont de Nemours & Co. (In re Hanford Nuclear Res.

Litig.), 534 F.3d 986, 1012 (9th Cir. 2008) (holding that an

expert witness cannot be impeached with the reports of other

experts “unless the testifying expert based his opinion on the

hearsay in the examined report or testified directly from the

report”). Moreover, the questioning attorney cannot elicit

the inadmissible facts, data, and conclusions considered by

the expert witness to prove substantive evidence, but only to

“help the factfinder understand the expert’s thought process

and determine what weight to give to the expert’s opinion.”

Williams v. Illinois, 567 U.S. 50, 78 (2012). Similarly,

impeachment of the expert witness on the underlying

materials considered “proves only that the declarant lacks

credibility”; it does not prove the truth of the underlying

facts, data, and conclusions. Urooj v. Holder, 734 F.3d

1075, 1078–79 (9th Cir. 2013), quoting Robert E. Jones,

Federal Civil Trials & Evidence § 8:1954 (2013).

II.

With these principles in mind, I would hold that the

district court did not abuse its discretion in permitting the

Defendants’ counsel to ask the Plaintiffs’ experts about the

police officer’s report and conclusions. The experts

JENSEN V. EXC INC. 49

reviewed the police officer’s report and testified that such a

report is of a kind on which experts in the field reasonably

rely. The Plaintiffs did not argue otherwise at trial. As it is

not disputed that such a report—including its facts and

conclusions—is of a kind reasonably relied on by experts,

and as the Plaintiffs’ experts reviewed the report, it has

sufficient reliability under Rule 703 to be considered and to

be the subject of cross-examination under Rule 705. At least

two other circuits to consider this question agree. See Ratliff

v. Schiber Truck Co., Inc., 150 F.3d 949, 955 (8th Cir. 1998)

(“[The expert] admitted that he had read the report prior to

submitting his own report. Therefore counsel was free to

cross-examine the expert as to all documents he reviewed in

establishing his opinion.”); Vodusek v. Bayliner Marine

Corp., 71 F.3d 148, 157 (4th Cir. 1995) (“Once [the expert]

testified that he had read and rejected the other experts’ out-

of-court opinions on the source of the fire, defendants were

free to explore the basis for that disagreement and to attempt

to discredit [that] conclusion.”). Such questioning was not

admissible to provide the truth of the officer’s report, but

only to test the expert witness’s credibility and decisional

process. See Sims, 514 F.2d at 149–50; Paddack, 745 F.2d

at 1262–63. The evidentiary rules do not demand any

additional guarantees of reliability or trustworthiness at

cross-examination.

III.

The majority appears to agree with much of the general

framework above. The majority accepts that expert

witnesses may review and consider conclusions reached by

other non-testifying individuals. The majority also agrees

that testifying expert witnesses are subject to cross-

examination on “unfavorable” materials that they considered

and rejected. Yet the majority concludes that testifying

50 JENSEN V. EXC INC.

expert witnesses need not explain on cross-examination why

they disagreed with a competing conclusion that they

reviewed and that is of a kind that is reasonably relied upon

by other experts unless the cross-examining attorney

demonstrates that the competing conclusion has “sufficient

indicia of reliability and trustworthiness.” Relying on a Fifth

Circuit opinion to which our court cited once in passing, the

majority holds that trial judges must now decide whether the

bases underlying the competing, out-of-court report, and the

qualifications of its author, pass muster. Only then must a

testifying expert speak to his or her review of and

disagreement with the report’s conclusions.

This holding imposes a heightened judicial reliability

standard beyond what Rule 703 requires. Once the testifying

expert has been qualified, Rule 703 requires merely that a

trial judge inquire into whether the underlying materials are

of a “type” reasonably relied upon; the trial judge does not

review the substantive sufficiency of each material

considered. See Sims, 514 F.2d at 149 (observing that

Rule 703 rejected the previous rule that required

inadmissible hearsay evidence relied upon by experts to be

subject to “verification” before being presented to a trier of

fact); W.R. Grace, 504 F.3d at 765. Determining the

substantive reliability of the underlying materials falls

principally to the expert. See Sims, 514 F.2d at 149 (holding

that courts “should . . . leave to the expert the assessment of

the reliability of the statements on which he bases his expert

opinion”); W.R. Grace, 504 F.3d at 765. The majority’s rule

invades the province of the expert and improperly supplants

the expert with the trial judge.

In reaching this conclusion, the majority conflates non-

substantive cross-examination evidence with substantive

hearsay evidence. The majority, relying on Bryan, requires

JENSEN V. EXC INC. 51

trial judges to determine the “substantive correctness” of the

competing conclusion’s methodology in order to deem that

out-of-court conclusion “admitted as a competing expert

‘opinion.’” The Fifth Circuit in Bryan justified this rule by

likening Rule 705 to an “exception[] to the hearsay rule,”

thereby requiring the trial judge to “comport[] with the

concerns of the hearsay rule” and ensure sufficient

trustworthiness and reliability before permitting cross-

examination on a competing conclusion considered by the

testifying expert. 566 F.2d 541, 545–46 (5th Cir. 1978).

However, cross-examination and impeachment

regarding an underlying report reviewed and rejected by a

testifying expert does not seek to substantively admit the

out-of-court report as a Rule 702 expert opinion. Rather,

when a cross-examining attorney questions an expert

witness on his or her consideration of the competing

conclusions reached by another, this line of questioning is

admitted only to test “the expert’s thought process” and the

expert’s credibility. Williams, 567 U.S. at 78; Paddack, 745

F.2d at 1262 n.11. By requiring additional guarantees of

reliability, Bryan and the majority’s rule equates the cross-

examination of the bases underlying an expert’s opinion with

the admission of substantive evidence used to prove the truth

of the matter asserted. This court should not restrict

vigorous cross-examination merely because of unrelated and

inapplicable concerns regarding the substantive admission

of hearsay evidence.1

1

The Bryan court’s rule requiring an “independent guarantee of

trustworthiness,” which the majority adopts, bears striking similarity to

Rule 807’s residual exception to the hearsay rules. Compare Bryan, 566

F.2d at 546 with Fed. R. Evid. 807 (requiring “sufficient guarantees of

trustworthiness” under the residual exception to the hearsay rule). This

52 JENSEN V. EXC INC.

The ultimate effect of the majority opinion’s rule is to

disarm cross-examining attorneys and shield testifying

expert witnesses. Rule 705 places “the full burden of

exploration of the facts and assumptions underlying the

testimony of an expert witness squarely on the shoulders of

opposing counsel’s cross-examination.” Smith v. Ford

Motor Co., 626 F.2d 784, 793 (10th Cir. 1980) (internal

quotation marks and citation omitted); Int’l Adhesive

Coating Co., Inc. v. Bolton Emerson Int’l, Inc., 851 F.2d

540, 545 (1st Cir. 1988) (“The burden is on opposing counsel

through cross-examination to explore and expose any

weaknesses in the underpinnings of the expert’s opinion.”).

Under Rule 703, a qualified expert may consider and rely on

the opinion of another, as long as that opinion is of a kind

reasonably relied on by other experts in the field. See

Paddack, 745 F.2d at 1262–63 & n.14. It disarms an

opposing party if an expert could review and discount a

conclusion of another but be shielded on cross-examination

from explaining why that conclusion was reviewed and

rejected.2 See generally United States v. A & S Council Oil

Co., 947 F.2d 1128, 1135 (4th Cir. 1991) (“Rule 703 creates

a shield by which a party may enjoy the benefit of

inadmissible evidence by wrapping it in an expert’s opinion;

Rule 705 is the cross-examiner’s sword, and, within very

broad limits, he may wield it as he likes.”). This in turn

hinders the jury, as the sole trier of fact and credibility, who

is deprived of facts concerning how the testifying expert

further suggests that Bryan conflated the non-hearsay impeachment of

facts and conclusions reviewed by an expert with the substantive

admissibility of hearsay evidence.

2

The majority’s attempt to blunt the impact of its holding, by suggesting

that some of the cross-examination that occurred here was permissible,

merely underscores its intent to saddle the trial judge with additional

gatekeeping responsibilities not contained in Rule 703.

JENSEN V. EXC INC. 53

“separate[d] the wheat from the chaff.” Sims, 514 F.2d

at 149.

IV.

I turn now to Federal Rule of Evidence 403. As I have

demonstrated, the majority opinion conflicts with generally

applicable evidentiary principles concerning the

impeachment and cross-examination of expert witnesses.

Nonetheless, Rule 403 permits trial courts to exclude

otherwise-permissible questioning if the probative value is

substantially outweighed by the risk of unfair prejudice or

influence. See United States v. Hinkson, 585 F.3d 1247,

1267 (9th Cir. 2009) (en banc). Exclusion under Rule 403 is

an “extraordinary remedy to be used sparingly.” United

States v. Mende, 43 F.3d 1298, 1302 (9th Cir. 1995), quoting

United States v. Patterson, 819 F.2d 1495, 1505 (9th Cir.

1987). This court must give “great deference” to a trial

court’s Rule 403 determination. Hinkson, 585 F.3d at 1267.

I cannot say that the district court abused its discretion

under Rule 403. The district court granted “limited” cross-

examination concerning how the expert arrived at his

opinion following his review of the police report. While the

fact that a police officer reached a competing conclusion

may risk carrying the imprimatur of the State, the Plaintiffs’

experts had ample opportunity to explain the weaknesses of

the officer’s report and the reasons why they disregarded the

report. I agree that the Defendants’ attorney acted

improperly and attempted to put the substantive truth of the

police report’s conclusions before the jury, going so far as

discussing the report’s conclusions during closing argument.

However, the solution to such gamesmanship is for the

opposing party to request a Rule 105 limiting instruction and

to object during closing arguments. See generally W.R.

54 JENSEN V. EXC INC.

Grace, 504 F.3d at 759 n.7. The Plaintiffs did neither. The

Plaintiffs cannot now claim the benefit of their mistake and

be granted a new trial on the theory that the Defendants’

questioning was too prejudicial when they failed to request

a limiting instruction that would have minimized the

prejudicial effect of the questions.

V.

“A district court is vested with broad discretion to

make . . . evidentiary rulings conducive to the conduct of a

fair and orderly trial.” Campbell Indus. v. M/V Gemini, 619

F.2d 24, 27 (9th Cir. 1980). For the above reasons, I

conclude that the district court did not abuse its discretion in

permitting the Defendants’ counsel to cross-examine the

Plaintiffs’ experts on their consideration of a substantively-

inadmissible competing opinion rendered by a police officer.

Once the experts reviewed the officer’s report, and once the

trial judge determined that the report was of a kind

reasonably relied upon by other experts in the field, the

report was sufficiently reliable to be considered and to be the

subject of limited cross-examination. Because I would

affirm the district court in all respects, I respectfully dissent.