Meador v. Aramark Sports and Entertainment Services LLC

• Court: District Court, D. Arizona
• Decided: April 23, 2021
• Docket: 3:19-cv-08345
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Larry Meador, et al., No. CV-19-08345-PCT-JJT

10 Plaintiffs, ORDER

11 v.

12 Aramark Sports and Entertainment Services LLC, 13 Defendant. 14 15 At issue is Plaintiffs Larry Meador and Annette Meador’s Motion to Strike Expert 16 Reports, Testimony and Video Reenactments Disclosed by Aramark (Doc. 72, Pls.’ Mot. 17 to Strike), to which Defendant Aramark Sports and Entertainment Services LLC 18 (“Aramark”) filed a Response (Doc. 79, Def.’s Resp.), and Plaintiffs filed a Reply 19 (Doc. 85). Also at issue are Aramark’s Motion to Exclude Expert Testimony of John Sutton 20 Under the Daubert Standard (Doc. 73, Def.’s Mot. to Exclude I) and Motion and Points 21 and Authorities to Exclude Expert Testimony of Joe Derie Under the Daubert Standard 22 (Doc. 74, Def.’s Mot. to Exclude II) and Plaintiffs’ Responses (Doc. 80, Pls.’ Resp. I) 23 (Doc. 81, Pls.’ Resp. II). Lastly, at issue is Aramark’s Motion for Summary Judgment 24 (Doc. 75, MSJ), to which Plaintiffs filed a Response (Doc. 83, Pls.’ Resp. to MSJ) and 25 Aramark filed a Reply (Doc. 88). 26 I. BACKGROUND 27 This case involves injuries suffered by Plaintiffs Larry Meador and Annette Meador 28 (“the Meadors”) while boating on Lake Powell on the Navajo Canyon. Because Plaintiffs 1 are the non-moving party, the Court will credit their evidence underlying any disputed 2 facts. 3 On September 27, 2019, Larry Meador was operating his 29-inch Hallett 290 4 powerboat on Lake Powell in Navajo Canyon. Annette Meador was also on board along 5 with Emily and Maeson Lewis. Five other members of the Lewis family were on jet skis 6 behind the boat. Plaintiffs contend that as they approached a right-hand turn, the M/V 7 Desert Shadow (the “Desert Shadow”), owned by Aramark, came around the turn at a high 8 rate of speed and passed closely by the left side of the Meadors’ boat. (Plaintiffs’ Statement 9 of Facts (“PSOF”) ¶¶ 3-4.) Because the Meadors’ boat was to the far right of the channel, 10 the Desert Shadow had ample room to move to its right side, but instead it drove down the 11 center of the channel. (PSOF ¶¶ 13, 18, 26.) The Desert Shadow produced a wake that 12 caused the front end of the Meadors’ boat to elevate and then crash back down onto the 13 water. Upon impact, Ms. Meador suffered a thoracic fracture at T-12 and was taken by air 14 ambulance to a hospital in St. George, Utah. (PSOF ¶¶ 16-17.) 15 Aramark contends that the Desert Shadow could not have produced a wake larger 16 than three feet and that Mr. Meador’s negligent operation of his boat caused the accident. 17 (Defendant’s Statement of Facts (“DSOF”) ¶¶ 4, 8.) Plaintiffs counter that the wake was 18 larger than three feet, Captain Phil Anderson’s operation of the Desert Shadow was 19 unreasonable, and that Mr. Meador properly operated his boat. 20 Plaintiffs brought claims for negligence and punitive damages against Aramark. 21 They argue that Aramark was aware that the wakes produced by its boats caused accidents 22 and put other boaters’ safety at risk. Each side has produced multiple expert reports in this 23 litigation and has filed multiple motions to strike. While each report contains information 24 that will not be admissible at trial, none of the expert reports will be stricken in their 25 entirety. Furthermore, because there are material issues of fact as to multiple elements of 26 Plaintiffs’ negligence and punitive damages claims, Aramark’s Motion for Summary 27 Judgment will be denied in its entirety. 28 1 II. LEGAL STANDARD 2 A. Motions to Strike and Exclude 3 Rule 702 of the Federal Rules of Evidence tasks the trial court with ensuring that 4 any expert testimony provided is relevant and reliable. Daubert v. Merrell Dow Pharm., 5 Inc. (Daubert), 509 U.S. 579, 589 (1999). “Evidence is relevant if it has any tendency to 6 make a fact more or less probable than it would be without the evidence and the fact is of 7 consequence in determining the action.” Fed. R. Evid. 401. The trial court must first assess 8 whether the testimony is valid and whether the reasoning or methodology can properly be 9 applied to the facts at issue. Daubert, 509 U.S. at 592-93. Factors to consider in this 10 assessment include: whether the methodology can be tested; whether the methodology has 11 been subjected to peer review; whether the methodology has a known or potential rate of 12 error; and whether the methodology has been generally accepted within the relevant 13 professional community. Id. at 593-94. “The inquiry envisioned by Rule 702” is “a flexible 14 one.” Id. at 594. “The focus . . . must be solely on principles and methodology, not on the 15 conclusions that they generate.” Id. 16 The Daubert analysis is applicable to testimony concerning non-scientific areas of 17 specialized knowledge. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999). 18 However, the Daubert factors may not apply to testimony that depends on knowledge and 19 experience of the expert, rather than a particular methodology. U.S. v. Hankey, 203 F.3d 20 1160, 1169 (9th Cir. 2000) (citation omitted) (finding that Daubert factors do not apply to 21 police officer’s testimony based on 21 years of experience working undercover with 22 gangs). An expert qualified by experience may testify in the form of opinion if his or her 23 experiential knowledge will help the trier of fact to understand evidence or determine a fact 24 in issue, as long as the testimony is based on sufficient data, is the product of reliable 25 principles, and the expert has reliably applied the principles to the facts of the case. See Fed. 26 R. Evid. 702; Daubert, 509 U.S. at 579. 27 The advisory committee notes on the 2000 amendments to Rule 702 explain that 28 Rule 702 (as amended in response to Daubert) “is not intended to provide an excuse for an 1 automatic challenge to the testimony of every expert.” See Kumho Tire Co., 526 U.S. at 2 152. “Vigorous cross-examination, presentation of contrary evidence, and careful 3 instruction on the burden of proof are the traditional and appropriate means of attacking 4 shaky but admissible evidence.” Daubert, 509 U.S. at 595 (citation omitted). 5 B. Motion for Summary Judgment 6 Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is 7 appropriate when: (1) the movant shows that there is no genuine dispute as to any material 8 fact; and (2) after viewing the evidence most favorably to the non-moving party, the 9 movant is entitled to prevail as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 10 477 U.S. 317, 322-23 (1986); Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th 11 Cir. 1987). Under this standard, “[o]nly disputes over facts that might affect the outcome 12 of the suit under governing [substantive] law will properly preclude the entry of summary 13 judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A “genuine issue” 14 of material fact arises only “if the evidence is such that a reasonable jury could return a 15 verdict for the nonmoving party.” Id. 16 In considering a motion for summary judgment, the court must regard as true the 17 non-moving party’s evidence, if it is supported by affidavits or other evidentiary material. 18 Celotex, 477 U.S. at 324; Eisenberg, 815 F.2d at 1289. However, the non-moving party 19 may not merely rest on its pleadings; it must produce some significant probative evidence 20 tending to contradict the moving party’s allegations, thereby creating a material question 21 of fact. Anderson, 477 U.S. at 256-57 (holding that the plaintiff must present affirmative 22 evidence in order to defeat a properly supported motion for summary judgment); First Nat’l 23 Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968). 24 “A summary judgment motion cannot be defeated by relying solely on conclusory 25 allegations unsupported by factual data.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 26 1989). “Summary judgment must be entered ‘against a party who fails to make a showing 27 sufficient to establish the existence of an element essential to that party’s case, and on 28 1 which that party will bear the burden of proof at trial.’” United States v. Carter, 906 F.2d 2 1375, 1376 (9th Cir. 1990) (quoting Celotex, 477 U.S. at 322). 3 III. ANALYSIS 4 A. John R. Curry’s Expert Report and Videos 5 Mr. Curry conducted and videotaped multiple sets of reenactments of the accident 6 for Aramark using the Desert Shadow and a speedboat with the same dimensions as the 7 Hallett 290. He utilized Mr. Meador’s as well as Ms. Lewis’s testimony to determine the 8 positioning, speed, and passing distance of the boats. In one reenactment, the person 9 replicating Mr. Meador drove the boat differently in order to understand how Mr. Meador’s 10 driving potentially led to the accident. (Doc. 72-2 at 7-8.) 11 Mr. Curry’s report details the height of the wake produced by the Desert Shadow 12 during each reenactment as well as his methodology and any variables that potentially 13 affected the results. (Doc. 72-2 at 3-7.) Mr. Curry concluded: 1) the Desert Shadow 14 produced a wake of “2.5’-1.0’ high (crest to trough),” which was a substantially smaller 15 wake than that described by Mr. Meador and Ms. Lewis; and 2) wakes of this height can 16 be safely navigated when the boat is properly operated. (Doc. 72-2 at 14.) 17 Plaintiffs argue that Mr. Curry’s video reenactments and expert report should be 18 stricken in their entirety. They contend that the video reenactments are dissimilar to the 19 accident for the following reasons: 1) the Desert Shadow was empty in the reenactment 20 and thus did not account for the weight of the 81 passengers on board at the time of the 21 accident; 2) the reenactment did not use the same crew as was on board the day of the 22 accident; and 3) Mr. Curry did not allow Plaintiffs’ experts to participate in the 23 reenactment. (Pls.’ Mot. to Strike at 3.) 24 The Court finds that these issues do not warrant the exclusion of the videos or 25 Mr. Curry’s expert report. The report and reenactment are relevant and based on the 26 testimony of Plaintiffs’ witnesses. Plaintiffs fail to explain how using a different crew for 27 the reenactment would negatively affect its accuracy and do not cite any case law for the 28 proposition that experimental evidence should be excluded where one side did not seek the 1 input of the opposing party. The omission of the passengers’ weight is Plaintiffs’ strongest 2 argument for barring the evidence. However, Mr. Curry calculated and explained in the 3 report how the additional weight from passengers would have affected the size of the wake. 4 (Doc. 72-2 at 9-10.) Plaintiffs contend that Mr. Curry wrongly used 120 pounds as the 5 average weight per passenger because United States Coast Guard (“USCG”) guidelines 6 state that 185 pounds is the average weight per passenger. This as well as the other issues 7 Plaintiffs identify are areas for cross examination, not reasons to exclude the reenactment 8 and report altogether. See Daubert, 509 U.S. at 595. The Court thus finds that Mr. Curry’s 9 reenactment videos and subsequent expert report meet Rule 702’s standard and will be 10 admissible at trial. 11 B. William Dials’s Expert Report 12 Mr. Dials’s expert report concluded that Mr. Meador did not properly operate his 13 boat and discussed the veracity of Plaintiffs’ experts. He utilized deposition testimony as 14 well the U.S. Coast Guard Rules of the Road (“COLREGS”). Plaintiffs argue that 15 Mr. Dials’s expert report should be stricken because it relied on Mr. Curry’s flawed video 16 reenactments of the accident to conclude that the Desert Shadow’s wake was two and a 17 half feet. Aramark counters that Mr. Dials’s expert report neither relies on nor discusses 18 the videos and appears to assert in a footnote that Mr. Dials relied on Mr. Celano’s expert 19 report, which Plaintiffs did not challenge. (Def.’s Resp. at 2 n. 1.) However, Mr. Dials did 20 not list Mr. Celano’s expert report as a document he relied upon in his report. (Doc. 72-1 21 at 2.) If Mr. Dials ultimately testifies at trial, he must explain how he determined that the 22 wake size was two and a half feet. 23 Plaintiffs subsequently contend for the first time in their Reply that Mr. Dials 24 offered inappropriate conclusions on multiple topics. Although these issues should have 25 been raised in Plaintiffs’ initial Motion to Strike, the Court agrees with Plaintiffs that 26 portions of Mr. Dials’s report must be stricken. Mr. Dials may freely opine that Mr. Meador 27 erred by not having a lookout, or that he approached the wake improperly; however, he 28 must not volunteer an opinion on Mr. Meador’s negligence or level of fault. Where 1 Mr. Dials opines that “Larry Meador is wholly at fault for this incident,” (Doc. 72-1 2 at 7), the opinion is an improper legal conclusion, which must be excluded. Furthermore 3 Mr. Dials will not be permitted to testify regarding his inappropriate conclusions on the 4 severity of Ms. Lewis’s head injury, Captain Derie’s alleged violations of navigation rules, 5 the witnesses’ biases, and other improper, unsupported conclusions. (Doc. 72-1 at 3-4.) 6 C. John Sutton’s Expert Report 7 Mr. Sutton will testify regarding Aramark’s allegedly deficient risk management 8 system and whether it sufficiently addressed the known problem that its boats produced 9 potentially dangerous wakes. 10 Aramark argues that Mr. Sutton’s expert report should be stricken in its entirety 11 because it does not address the threshold questions of whether the Desert Shadow could 12 generate wakes that would be dangerous to recreational boaters and his methodology was 13 flawed. (Def.’s Mot. to Exclude I at 5-6.) Aramark appears to suggest that Mr. Sutton’s 14 expert report is irrelevant unless it addresses the size of the wake. The Court disagrees. As 15 Aramark acknowledges, multiple witnesses have testified that the Desert Shadow’s wake 16 was between 8 and 18 feet high. (Def.’s Mot. to Exclude I at 5.) While an expert report 17 might be helpful to determine the wake size, one is not necessary where there are 18 eyewitnesses. A jury ultimately will evaluate the witnesses’ credibility versus that of 19 Aramark’s experts. 20 Furthermore, as discussed, infra, the size of the wake is not a threshold issue. Mr. 21 Sutton’s expert testimony could assist the finder of fact with multiple other relevant aspects 22 of Plaintiffs’ negligence and punitive damages claims. Mr. Sutton is qualified to testify to 23 risk management issues. His resume indicates that he is currently a self-employed Trip 24 Pilot, where he ensures that companies comply with applicable laws, regulations, as well 25 as their onboard policies, procedures, and Safety Management System (“SMS”). (Doc. 26 73-1 at 2.) He previously held similar responsibilities with the American Queen Steamboat 27 Company. (Doc. 73-1 at 2.) 28 1 The Court also will allow Mr. Sutton to testify regarding: 1) Aramark’s Rules of the 2 Road Violations; 2) state boating laws regarding “no wake zones;” 3) Mr. Meador’s 3 operation of the boat; 4) the use of a Safety Management System (SMS); 5) Passenger 4 Vehicle Association (“PVA”) & Flagship SMS; and 6) Marine casualty reporting. Aramark 5 argues that Mr. Sutton is not qualified to offer opinions on the PVA because he is not a 6 member. The Court disagrees. Mr. Sutton’s extensive resume provides the Court sufficient 7 assurance that he is qualified to testify as to Aramark’s use of the PVA SMS and whether 8 compliance with the SMS would have decreased the likelihood of the accident. 9 However, Mr. Sutton will not be permitted to testify regarding issues on which he 10 is either unqualified or that are inappropriate for expert testimony. Mr. Sutton is thus not 11 permitted to offer legal conclusions. His statement that “Aramark has made a [conscious] 12 choice to ignore its grossly negligent operations in the numerous wake collision related 13 incidents” is inappropriate (Doc. 73-2 at 13.) He also may not testify to conclusions that 14 appear to be pure conjecture, such as “Aramark continues its dangerous operation on Lake 15 Powell for business reasons based solely on profit.” (Doc. 73-2 at 13.) 16 Finally, the Court declines to reach a decision on whether Mr. Sutton may testify 17 to the alleged 28 previous incidents where the wake from an Aramark boat caused injuries 18 or the Carey and Gilmore litigations. Aramark argues that this evidence should be excluded 19 because it is prejudicial, will likely confuse the jury, and in many if not all of the incidents 20 or litigations, Aramark was not at fault. (Def.’s Mot. to Exclude I at 6-8.) The Court agrees 21 that there is danger in admitting this evidence. However, it is also relevant to Mr. Sutton’s 22 assessment that Aramark did not have proper risk management protocols in place despite 23 being aware of the dangers posed by the boats’ wakes. (Doc. 73-2 at 10-11, 14-15.) This 24 evidence is also relevant to Plaintiffs’ negligence claim and punitive damages claim, as it 25 illustrates that Aramark was on notice of the potential safety hazard. 26 Therefore, Aramark shall file a motion in limine addressing whether Mr. Sutton may 27 testify regarding Aramark’s knowledge of these incidents as well as the prior litigations 28 1 under Rules 403 and 702. 1 These motions may also address whether this evidence should 2 be admissible, separate from Mr. Sutton, at trial under Rule 403. Whereas Aramark’s 3 current Motion to Exclude discusses the admissibility of the incidents as a whole, 4 Aramark’s motion in limine should specify what makes each individual incident and 5 litigation inadmissible. (Mot. to Exclude I at 7.) Lastly, Plaintiffs’ knowledge of many of 6 these incidents stems from internal Aramark emails produced in discovery. However, 7 others, such as the June 11, 2019 incident involving Joleen Cole, are not sourced. 8 (Doc. 73-2 at 9.) Plaintiffs must provide sources for all of the incidents or they will be 9 inadmissible. 10 D. Joe Derie’s Expert Report 11 Aramark contends that Mr. Derie’s expert report should be stricken for the same 12 reasons. While the Court agrees that portions of the report are inadmissible, there are others 13 that are relevant and admissible. Mr. Derie will be permitted to testify regarding Sections 14 1 through 7 of his report, which discuss both Captain Anderson’s and Mr. Meador’s 15 operation of their respective vessels leading up to and during the accident. (Doc. 74-2 16 at 1-3.) Aramark argues that Mr. Derie’s report simply relies on deposition testimony from 17 Plaintiffs’ witnesses and does not contain independent analysis or scientific methodology 18 to determine the cause of the accident. Even if true, this is not disqualifying. Mr. Derie is 19 not a scientific expert; rather, his testimony is based on knowledge and experience. See 20 Hankey, 203 F.3d at 1169. Furthermore, while Mr. Derie’s reliance on testimony from 21 Plaintiffs’ witnesses may indicate bias, striking the entire report is unnecessary. Cross 22 examination is the preferred tool to test the bases for Mr. Derie’s opinions as well as his 23 credibility. See Daubert, 509 U.S. at 595. 24 However, there are portions of Mr. Derie’s report that are inadmissible. Mr. Derie 25 may not offer legal conclusions at trial. Section 10.1, stating that the Desert Shadow failed 26 1 Mr. Sutton will be permitted to testify regarding Aramark’s risk management practices 27 regardless of the Court’s decision on the motion in limine. There are multiple admissible internal Aramark emails that discuss the risks posed by its boats’ wakes, unrelated to any 28 specific incident. (PSOF ¶ 30, Ex. I at 24; ¶ 88, Ex. M at 57:14-58:1; ¶ 89, Ex. M at 60:7- 61:3; Doc. 73-2 at 8, 14-15.) 1 “to use reasonable care under the circumstances at the time of the accident to avoid injuries 2 from the vessel’s wake (negligence),” is wholly inappropriate and inadmissible. (Doc. 74-2 3 at 5.) Section 10.3 references the negligence discussed in 10.1 and is thus inadmissible as 4 well. (Doc. 74-2 at 5.) While Mr. Derie may opine that the Desert Shadow’s failure to abide 5 by certain regulations and laws was a “substantial factor” causing injuries to Ms. Meador, 6 he may not refer to its actions as negligence. 7 Furthermore, Mr. Derie may not rely upon the alleged 28 previous incidents or the 8 Carey and Gilmore litigations. (Doc. 74-2 at 4.) He also may not testify to his personal 9 experience with the wake generated from an Aramark boat. (Doc. 74-2 at 4.) Unlike 10 Mr. Sutton, who references the previous 28 incidents as well as the litigations in his report 11 to illustrate Aramark’s alleged risk management failings, Mr. Derie appears to only 12 reference the past incidents and litigations as evidence that Aramark acted negligently in 13 this instance. This evidence is overwhelmingly likely to lead to the Court’s aforementioned 14 concerns about confusing the jury with irrelevant and prejudicial evidence and is thus 15 inadmissible under Rules 403, 702, as well as 404(b). 16 E. Motion for Summary Judgment on Negligence 17 Aramark contends that summary judgment is warranted because the undisputed 18 facts show that the operation of the Desert Shadow was reasonable. Aramark cites 19 Mr. Celano’s and Mr. Curry’s expert reports that conclude that the Desert Shadow could 20 at most produce a 3-foot wake and the fact that Plaintiffs’ experts did not rebut these 21 findings. (MSJ at 3.) However, Ms. Lewis testified that the wake was approximately 15 22 feet and Ms. Meador described the wake as “a huge wall.”2 (PSOF ¶ 7, Ex. C at 43:2-16; 23 PSOF ¶ 11, Ex. A at 145:25-146:16.) Aramark contends that this testimony is insufficient 24 to create a material factual dispute because the witnesses are “untrained, biased laymen.” 25 (MSJ at 10.) The Court disagrees. As discussed, supra, expert testimony on the wake’s size 26 2 Plaintiffs do not cite to Mr. Meador’s testimony regarding the height of the wake even 27 though Aramark cites to it in its Motion for Summary Judgment. (MSJ at 3.) It is unclear if this omission was intentional. Regardless, there is sufficient controverting evidence as 28 to the wake’s height as well as Aramark’s reasonable operation of the Desert Shadow to preclude summary judgment. 1 is appropriate but not necessary. Ms. Lewis and Ms. Meador witnessed the Desert 2 Shadow’s wake. There is no requirement that they be experts to testify as to what they saw. 3 Aramark may of course cross examine them on their potential biases and credibility issues. 4 But at the summary judgment stage, where the witnesses have testified under oath and 5 appear to otherwise be credible, the Court will credit their testimony. 6 Even if it was undisputed that the Desert Shadow created a wake that was three feet 7 or less, summary judgment still would be unwarranted. Aramark does not provide case law 8 or any other support for its contention that a wake of three feet or less will always preclude 9 a negligence claim. And Plaintiffs proffered additional evidence, through both lay and 10 expert witnesses, that Aramark did not operate the Desert Shadow reasonably.3 Multiple 11 witnesses testified that the Desert Shadow turned at a high rate of speed and was operating 12 on the wrong side of the channel. Mr. O’Brien was aboard the Desert Shadow and testified 13 that the it was “smack dab in the middle of the channel,” approximately 40 feet from the 14 wall on the left side and 20 feet from the Meadors’ boat. (PSOF ¶¶ 25-26, Ex. H at 17:9-14.) 15 Plaintiffs also produced evidence that their boat was properly along the right side of the 16 canyon. (PSOF ¶ 18, Ex. D at 24:11-21). Both of Plaintiffs’ experts will testify that 17 Aramark violated various boating laws and regulations in its operation of the Desert 18 Shadow on the day of the accident. Mr. Sutton also will testify that Aramark was aware 19 that its boats’ wakes could lead to accidents but declined to adopt proper risk management 20 protocols. This evidence creates genuine disputes as to the material facts underlying 21 Plaintiffs’ negligence claim. Therefore, the Court will deny Aramark’s Motion for 22 Summary Judgment. 23 F. Motion for Summary Judgment on Punitive Damages 24 The Court also will deny Aramark’s Motion for Summary Judgment on punitive 25 damages. Summary judgment on the question of punitive damages is inappropriate if “a 26 reasonable jury could find the requisite evil mind by clear and convincing

27 3 Notably, Aramark expressly states that the outcome of its Motion for Summary Judgment is dependent on this Court excluding Plaintiffs’ expert testimony (MSJ at 2.), which the 28 Court declined to do. 1 evidence.” Thompson v. Better–Bilt Aluminum Prods. Co., 832 P.2d 203, 211 (Ariz. 1992). 2 In determining whether a defendant exhibited an “evil mind,” courts consider “the nature 3 of the defendant’s conduct, including the reprehensibility of the conduct and the severity 4 of the harm likely to result, as well as the harm that has occurred [in addition to] [t]he 5 duration of the misconduct, the degree of defendant’s awareness of the harm or risk of 6 harm, and any concealment of it.” Id. at 556. The primary question where punitive damages 7 are concerned is motive, because gross negligence and reckless disregard are not 8 enough. Volz v. Coleman Co., Inc., 748 P.2d 1191, 1194 (Ariz. 1987). Because defendants 9 rarely admit to an “evil mind,” improper motive is often inferred from sufficiently 10 oppressive, outrageous, or intolerable conduct as well as defendant’s conscious and 11 deliberate disregard of the interest and rights of others. Id. 12 There are multiple issues of fact yet to be resolved that preclude summary judgment. 13 Plaintiffs contend that Aramark knew that the wake generated from its boats posed a 14 substantial risk to other boats but did not take sufficient steps to mitigate the risk. As 15 discussed, supra, some of the evidence relevant to that claim may not be admissible at trial. 16 However, the Court already has determined that there are internal Aramark emails 17 discussing the wakes’ risk that are admissible. (PSOF ¶ 30, Ex. I at 24; ¶ 88, Ex. M at 18 57:14-58:1; ¶ 89, Ex. M at 60:7-61:3; Doc. 73-2 at 8, 14-15.) These emails are sufficient 19 evidence of Aramark’s knowledge as to the potential dangers posed by their boats’ wakes 20 to create an issue of fact regarding Plaintiffs’ punitive damages claim. If a jury finds that 21 Aramark was aware of these risks but declined to implement any mitigation measures, it 22 could find that Aramark showed a conscious and deliberate disregard for other boaters. Id. 23 Aramark’s Motion for Summary Judgment is accordingly denied. 24 IT IS THEREFORE ORDERED granting in part and denying in part Plaintiffs’ 25 Motion to Strike Expert Reports, Testimony and Video Reenactments (Doc. 72), as set 26 forth above; 27 IT IS FURTHER ORDERED granting in part and denying in part Defendant’s 28 Motion to Exclude Expert Testimony of John Sutton (Doc. 73), as set forth above; 1 IT IS FURTHER ORDERED granting in part and denying in part Defendant’s 2|| Motion and Points and Authorities to Exclude Expert Testimony of Joe Derie (Doc. 74), 3 || as set forth above; 4 IT IS FURTHER ORDERED denying Defendant’s Motion for Summary 5 || Judgment Re: Negligence (Doc. 75); 6 IT IS FURTHER ORDERED denying Defendant’s Motion for Summary 7\| Judgment Re: Punitive Damages (Doc. 75); 8 IT IS FURTHER ORDERED that Defendant shall file, not later than three weeks 9|| before the final Pre-Trial Conference in this matter, Motions in Limine regarding the 10 || exclusion of the alleged 28 prior incidents and prior Aramark litigations, as set forth above. 11 IT IS FURTHER ORDERED that Plaintiffs shall provide sources for all 28 of the alleged prior incidents within 21 days of this Order, as set forth above. 13 IT IS FURTHER ORDERED that Plaintiffs’ claims will proceed to trial, and the Court will set a pre-trial status conference by separate Order. 15 Dated this 23rd day of April, 2021. CN 16 “wok: 17 Unifga State#District Judge 18 19 20 21 22 23 24 25 26 27 28

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