Phoenix, Ariz. (September 17, 2025) - On September 12, 2025, after a two-week trial, the Phoenix trial team of Partner Matt Kleifield, Associate Bryce Anderson, and Paralegal Esther Fairley received a unanimous defense verdict in a contentious case involving a motor vehicle accident from which the plaintiff claimed a TBI with chronic and permanent symptoms/deficits nearly five years later.
In November 2020, the plaintiff was a 48-year-old dental hygienist operating her Subaru southbound on State Route 89A, a winding two lane state highway through picturesque Oak Creek Canyon near Sedona, Arizona, while visiting the area for a long weekend from Tucson with her friend. On the last day of their vacation, the two decided to visit the Sedona Trout Farm, a place where they had never previously visited. They knew the general location, but they were concerned about missing their turn while not using any GPS navigation. The defendant, a long-time resident of the Sedona area, was headed south in his Chevy Taho from his home to the farmers’ market when he came across a slow-moving Jeep which was operated by a nonparty tourist.
The defendant paced the Jeep for a short time, traveling 10-15 mph in a posted 40-mph zone. Because it was a legal passing zone on the two-lane highway, the defendant ensured northbound traffic was clear and then switched lanes to pass the Jeep, accelerating to 30-35 mph. As he was passing the Jeep, the plaintiff’s white Subaru turned near perpendicular in front of him from somewhere ahead of the Jeep. The defendant slammed on his brakes and veered left toward the ravine, hoping to avoid a collision with the Subaru. However, he was unable to avoid the collision, essentially T-boning the Subaru on the driver’s door where the plaintiff was seated. Prior to the Subaru pulling in front of him, the defendant did not see the Subaru as it was obstructed by the Jeep. Given his experience driving 89A, he found it common for tourists like the Jeep driver to drive slowly as they took in the views. The Jeep was not using its hazard lights or turn signals. Thus, with northbound lanes clear, he felt it was safe to pass the Jeep. Unbeknownst to him, the plaintiff was attempting to turn left across the northbound lane into the southern Trout Farm entrance, which the plaintiff’s accident reconstructionist admitted was a 160-degree to 170-degree turn. The defendant explained that it was “foolish” and “ill-advised” for southbound traffic to attempt to use that entrance, which was actually intended for northbound traffic. Instead, his experience was that southbound traffic would use the northern entrance, which only required a 30-degree merge off the roadway.
The plaintiff’s attorneys argued that the defendant’s 11,000 or more trips up and down 89A should have told him that the plaintiff’s Subaru or some other hazard could be ahead of the slow-moving Jeep and that a driver could decide to turn into the southern entrance to the Trout Farm. They further argued, without any expert analysis or other proof, that the defendant could or should have seen the Subaru ahead of the Jeep, even suggesting that the defendant could have looked through the Jeep’s rear window and through the Jeep to see the Subaru. The Lewis Brisbois team argued that there was no reason for the defendant to assume there was another vehicle ahead of the Subaru and pointed out there were too many variables with the Jeep, such as its lateral location in the lane, its window tint levels, and whether there was anything inside the Jeep to obstruct his ability to see through it, to know whether it was even possible for the defendant to see the Subaru through the Jeep’s windows. They further pointed out that the only way for the plaintiff to execute the turn and end up at the point of impact was if the plaintiff swung out to the right before making what is best described as a U-turn, thereby further obscuring the Subaru.
Using the plaintiff’s attorney’s own admission in opening statement that such maneuver would be unreasonable, the Lewis Brisbois team argued that it was the plaintiff who was negligent in causing the accident, especially given the plaintiff’s admission that she knew traffic could be passing her and her further admission that she never once saw the defendant’s vehicle until after the impact. The Lewis Brisbois team theorized that the plaintiff, unfamiliar with the area, missed the northern, easier entrance to the Trout Farm and then compounded that mistake by stopping in the roadway, swinging out right, and attempting a turn that was dangerous and difficult without keeping proper attention on traffic.
From the accident, the plaintiff claimed a permanent TBI with persistent post-concussion syndrome and chronic pain. While the plaintiff’s medical expert, a retained neurosurgeon, testified that many patients with mild TBI recover within 3-6 months, the plaintiff claimed ongoing deficits five years later, including chronic occipital headaches, dizziness, balance issues, lack of concentration, brain fog, and working memory issues. To support the TBI claim, the plaintiff presented testimony from her neuropsychologist who performed various written and verbal tests, along with a QEEG showing deficits and “disconnectedness” he claimed were consistent with TBI. The neuropsychologist admitted that the testing showed average to above average performance and that he could not rule out the possibility that the results were present before the accident, given he had no pre-accident baseline testing. Both the neuropsychologist and neurosurgeon acknowledged that chronic pain can disrupt the brain’s functioning and explain the plaintiff’s symptoms and results. Thus, the Lewis Brisbois team highlighted through pre-accident records that the plaintiff reported a 30-year history of chronic low back pain that was unresponsive to surgeries and which still reached pain level of 10 out of 10, along with various other chronic pain issues which began increasing around 2016. Notably, the plaintiff reported the exact same headaches just 1 ½ years before the accident, explaining to a healthcare provider that these severe occipital headaches were present ever since a prior accident in her 20s. The plaintiff claimed this medical record was wrong and asked her experts to do the same, which they did.
In closing, the plaintiff’s attorney argued that the defendant was solely at fault and that the plaintiff should be awarded $5.2 million based upon her chronic pain and brain dysfunction, and associated cognitive and functional limitations which would remain for the rest of her 30.1-year life expectancy. Before trial, the plaintiff’s lowest demand was $560,000, which she served as a Rule 68 Offer of Judgment. The defendant served an Offer of Judgment for $85,000.
After an hour of deliberation, the jury returned a unanimous defense verdict. Due to the rules related to the defendant’s Offer of Judgment, the plaintiff will owe $17,000 in sanctions for failing to accept the offer and failing to obtain a final judgment more than the offer. The plaintiff will also owe the defendant’s taxable costs.