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