Randall v. Maricopa Cnty.
| Decision Date | 08 March 2016 |
| Docket Number | No. 1 CA-CV 14-0431,1 CA-CV 14-0431 |
| Parties | LISA RANDALL, individually; BRENNA RANDALL, individually; TRACY ALLEN, individually, Plaintiffs/Appellees/Cross-Appellants, v. MARICOPA COUNTY; KEVIN D. HORN, Defendants/Appellants/Cross-Appellees. |
| Court | Arizona Court of Appeals |
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Maricopa County
The Honorable Robert H. Oberbillig, Judge
AFFIRMED
Lori L. Voepel, Eileen D. GilBride
Aiken Schenk Hawkins & Ricciardi, P.C., Phoenix
By Richard M. Gerry
Plattner Verderame, P.C., Phoenix
By Richard Plattner
Counsel for Plaintiff/Appellee/Cross-Appellant Tracy Allen
MEMORANDUM DECISIONJudge Maurice Portley delivered the decision of the Court, in which Presiding Judge Jon W. Thompson and Judge Patricia K. Norris joined.
¶1 Maricopa County and Dr. Kevin D. Horn (collectively "Defendants") appeal the ruling granting a new trial to Lisa Randall ("Randall"), Brenna Randall, and Tracy Allen1 (collectively "Plaintiffs"). Plaintiffs also challenge, by cross-appeal, the ruling granting Defendants partial summary judgment on the issue of Dr. Horn's qualified immunity. For the following reasons we affirm the superior court's rulings.
¶2 A four-and-a-half month-old infant was found unresponsive in Randall's in-home daycare in April 2007, and passed away the next day. Dr. Horn, the Maricopa County medical examiner, conducted an autopsy and determined the infant's death was a homicide, caused by blunt force trauma of the head and neck. Randall was indicted for the infant's murder, but the case was remanded back to the grand jury. The charges were dismissed, then refiled by direct complaint, and, at the preliminary hearing, the court found probable cause to proceed to trial.
¶3 The State became concerned, however, after receiving a report from another of its experts that was inconsistent with the Horn report. Internally, the case was submitted to the County Attorney Office's Incident Review Committee, which determined it should not be pursued, and the State subsequently dismissed the criminal charges with prejudice.
¶4 After filing a notice of claim, Randall filed this civil action against multiple parties,2 including Defendants. The case proceeded to trial against Defendants,3 and the jury returned a defense verdict. Plaintiffs filed motions for mistrial, sanctions, and a new trial. After the oral argument, the court granted the motion for new trial. Defendants moved for reconsideration and filed a notice of appeal. We stayed the appeal to allow the superior court to resolve the pending motion and after the motion was denied, the appeal was reinstated, including Plaintiffs' challenge to the ruling granting Dr. Horn common-law qualified immunity. We have jurisdiction over the appeal and cross-appeal under Article 6, Section 9 of the Arizona Constitution, and Arizona Revised Statutes ("A.R.S.") section 12-2101(A)(1), (5)(a).4
¶5 Defendants argue the superior court abused its discretion by granting a new trial. Specifically, they argue the court applied an incorrect legal standard in granting the new trial because the court improperly presumed prejudice under Leavy v. Parsell, 188 Ariz. 69, 932 P.2d 1340 (1997), given that the case was not close, no motion for mistrial was filed, and the court never found that any trial misconduct was serious, knowing, and deliberate, and disregarded its curative instruction to the jury. They also argue the court abused its discretion by granting the motion for new trial based "solely" on "one question to Dr. Posey" even though the court struck the question and instructed the jury to disregard it.
¶6 We review a grant of a new trial for an abuse of discretion. McBride v. Kieckhefer Assocs., Inc., 228 Ariz. 262, 266, ¶ 16, 265 P.3d 1061, 1065 (App. 2011). If the court gives multiple reasons for its decision, we will uphold the ruling if justified on any of the grounds. Johnson v. Elliott, 112 Ariz. 57, 61, 537 P.2d 927, 931 (1975) (citation omitted); see Crowe v. Miller, 27 Ariz. App. 453, 455, 555 P.2d 1141, 1143 (1976) (citations omitted). We,however, review the court's interpretation of a rule of procedure de novo because it is a matter of law. See Felipe v. Theme Tech. Corp., 235 Ariz. 520, 524, ¶ 10, 334 P.3d 210, 214 (App. 2014).
¶7 A superior court may vacate a verdict and order a new trial under Arizona Rule of Civil Procedure 59(a). The court must find that a party's rights are materially affected by one of many causes, including or Ariz. R. Civ. P. 59(a)(1), (2). However, the court should only grant a new trial when it believes "that there has been some error in the conduct of the original trial which, in all probability, has affected the verdict." S. Ariz. Freight Lines v. Jackson, 48 Ariz. 509, 512, 63 P.2d 193, 195 (1936).
¶8 Our supreme court has stated that the grant of a "new trial on the grounds of misconduct of counsel is a matter within the trial court's discretion" but it is "only to prevent a miscarriage of justice . . . or . . . for a cause materially affecting [the] rights . . . of the aggrieved party." Grant v. Ariz. Pub. Serv. Co., 133 Ariz. 434, 451, 652 P.2d 507, 524 (1982) (citing Zugsmith v. Mullins, 86 Ariz. 236, 238, 344 P.2d 739, 740 (1959) (internal quotation marks and citations omitted). In Leavy, the court revisited its analysis and stated "misconduct alone will not warrant a new trial and that the grant . . . of a new trial based on misconduct is within the judge's discretion." 188 Ariz. at 73, 932 P.2d at 1344 (citing Grant, 133 Ariz. at 454, 652 P.2d at 527). However, after noting "it is impossible for a party to carry the burden of proving prejudice when the misconduct or error prevents the court from determining the exact extent of prejudice," the court stated "the trial [court] should find prejudice," when:
(1) the misconduct is significant, especially if the record establishes knowing, deliberate violations of rules or court orders that a litigant may confidently expect to be observed by his or her adversary; (2) the misconduct is prejudicial in nature because it involves essential and important issues, but the extent is impossible to determine in a close case; and (3) the misconduct is apparently successful in achieving its goals.
Id. The court also noted that when the factors are present "prejudice should be inferred, absent an affirmative showing to the contrary by the guilty party." Id. Consequently, because the trial judge sits as the "ninth juror" in a civil case, Hutcherson v. City of Phoenix, 192 Ariz. 51, 55, ¶ 23, 961 P.2d449, 453 (1998), we defer to the court's ruling, recognizing that the "judge sees the witnesses, hears the testimony, and has a special perspective of the relationship between the evidence and the verdict which cannot be recreated by a reviewing court from the printed record." Id. at 53, ¶ 12, 961 P.2d at 451 (citation omitted).
¶9 Moreover, and contrary to Defendants' argument that Plaintiffs' failure to seek a mistrial questions whether they thought "the alleged misconduct [w]as prejudicial enough to warrant a new trial," a motion for mistrial is not a prerequisite to requesting a new trial. See Miller v. Palmer, 143 Ariz. 84, 86, 691 P.2d 1112, 1114 (App. 1984) (). Similarly, a court does not have to sua sponte grant a mistrial for misconduct, and the court's failure to do so gets no greater weight than its ultimate conclusion that a new trial is warranted because of prejudicial misconduct. See Liberatore v. Thompson, 157 Ariz. 612, 621, 760 P.2d 612, 621 (App. 1988) ().
¶10 Here, after an extensive argument about the facts and law, the superior court summarized Leavy as follows: (1) the misconduct has to be significant, such as violations of rules or "court orders, that a litigant may confidently expect to be observed by his or her adversary;" (2) the misconduct is prejudicial "because it involves essential and important issues that the extent is impossible to determine in a close case;" and (3) "the misconduct is apparently successful in achieving its goals." Then, after noting the case was "very difficult . . . with really all issues hotly contested," the court found "it's a close case" with "multiple violations of court rule or court order."
¶11 The court then found three acts of misconduct warranting a new trial. First, the court found that Defendants violated the discovery rule/disclosure rule by failing to disclose that there were two linear fractures to the deceased infants' skull, which Defendants' expert had made clear to them on the eve of trial, and then using the information in the opening statement without notifying Plaintiffs. Second, despite the court's ruling that the probable cause finding could not be discussed, counsel asked Dr. Posey a question about the criminal judge's opinion, and the court found it "was a direct violation of the '[c]ourt's Motion in Limine ruling'"and violated both the spirit and intent of the ruling. Finally, the court found that Defendants' questioning of the treating physicians "was done in a way that elicited objections that were sustained . . . all creating an...
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