Jimenez v. Wal-Mart Stores11/20/2003
In this personal injury action, plaintiffs/appellants Margaret Jimenez and her husband appeal from the trial court's judgment, entered after a jury verdict, in favor of defendant/appellee Wal-Mart Stores, Inc. She also appeals from the trial court's subsequent denial of her motion for a new trial. Jimenez argues the trial court abused its discretion by allowing Wal-Mart to rely on a new, undisclosed legal theory at trial and by precluding certain photographic evidence. Jimenez also argues the pro tempore trial judge was prejudiced against her because, immediately after this case ended, the judge appeared as an attorney in another action in which Jimenez's attorney was a party. Finding no error in the trial court's rulings and no conflict of interest, we affirm the judgment.
BACKGROUND
We view the facts in the light most favorable to upholding the jury's verdict.
Larsen v. Nissan Motor Corp., 194 Ariz. 142, , 978 P.2d 119, (App. 1998). Jimenez injured her wrist and knee when she fell outside the garden center entrance to a Wal-Mart store in early 1994. She had approached the store in a marked crosswalk, which had a handicapped access ramp where it met the curb and sidewalk. Jimenez fell when she reached the sidewalk, which had some potting soil spilled on it.
Jimenez and her husband sued Wal-Mart, alleging it had negligently maintained the entrance. After a trial in 1997, a jury found in favor of Jimenez and awarded her damages totaling $200,000, but found her thirty percent at fault. On appeal, this court vacated that award and remanded the case for a new trial, finding Jimenez had presented prejudicial, undisclosed evidence and a new legal theory at trial. Jimenez v. Wal-Mart Stores, Inc., No. 2 CA-CV 98-0011 (memorandum decision filed Aug. 20, 1998). The second trial ended in a mistrial. The third trial resulted in a jury verdict in favor of Wal-Mart. Following that verdict, Jimenez moved for a new trial, arguing Wal-Mart had effectively turned the tables by relying on an undisclosed legal theory at trial to secure the defense verdict. The trial court denied that motion, and this appeal followed.
DISCUSSION
I. New Legal Theory
Jimenez first contends the trial court erred by allowing Wal-Mart's expert witness, Dean Jacobson, to unexpectedly testify about his interpretation of certain crosswalk standards. She argues that testimony amounted to a new, "surprise" legal theory or affirmative defense that had not been disclosed as required by Rule 26.1, Ariz. R. Civ. P., 16 A.R.S., Pt. 1. Under that rule, parties have a continuing duty to disclose " he legal theory upon which each claim... is based," Rule 26.1(a)(2), and "the subject matter on which expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, a summary of the grounds for each opinion." Ariz. R. Civ. P. 26.1(a)(6).
Adequate disclosure "should fairly expose the facts and issues to be litigated, as well as the witnesses and exhibits to be relied upon." Bryan v. Riddel, 178 Ariz. 472, 477, 875 P.2d 131, 136 (1994). But, a party need only disclose the "substance" of the witness's expected testimony, not the details. See Ariz. R. Civ. P. 26.1(a)(3); Englert v. Carondelet Health Network, 199 Ariz. 21, , 13 P.3d 763, (App. 2000). We review a ruling denying a sanction for violation of Rule 26.1 for an abuse of discretion. Allstate Ins. Co. v. O'Toole, 182 Ariz. 284, 287, 896 P.2d 254, 257 (1995). Similarly, we will not disturb a trial court's ruling on a motion for new trial absent an abuse of discretion. Englert, 199 Ariz. 21, , 13 P.3d 763, .
Jacobson, a
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