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Leavy v. Parsell3/6/1997
En Banc
FELDMAN, Justice
Andrew Leavy sought review of a court of appeals' decision affirming the trial court's order denying his motions for new trial. See Leavy v. Parsell, No. 1 CA-CV 95-0234, filed March 12, 1996 (Memorandum Decision). We granted review to determine whether the trial Judge abused her discretion in failing to grant Leavy's motions for new trial on grounds that defense counsel engaged in deliberate, serious misconduct. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3), Ariz. R. Civ. App. P. 23, and A.R.S. § 12-120.24.
FACTS AND PROCEDURAL HISTORY
On May 23, 1992, Plaintiff Andrew Leavy ("Leavy") and Defendant Gary Parsell ("Parsell") were involved in an automobile collision at the intersection of 90th Street and Cactus Road in Scottsdale. At the time of the accident, Parsell was driving a company vehicle and was performing his duties as an employee of Defendant Schendel Pest Control of Arizona. Leavy brought a personal injury action against Parsell and Schendel, seeking damages based on negligence and respondeat superior theories.
Prior to trial, Leavy filed motions in limine seeking among other things to preclude Parsell from raising the seat belt defense and from introducing opinion testimony by Parsell's expert, Michael Broughton, regarding the credibility of certain accident witnesses, especially Denise Ott-McLarty, on whose observations Broughton relied in reaching his Conclusions. The Judge granted these motions, stating:
IT IS ORDERED Mr. Broughton cannot testify regarding the credibility of witnesses, but he can indicate which witnesses' statements and testimony he relied on as the facts upon which his opinion is based.
* * *
IT IS ORDERED precluding the defendants from "raising" the seatbelt defense.
Leavy admitted prior to trial that a bottle of whiskey found near the accident site was his, but there was no evidence that Leavy used any alcohol prior to the accident or was impaired to any extent. We cannot tell from the record before us whether the Judge ordered that the issue of alcohol use not be raised or whether counsel agreed not to raise it, but it is clear it was not an issue to be tried.
During his opening statement, defense counsel twice violated the Judge's orders by telling the jury that: (1) the emergency room records stated Leavy was "a probable unrestrained driver," and (2) Ott-McLarty was described by an accident reconstruction expert as one of the best witnesses he had ever seen in sixteen years. Later the same day, during cross-examination of another witness, counsel asked if Leavy was wearing a seat belt when found in the vehicle immediately after the accident. Leavy's counsel timely objected to the three improper comments and the objections were sustained. Believing the "bell had been rung" and not wishing to emphasize the matter, Leavy's counsel did not request the Judge to instruct the jury to disregard defense counsel's statements. Instead, at the start of the second day of trial, Leavy moved for a mistrial based on defense counsel's violation of the Judge's orders. The Judge denied the motion because she could not recall the comments made during opening statement.
The parties presented conflicting evidence about how the accident occurred. Oddly, both drivers had been driving nearly identical, white, foreign-made, pickup trucks. According to Leavy, he was traveling westbound on Cactus Road, and Parsell was driving southbound on 90th Street and ran the stop sign, causing the accident. Parsell had retrograde amnesia, but the version from the defense eyewitnesses, especially Ott-McLarty, was that Parsell
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