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Otzenberger v. Park-Hwang5/10/2005
anted a new trial based on a second ground that substantial justice was not done under CR 59(a)(1) and (9) because the trial court had not permitted Otzenberger to perpetuate by deposition the testimony of the proposed rebuttal witnesses. The trial court noted that either ground supported a new trial. On June 16, Park-Hwang moved for reconsideration of the order granting a new trial, but the trial court denied the motion on July 3, 2003.
Park-Hwang appeals the order granting Otzenberger a new trial.
ANALYSIS
Standard of Review
A court may grant a motion for a new trial when important rights of the moving party are materially affected because substantial justice has not been done. CR 59(a). When the trial court's basis for granting a motion for a new trial is based on questions of fact, we will not disturb the ruling absent a manifest abuse of discretion. Aluminum Co. of Am. v. Aetna Cas. & Sur. Co., 140 Wn.2d 517, 537, 998 P.2d 856 (2000). But when such an order is predicated on legal rulings, no element of discretion is involved. Schneider v. City of Seattle, 24 Wn. App. 251, 255, 600 P.2d 666 (1979) (citing Detrick v. Garretson Packing Co., 73 Wn.2d 804, 812, 440 P.2d 834 (1968); Lyster v. Metzger, 68 Wn.2d 216, 226, 412 P.2d 340 (1966)), review denied, 93 Wn.2d 1010 (1980). Thus, we review legal rulings for error only, not for abuse of discretion. See Schneider, 24 Wn. App. at 256 (quoting Braden v. Rees, 5 Wn. App. 106, 110, 485 P.2d 995 (1971)).
'Golden Rule' Argument
Park-Hwang contends that the trial court erred in granting a new trial based on the defense's 'golden rule' comment in its closing argument. They argue that the comment did not violate the order in limine and that, even if it did, granting a new trial was inappropriate because Otzenberger did not object.
Otzenberger did not object to the comment at the time, but in her motion for new trial, filed 52 days after the jury's verdict, she asserted that the argument was so flagrant and prejudicial that no objection was necessary. The trial court agreed, stating in its oral ruling:
It was clear to me at the time that defense counsel . . . violated my order in limine not to argue to the jury the 'golden rule'. . . . And in fact, that was at the request of {the defense} that I initially gave that order and made it mutual. It was clear to me at the time when I heard her argue . . . that this was a precancerous condition, ask yourselves would that have been good enough for you or your spouse? It is a flagrant violation of the 'golden rule' and extremely prejudicial. No objection was necessary at the time. I do not believe that you can unring something like that by a curative instruction without simply calling more attention to it. This does constitute misconduct by the prevailing party and results in a lack of substantial justice being done.
12 RP at 1926-27.
Threshold Question
As a threshold matter, Park-Hwang argues that the trial court erred in granting a new trial because the argument was not a golden rule argument at all, since it did not ask the jurors to put themselves in the shoes of either party and was merely a request that jurors focus on the evidence.
The biblical 'golden rule' states a standard of conduct for individuals: do unto others as you would have them do unto you. Adkins v. Aluminum Co. of Am., 110 Wn.2d 128, 139, 750 P.2d 1257, 756 P.2d 142 (1988) (citing Luke 6:31). Generally, reference by counsel to the 'golden rule' per se, or allusions to the rule, such as 'urging the jurors to place themselves in the position of one of the parties to the litigation, or to grant a pa
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