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Otzenberger v. Park-Hwang5/10/2005
that the jury could be guided by officers' conduct in not issuing traffic citations) were such flagrant misconduct that no instruction could have cured their prejudicial effect; therefore the plaintiff did not waive the right to assert the error in a motion for a new trial.
Here, the trial court's ruling fails to explain how defense counsel's argument was so prejudicial that no instruction could have cured it, and our review of the record does not support such a determination. At the eight-day trial, the jury heard evidence supporting both sides from a multitude of fact and expert witnesses. The challenged comment occurred several minutes into closing argument and was not repeated during the numerous minutes that followed. Even if defense counsel's comments violated the letter of the motion in limine, they primarily attacked the defense's expert witnesses' statements regarding the appropriate actions of a reasonable prudent doctor and were not an inflammatory appeal to jurors to place themselves in the position of either the plaintiff or defendant for purposes of assessing a damage award.
Otzenberger argues that the trial court's motion in limine obviated the need to object to the argument. For its part, the trial court found that there was no need to object because objection would have prejudicially emphasized the prohibited matter and a curative instruction would have been ineffective. Neither rationale is persuasive. An order in limine does not excuse the complaining party from its obligation to make a proper objection at the time of the asserted violation to preserve the issue. See State v. Sullivan, 69 Wn. App. 167, 173, 847 P.2d 953, review denied, 122 Wn.2d 1002 (1993). See also Karl B. Tegland, 5 Washington Practice: Evidence Law and Practice sec. 103.4 (4th ed. 1999) (To excuse the necessity of objecting, the motion in limine 'should . . . demonstrate why the moving party should be spared the necessity of calling attention to the evidence by objecting when it is offered at trial.'). In the motion in limine here, the trial court had not been asked to rule, nor had it ruled, that no objection was required should a violation occur. Under these circumstances, Otzenberger waived the error by failing to timely object. Thus, as a matter of law, the trial court erred by granting a new trial based on unobjected-to defense misconduct.
CR 59(a)(1) and (9): Denial of Fair trial
A trial court may grant a new trial where an adverse party prevents the movant from having a fair trial. CR 59(a)(1). And under CR 59(a)(9), the trial court also has the power to grant a new trial if it determines, in the exercise of its discretion, that substantial justice was not done. Olpinski v. Clement, 73 Wn.2d 944, 951, 442 P.2d 260 (1968). The court must state its reasons for finding a lack of substantial justice. Olpinski, 73 Wn.2d at 951. In Olpinski, the court noted that '{t}he basic question posed by an order granting a new trial upon this ground . . . is whether the losing party received a fair trial.' 73 Wn.2d at 951 (quoting Baxter v. Greyhound Corp., 65 Wn.2d 421, 440, 397 P.2d 857 (1964)).
Here, the reasons the trial court gave for granting a new trial under CR 59(a)(1) and (9) are the same as those stated in its findings regarding the defense misconduct findings. But the trial court's stated reasons do not support the conclusion that Otzenberger did not receive a fair trial, nor do they support the conclusion that she could not have had a fair trial if she had timely objected and a curative instruction been given.
Perpetuation of Testimony By Videotape Deposition
The trial court also based its order granting a new trial on its ruling deny
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