Varco, Inc. v. UNS Electric, Inc.
242 Ariz. 166
| Ariz. Ct. App. | 2017Background
- 2013 fire destroyed Vareo-owned, RW Warehouse-leased building; Vareo sued UNS Electric alleging negligent pole installation/maintenance caused electrical arcing and the fire.
- Pretrial motions in limine excluded evidence of a cigarette butt, evidence that Vareo lacked property insurance, and reserved ruling on certain opinions of UNS expert Keith Paffrath; court limited evidence of smoking and fire-code violations as irrelevant unless tied to causation or damages.
- During trial UNS repeatedly questioned witnesses about smoking, read deposition excerpts about smoking, and asked questions about inspections/certificates despite sustained objections and repeated in-court rulings precluding such evidence.
- UNS also sought to rely on late-disclosed expert testimony regarding fire-code violations; the court found disclosure issues and preclusion for lack of foundation/relevance until a causal link was shown.
- Jury returned a verdict for UNS; Vareo moved for a new trial alleging counsel misconduct and disclosure violations; trial court granted a new trial in a detailed written order, finding misconduct and prejudice; UNS appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether repeated questioning about smoking & reading deposition testimony violated the motion in limine and constituted misconduct | UNS repeatedly violated preclusion; such references improperly suggested an alternative cause of the fire and prejudiced Vareo | Questions about smoking were permissible or de minimis; some questioning was allowed or arose after the door was opened | Court held UNS repeatedly violated the in limine ruling as to smoking; substantial evidence supported finding of intentional misconduct |
| Whether asking UNS expert about lack of building inspection/certificate was improper and constituted misconduct | Asking the expert if the building was never inspected violated preclusion and was intentionally leading to convey inadmissible facts to the jury | UNS contends it was allowed to ask about inspection and the question was not in bad faith or was a permissible inquiry | Court held the question violated prior rulings; asking it after repeated admonitions was intentional misconduct and improperly suggested the building was not inspected |
| Whether late disclosure of expert opinions on fire-code violations justified sanction/new trial | Late disclosure disrupted opposing counsel and prevented fair presentation; disclosure issues contributed to unfair prejudice | UNS argued late disclosures outside juror presence cannot be misconduct or were improperly excluded | Court concluded late disclosure was misconduct that disrupted trial and contributed to prejudice; disclosure rulings supported new trial |
| Whether misconduct was prejudicial enough to require a new trial | Vareo: misconduct was deliberate, concerned core issues (causation/damages), and likely influenced the verdict; cumulative effect warranted new trial | UNS: incidents were minor, peripheral, not argued to jury, and verdict shows case not close; court failed to show jury reached erroneous result | Court found the misconduct significant, deliberate, involving key issues, and apparently successful; new trial affirmed (misconduct need not prove verdict was wrong) |
Key Cases Cited
- Myrick v. Maloney, 235 Ariz. 491 (App. 2014) (missing transcript presumed to support trial court’s ruling)
- Leavy v. Parsell, 188 Ariz. 69 (1997) (test for new trial based on attorney misconduct and resolving doubt for aggrieved party when misconduct is serious)
- Romer-Pollis v. Ada, 223 Ariz. 300 (App. 2009) (abuse-of-discretion standard for trial court rulings)
- Englert v. Carondelet Health Network, 199 Ariz. 21 (App. 2000) (liberal review of orders granting new trials)
- State Farm Fire & Cas. Co. v. Brown, 183 Ariz. 518 (App. 1995) (considerations on review of new-trial rulings)
- Grant v. Arizona Pub. Serv. Co., 133 Ariz. 434 (App. 1982) (misconduct requires showing it probably influenced the verdict)
- Cal X-Tra v. W.V.S.V. Holdings, L.L.C., 229 Ariz. 377 (App. 2012) (trial judge best positioned to assess prejudice from misconduct)
- Liberatore v. Thompson, 157 Ariz. 612 (App. 1988) (trial judges disfavor new trials; prior rulings do not preclude later granting based on cumulative misconduct)
- Sanchez v. Stremel, 95 Ariz. 392 (1964) (cumulative trial misconduct can justify new trial)
- State v. Fischer, 238 Ariz. 309 (App. 2015) (distinguishes motions for new trial based on verdict being contrary to weight of evidence from those based on misconduct)