Wetherilt v. Moore, 1 CA-CV 15-0143

Background

On Jan. 28, 2011 an experimental RANS S-6ES lost elevator control in flight; pilot Kevin Wetherilt crash-landed without fatal injury. Owner Patten Harvey and pilot Wetherilt sued mechanic Patrick Moore (an A&P) alleging negligent annual inspection caused the elevator control linkage to disconnect.
Post-crash investigators (FAA/NTSB materials) found bolts, nuts, washers and cotter pins missing from the elevator push-pull linkage; probable cause noted a disconnection due to incorrect installation/maintenance allowing a bolt to fall out.
Moore performed the plane’s annual inspection on Nov. 15, 2010 and testified he found the linkage hardware secure; he denied handling the elevator assembly afterward except for limited servicing; others also had access to the aircraft after that inspection.
At trial the defense argued someone removed the hardware after Moore’s inspection; the defense also questioned the validity/issuance circumstances of Harvey’s FAA airworthiness certificate (builder eligibility) for impeachment and damages valuation purposes.
After a four-day jury trial the jury returned a unanimous defense verdict; the trial court denied Plaintiffs’ motion for a new trial. The Court of Appeals affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of airworthiness-certification evidence	Harvey: FAA certificate issuance circumstances were irrelevant and should not be used to suggest causation or to prejudice liability.	Moore: Evidence about the certificate and Harvey’s builder misrepresentations was admissible to impeach credibility and to show diminished market value (damages).	Court: Pretrial limitation proper — airworthiness evidence not for causation but admissible for impeachment and damages; no abuse of discretion.
Alleged defense counsel misconduct (opening, cross, closing)	Plaintiffs: Defense repeatedly raised improper topics (airworthiness, insurance, insinuations that someone else disassembled the linkage) creating prejudice and warranting a new trial.	Moore: Statements were within permitted impeachment/damages scope; jury was instructed lawyers’ statements are not evidence; any misstatements were inadvertent and cured by instructions.	Court: No reversible misconduct; jury presumed to follow limiting instructions; no prejudice shown.
Expert/scope testimony (James Woods)	Plaintiffs: Woods testified beyond Rule 26.1 disclosure and outside his disclosed expertise (accident cause, reconstruction), unfairly surprising Plaintiffs.	Moore: Woods’ background warranted testimony; issues had been disclosed; objections were either withdrawn or the door opened on cross.	Court: No abuse of discretion — testimony was cumulative, within scope, or opened by Plaintiffs; no unfair surprise or prejudice.
Improper mention of insurance	Plaintiffs: Defense’s mention that "insurance was concerned" misled jurors to think plane was insured and prejudiced Plaintiffs.	Moore: Mention was inadvertent, referred to owner’s insurance context (not liability), and cured by court instruction forbidding consideration of insurance.	Court: No reversible error — limited/inadvertent mention and correct curative instruction; no prejudice established.

Key Cases Cited

Gemstar Ltd. v. Ernst & Young, 185 Ariz. 493 (1996) (trial-court evidentiary rulings reviewed for abuse of discretion)
LeBlanc v. State, 186 Ariz. 437 (1996) (jurors presumed to follow trial-court instructions)
Maxwell v. Aetna Life Ins. Co., 143 Ariz. 205 (1984) (misconduct requires showing it probably influenced the verdict)
Muehlebach v. Mercer Mortuary & Chapel, Inc., 93 Ariz. 60 (1963) (mere mention of insurance does not automatically require new trial absent prejudice)
Hutcherson v. City of Phoenix, 192 Ariz. 51 (1998) (appellate court will not reweigh evidence; trial judge seen as best positioned to assess need for new trial)
Logerquist v. McVey, 196 Ariz. 470 (2000) (credibility determinations are for the jury)