NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

HELENE DENITANG, et al., Plaintiffs/Appellants,

v.

ARIZONA THERAPY SOURCE SALES SERVICE, INC., 

Defendant/Appellee.

No. 1 CA-CV 20-0050

Appeal from the Superior Court in Maricopa County

No. CV2017-012355

The Honorable James D. Smith, Judge

AFFIRMED

COUNSEL

Gill Law Firm, Buckeye

By Jeffrey R. Gill, Meghann L. St. Thomas

Co-Counsel for Plaintiffs/Appellants

Miller, Pitt, Feldman & McAnally, P.C., Tucson

By Timothy P. Stackhouse, Stanley G. Feldman, Gerald Maltz

Co-Counsel for Plaintiffs/Appellants

The Moulton Law Firm, P.C., Scottsdale

By Timothy L. Moulton

Co-Counsel for Defendant/Appellee

FILED 12-1-2020
2

Hill, Hall & DeCiancio, PLC, Phoenix

By Christopher Robbins

Co-Counsel for Defendant/Appellee

Mark W. Clary, P.L.L.C., Tempe

By Mark W. Clary

Co-Counsel for Defendant/Appellee

MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which 

Presiding Judge Jennifer B. Campbell and Chief Judge Peter B. Swann

joined.

W I N T H R O P, Judge:

¶1 Plaintiff Samuel Ndjedanem Beti, by and through his legal 

guardian, Helene Denitang, appeals the superior court’s judgment after a 

jury trial in favor of Defendant Arizona Therapy Source Sales Service, Inc. 

(“AZ Therapy”). The underlying negligence action arose out of injuries Beti 

sustained during a physical therapy session at Strength Training, Inc. 

(“STI”). Beti argues that several errors occurred that require a new trial. 

For the following reasons, we affirm.

FACTS1 AND PROCEDURAL HISTORY2

¶2 On July 18, 2013, Beti, then 15 years old, was engaging in 

physical therapy at STI following knee surgery due to a basketball injury. 

The physical therapy included walking on a treadmill owned and 

1 We review the evidence in the light most favorable to upholding the 

verdict. See, e.g., McFarlin v. Hall, 127 Ariz. 220, 224 (1980).

2 AZ Therapy argues Beti’s “Statement of Facts” in his opening brief 

“is so cryptic and incomplete as to provide little assistance” in resolving 

this appeal. We agree that Beti’s briefing contains deficiencies. See, e.g., 

ARCAP 13(a)(5), (7). Nonetheless, we decline to summarily reject Beti’s 

appeal on this basis. See Clemens v. Clark, 101 Ariz. 413, 414 (1966); Lederman 

v. Phelps Dodge Corp., 19 Ariz. App. 107, 108 (1973).
DENITANG, et al. v. ARIZONA THERAPY

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3

maintained by STI.3 At some point while on or near the treadmill, Beti fell 

and hit his head on the floor of the STI facility, suffering brain trauma. STI 

personnel did not observe the fall.

¶3 Prior to these events, STI conducted daily, weekly, and 

monthly inspections, testing, and maintenance of the treadmill to ensure it

was working properly. Additionally, STI had hired AZ Therapy to perform 

annual electrical safety inspections of some of its training equipment, 

including the treadmill used by Beti. These inspections were solely

electrical safety inspections intended to prevent electrical-shock or fire 

hazards; they did not include, or need to include, inspection of mechanical 

components, such as the deck or belt. On May 30, 2013, approximately two 

months before Beti was injured, AZ Therapy had conducted its most recent

annual electrical safety inspection of the treadmill.

¶4 In August 2014, Beti, through his grandmother, Denitang, 

filed a complaint against STI and its employees for negligence, premises 

liability, and medical negligence in Maricopa County Superior Court case 

no. CV2014-011009. STI’s insurance carrier intervened, and the claims were 

eventually settled.

¶5 During the litigation involving STI, several experts performed 

multiple inspections of the treadmill. STI had retained Timothy Leggett, a 

mechanical engineer, and Johan Ivarsson, Ph.D., a biomechanical engineer,

to inspect STI’s facility and the treadmill, prepare reports, and possibly 

testify. Leggett was hired to examine the mechanical/functional aspects of 

the treadmill and to address the opinions of Beti’s expert, David Paulus,

Ph.D., a mechanical engineer; Dr. Ivarsson was hired to conduct a 

biomechanical analysis to determine what fall scenarios were consistent 

with the evidence in the case and to address the opinions of Kerry Knapp, 

Ph.D., Beti’s expert in injury biomechanics and human anatomy.

¶6 In March 2015, approximately one year and eight months 

after the incident, Leggett and Dr. Ivarsson inspected, measured, and 

conducted various operational tests on the treadmill, including walking on 

it at different speeds and elevations, and observing others using it. They 

also gathered information about what had happened on the day of Beti’s 

injury and Beti’s body position after the incident. Dr. Ivarsson returned to 

inspect the treadmill again in March 2016. On September 30, 2016—more 

than three years after Beti’s accident—Dr. Paulus and Dr. Knapp performed 

their only inspection of the treadmill. Subsequently, Leggett and Dr. 

3 This was the third time Beti had used the treadmill.
DENITANG, et al. v. ARIZONA THERAPY

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4

Ivarsson inspected the treadmill again in February 2017. Finally, in April 

2017, Leggett conducted another inspection of the treadmill, which was 

apparently still in use.

4

¶7 In September 2017, Beti, through Denitang, filed a negligence 

complaint against AZ Therapy. Beti alleged that, in inspecting the 

treadmill, AZ Therapy negligently failed to identify and repair the 

treadmill’s worn deck, and as a result, when Beti was using the treadmill, 

the belt snagged on the deck, causing it to “stutter” and causing Beti to fall 

off the treadmill.

¶8 AZ Therapy (1) denied that it owed Beti a duty; (2) contended 

that even if a duty existed, it had not breached any duty; and (3) denied that 

any of Beti’s injuries were actually or proximately caused by its actions or 

failure to act. AZ Therapy maintained Beti could not show its electrical 

inspection was negligent or that any treadmill problem, if one existed,

caused Beti to fall. Not surprisingly, AZ Therapy contended that, at best, 

Beti’s experts could “only guess or speculate about the possible events 

leading up to and causing the alleged uncontrolled fall.”

¶9 At trial, Dr. Paulus and Dr. Knapp testified on behalf of Beti. 

Dr. Paulus testified he was retained to inspect the condition of the treadmill, 

and he opined that the treadmill had become unsafe to use because the belt 

was “glazed,” the deck was “worn out,” and the handrails were “loose.” 

On cross-examination, Dr. Paulus testified he walked, ran, and changed 

elevation on the treadmill while conducting his examination of the 

machine, and he conceded he had not tripped, stumbled, slipped, fallen, or 

lost his balance, despite wearing hiking shoes while doing so. Dr. Knapp 

testified that Beti’s resting position was consistent with an uncontrolled fall 

off the back of the treadmill while it was running at 3.3 miles per hour. On 

further direct examination, Dr. Knapp testified that although he was “old” 

with “walking issues,” he also had walked on the treadmill—ostensibly 

while wearing cowboy boots—without falling, but he did note he held onto 

the treadmill’s rails as a safety precaution. Neither testified to experiencing 

or observing any “stutter” in the operation of the treadmill belt.

4 At trial, some STI employees testified they believed the treadmill

was eventually taken out of service, but they were unclear when that 

occurred. Dr. Paulus, relying on the statements of those STI employees,

testified he believed the treadmill had been taken out of service, but stated 

that even if it had not been, the additional wear from several additional 

years of service “wouldn’t have changed it that much more.”
DENITANG, et al. v. ARIZONA THERAPY

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5

¶10 AZ Therapy retained Leggett and Dr. Ivarsson, the same 

experts retained by STI, and each testified at trial. Leggett testified in part 

that when he walked on the treadmill and observed others, including Dr. 

Ivarsson, doing so, the treadmill appeared to run properly and he observed 

nothing wrong with its belt or deck; he conceded, however, that he had not 

dismantled the machine to look under the belt. Dr. Ivarsson testified in part 

that he and Leggett, who vary substantially in size, each walked on the 

treadmill to determine if its deceleration might be affected by body weight, 

and he opined that “basic physics” disproved Dr. Knapp’s opinion, which 

he contended failed to account for critical facts and testimony from other 

witnesses. On cross-examination, he explained he had walked on the 

treadmill because he “wanted to get a sense for it,” and that he was not 

necessarily implying the treadmill was safe when Beti was injured.5 AZ 

Therapy also elicited testimony on cross-examination from a long-time STI 

employee, Dane Dorsten—whose duty it was to inspect, conduct safety 

checks on, and maintain the treadmill—that he was unaware of any 

“mechanical problems, defects, conditions or incidents involving this 

treadmill,” either in the three years he had been employed at STI before

Beti’s accident or in the years afterward.

¶11 At the conclusion of the nine-day trial, the jury returned a 

general defense verdict in favor of AZ Therapy.6 The superior court 

subsequently entered final judgment in favor of AZ Therapy. Beti moved 

for a new trial and an evidentiary hearing on the motion, which the court

denied.

¶12 We have jurisdiction over Beti’s timely appeal. See Ariz. Rev.

Stat. (“A.R.S.”) § 12-2101(A)(1), (5)(a).

5 Beti concedes that “Dr. Ivarsson did not testify about whether the 

treadmill seemed to operate safely.”

6 The verdict forms contained no findings except the verdict (and an 

allocation of fault and damages if the jury found AZ Therapy liable). 

Additionally, no special interrogatories were submitted to the jury, and it 

appears none were requested. In general, “[t]he rule in Arizona is that, in 

the absence of a request that the jury bring in a special verdict on each count 

if several counts, issues or theories are tried and submitted to the jury, a 

general verdict will stand if evidence on one count, issue or theory is 

sufficient to sustain the verdict.” Papastathis v. Beall, 150 Ariz. 279, 283 

(App. 1986) (citing Reese v. Cradit, 12 Ariz. App. 233, 238-39 (1970) (citing 

cases)).
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6

ANALYSIS

I. Beti’s Challenges to AZ Therapy’s Expert Witnesses

¶13 To establish a negligence claim, a plaintiff must prove four 

elements: (1) a legal duty or obligation requiring the defendant to conform 

to a certain standard of care; (2) the defendant’s failure to conform to the 

required standard; (3) a causal connection between the defendant’s conduct 

and the plaintiff’s resulting injury; and (4) actual loss or damages. Gipson 

v. Kasey, 214 Ariz. 141, 143, ¶ 9 (2007); Ontiveros v. Borak, 136 Ariz. 500, 504 

(1983) (citing William L. Prosser, Handbook on the Law of Torts § 30, at 143 

(4th ed. 1971); Wisener v. State, 123 Ariz. 148, 149 (1979)).

¶14 On appeal, Beti argues the superior court erred in allowing 

AZ Therapy’s experts—Leggett and Dr. Ivarsson—to testify about their 

post-accident use of the treadmill and Leggett’s observations of others 

walking on the treadmill without incident because their testimony was not 

the proper subject of expert testimony7 and was, according to Beti, at least

in part duplicative, violating the one-expert-per-issue rule.

8 Beti further 

maintains “[t]here was no foundation for admission of the purported lack 

of post-incident accidents” because “[t]here was no testimony that STI or 

AZ Therapy had any system in place to ensure they would have known of 

any incidents,” and any testimony about walking on the treadmill “was not 

helpful to the jury.”

7 Beti argues AZ Therapy’s experts provided mere “opinion 

testimony,” akin to a lay witness testifying to the estimated speed of an 

automobile, because they provided relatively few facts to support the 

inferences they drew.

8 To avoid duplicative and cumulative expert opinions, each side is 

presumptively allowed only one expert per issue. See Ariz. R. Civ. P. 

(“Rule”) 26(b)(4)(F)(i) (stating that, generally, “[u]nless the parties agree or 

the court orders otherwise for good cause, each side is presumptively 

entitled to call only one retained or specially employed expert to testify on 

an issue”). Nonetheless, the rule contemplates liberal expansion of its 

presumptive limitation when “an issue cuts across several professional 

disciplines.” Ariz. R. Civ. P. 26(b)(4) cmt. to 1991 amend. to Rule 26(b)(4)); 

see also Hardt v. AZHH, LLC, 242 Ariz. 449, 452, ¶ 11 (App. 2017) 

(recognizing the simple intent of the rule is to limit the presentation of 

cumulative evidence).
DENITANG, et al. v. ARIZONA THERAPY

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7

¶15 We will affirm the superior court’s rulings on the admission 

of evidence absent an abuse of discretion or legal error and resultant 

prejudice. See Gemstar Ltd. v. Ernst & Young, 185 Ariz. 493, 506 (1996); Brown 

v. U.S. Fid. & Guar. Co., 194 Ariz. 85, 88, ¶ 7 (App. 1998) (citing Gasiorowski 

v. Hose, 182 Ariz. 376, 382 (App. 1994)). Thus, we will not reverse if the jury 

would have reached the same verdict without the admitted evidence. See 

Brown, 194 Ariz. at 88, ¶ 7. We review legal questions and the interpretation 

of statutes de novo. See, e.g., Open Primary Elections Now v. Bayless, 193 Ariz. 

43, 46, ¶ 9 (1998).

¶16 We also review the denial of a motion for a new trial for an 

abuse of discretion. First Fin. Bank, N.A. v. Claassen, 238 Ariz. 160, 162, ¶ 8 

(App. 2015); Larsen v. Decker, 196 Ariz. 239, 244, ¶ 27 (App. 2000). In 

considering a motion for a new trial, the superior court “must respect the 

role of the jury and the integrity of the jury trial system.” State v. Fischer, 

242 Ariz. 44, 50, ¶ 19 (2017) (citing Cal X–Tra v. W.V.S.V. Holdings, L.L.C., 

229 Ariz. 377, 403, ¶ 88 (App. 2012)). Determining the credibility of 

witnesses and finding the facts is primarily the province of the jury, and a 

judge has no “vote in deciding the case, much less a vote equal to or greater 

than that of the jurors; but given the judge’s training, experience, and 

unique vantage point, the judge must have substantial latitude in 

overseeing the jury verdict.” Id.; see also Reeves v. Markle, 119 Ariz. 159, 163 

(1978) (recognizing that we generally afford the trial court wide deference 

because “[t]he judge sees the witnesses, hears the testimony, and has a 

special perspective of the relationship between the evidence and the verdict 

which cannot be recreated by a reviewing court from the printed record”).

¶17 In determining whether Beti has been prejudiced, we examine 

whether the alleged errors materially affected his rights. See Ariz. R. Civ. 

P. 59(a)(1) (“The court may, on motion, grant a new trial on all or some of 

the issues--and to any party--on any of the following grounds materially 

affecting that party’s rights . . . .”); see also Callender v. Transpacific Hotel 

Corp., 179 Ariz. 557, 562 (App. 1993) (“To justify reversal, trial errors must 

be prejudicial to the substantial rights of the appealing party.” (citing 

Walters v. First Fed. Sav. & Loan Ass’n of Phoenix, 131 Ariz. 321, 326 (1982))).

¶18 Here, even assuming without deciding that the superior court 

improperly admitted some portions of testimony from AZ Therapy’s 

experts, and further assuming none of Beti’s arguments with regard to the 

expert testimony were waived (as argued by AZ Therapy), Beti cannot 

demonstrate that his rights were materially affected and prejudice resulted 

requiring a new trial.
DENITANG, et al. v. ARIZONA THERAPY

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8

¶19 In considering Beti’s motion for a new trial, the superior court 

thoroughly addressed Beti’s expert witness testimony arguments, 

including his argument that, if the evidence should have been excluded, he 

had been prejudiced. In concluding that Beti had not been prejudiced, the 

court explained:

[Beti’s] claim depended on [AZ Therapy] performing 

comprehensive safety checks of the equipment at the physical 

therapy facility. [AZ Therapy’s] principal [Alan Stotts] 

testified unambiguously that he never provided 

comprehensive safety inspections; instead, his annual visits 

examined only the electrical functions of certain machines.[9] 

Every witness from the [STI] physical therapy facility 

acknowledged that facility employees performed daily, 

weekly, and monthly inspections—inspections that one 

would expect to note worn decks or belts. The jury learned of 

[Beti’s] allegations in earlier litigation that the physical 

therapy facility was responsible for the unreasonably 

dangerous condition of the treadmill.[10]

¶20 Having observed first-hand the witnesses and evidence 

presented, the superior court was best qualified to determine whether a 

new trial was warranted. See Reeves, 119 Ariz. at 163. The superior court 

did not abuse its sound discretion in concluding the jury would have 

reached the same verdict even without presentation of the challenged 

evidence, and therefore did not abuse its discretion in upholding the verdict 

and denying Beti’s motion for a new trial. See Fischer, 242 Ariz. at 50, ¶¶ 19-

9 Beti never alleged that any electrical problem with the treadmill 

caused him to fall, and at oral argument, Beti’s appellate counsel conceded 

this was “not an electrical accident.” Further, Beti’s expert witness, Dr. 

Paulus, testified he did not find any electrical problem with the treadmill; 

instead, he identified only what he believed were mechanical problems with 

the treadmill.

10 We further note that AZ Therapy’s experts, by category of expertise, 

corresponded to those utilized by Beti; as such, any general assertion that 

AZ Therapy violated the “one expert per issue” rule is rejected out of hand. 

Further, the testimony of Leggett and Dr. Ivarsson was responsive to the 

observational and opinion testimony offered by Dr. Paulus and Dr. Knapp. 

As such, the testimony of the defense experts can hardly be characterized 

as impermissibly cumulative.
DENITANG, et al. v. ARIZONA THERAPY

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25. On this record, Beti’s generalized claim that he was prejudiced is simply 

unsupported.11

 II. Alleged Witness Coaching

¶21 Beti also argues the superior court abused its discretion by not 

holding an evidentiary hearing on a juror’s allegation of witness 

“coaching.” Beti maintains he was denied a fair trial when defense counsel, 

Timothy L. Moulton, allegedly coached Stotts while Stotts was on the 

witness stand.

¶22 We will not overturn a decision regarding the conduct of a 

trial absent an abuse of the superior court’s discretion. See State v. Just, 138 

Ariz. 534, 550 (App. 1983). Further, we review for an abuse of discretion 

the superior court’s denial of an evidentiary hearing, see State v. Hidalgo, 241 

Ariz. 543, 548, ¶ 7 (2017), and the denial of a motion for new trial based on 

alleged witness coaching, see State v. Fullen, 1 Ariz. App. 466, 470 (1965).

¶23 In general, a party’s failure to object at the time of an alleged 

error constitutes a waiver of the objection, absent fundamental error. See 

generally Monaco v. HealthPartners of S. Ariz., 196 Ariz. 299, 305, ¶ 16 (App. 

1999) (“Prompt objection allows the trial court to ‘impose restraints upon 

counsel once it appears that argument is proceeding past legitimate 

boundaries.’” (quoting Grant v. Ariz. Pub. Serv. Co., 133 Ariz. 434, 453 

11 At oral argument, Beti’s appellate counsel argued the testimony of 

Mark Hyland, the clinical director at STI, established that AZ Therapy owed 

a duty to Beti and others using the STI equipment based on the 2013 version 

of Arizona Administrative Code (“A.A.C.”) R9-10-1030 and the oral 

agreement and course of conduct between STI and AZ Therapy. The plain 

language of A.A.C. R9-10-1030 does not by itself establish such a duty on 

AZ Therapy’s part, and the testimony of Hyland—who conceded 

throughout his testimony that he did not recall any conversations with 

Stotts as to AZ Therapy’s responsibilities and did not know or understand 

what AZ Therapy did—may be generously characterized as equivocal

speculation, even assuming, as we must, that he was credible. See Premier 

Fin. Servs. v. Citibank (Ariz.), 185 Ariz. 80, 85 (App. 1995). Accordingly, 

although we do not decide the issue, we have serious doubts whether AZ 

Therapy voluntarily assumed a duty to Beti and other users of the treadmill 

to provide mechanical inspections or otherwise prevent slips, trips, and 

falls based on the oral agreement between AZ Therapy and STI for AZ 

Therapy to ensure that STI stay in compliance with State of Arizona 

electrical safety regulations.
DENITANG, et al. v. ARIZONA THERAPY

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(1982))). Further, we will not reverse a superior court’s discretionary, 

factual finding that attorney misconduct did not occur or did not actually 

influence the verdict unless the record clearly establishes the court was 

incorrect. Id. at ¶ 18 (“[E]ven if we assume misconduct did occur, the trial 

court’s denial of appellants’ motion for new trial necessarily implies that 

the court did not find the misconduct of such magnitude that it actually 

influenced the verdict.”).

¶24 On the eighth day of trial, after Stotts testified, the superior 

court advised both counsel outside the presence of the jury that a juror had 

informed the bailiff that “she observed [AZ Therapy’s counsel] Mr. 

Moulton shaking his head or nodding [and] that the juror interpreted [this] 

to be coaching the witness [Alan Stotts].”12 The superior court noted that it 

“didn’t observe anything,” but suggested that, ”if somebody feels like they 

need to go look at FTR[13]to see what’s going on, they can . . . and then if 

you want to point me to specific timestamps, I’ll take a look at it.” Moulton 

denied having coached Stotts, and after a brief discussion, Beti’s counsel 

agreed, stating, “And our position, . . . I don’t think there’s any 

impropriety.” Beti’s counsel then stated he did not “want to investigate if 

Mr. Moulton did something wr[o]ng,” but requested that he be allowed to 

“look at some case law tonight just to see if there’s any issues” and “to 

preserve anything that we need to do given what was reported.”

¶25 Later that evening, AZ Therapy emailed the court and Beti’s 

counsel, moving for a mistrial or other curative measures on the basis that 

it had been, or was likely to be, prejudiced by the juror’s observations. 

Before trial continued the next morning, the court addressed the motion, 

noting that “one of the proposals was that we remove that juror as an 

alternate.” Counsel for Beti objected to both the motion for a mistrial and 

removal of the juror as a curative measure. After a lengthy discussion,

during which neither party requested the court hold an evidentiary hearing 

12 The court did not provide either counsel with the juror’s identity.

13 In general, FTR, or “For the Record,” is a digital video recording 

system used to record court proceedings, often in lieu of a court reporter. 

Gersten v. Gersten, 223 Ariz. 99, 101, ¶ 3 (App. 2009).
DENITANG, et al. v. ARIZONA THERAPY

Decision of the Court

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or otherwise question the juror,14 the court denied the motion.

15 As part of 

the discussion, both parties agreed not to mention the juror’s allegation 

during closing argument, and the court agreed to modify a standard jury 

instruction to address the issue. The modified jury instruction stated, “The 

lawyers’ questions, arguments, and conduct are not evidence. You should 

not consider those things when reaching your verdict.” (Emphasis added.) 

Counsel for both parties agreed to this modified instruction, which the 

court read to the jury as part of the court’s final instructions.

¶26 After the jury rendered its verdict and the court issued its 

judgment in favor of AZ Therapy, Beti moved for a new trial and a related

evidentiary hearing, arguing in part that defense counsel had “improperly 

coached defendant Alan Stotts during cross-examination.”

¶27 The superior court denied Beti’s request for an evidentiary 

hearing, noting, “The FTR recording exists, and the Court is able to review 

it. [Beti] did not explain what other evidence would warrant an evidentiary 

hearing on this issue.” Beti then filed a second request for an evidentiary 

hearing, based in part on an alleged unrelated error in the certified 

transcript16 and in part on Beti’s previous allegation of witness coaching, 

and the court again denied Beti’s request:

14 Although neither party raised the issue of separately questioning the 

juror, the superior court nonetheless stated it was not inclined to do so, out 

of concern that such questioning would simply highlight the issue to the 

juror and, even with instructions not to consider the issue, might create 

prejudice where none existed. AZ Therapy’s counsel expressed agreement 

with the court’s stance as to this issue, and Beti’s counsel did not object.

15 During the discussion, counsel for Beti stated she had not reviewed 

the recording of the previous day’s proceedings, but stated, “I know [the 

court] reviewed it.” The court corrected counsel’s misperception, clarifying 

it had not done so and reminding counsel, “That’s why I brought it to your 

attention; so if you guys thought it was something you wanted to look at, 

you could. And then you could tell me y[ea] or nay we think something 

inappropriate happened.” The court also noted that, given the limitations

of the court’s recording system, it was unlikely any improper conduct, even 

if it did occur, had been recorded.

16 In Beti’s reply to AZ Therapy’s response to his motion for new trial, 

Beti pointed to a portion of the July 16, 2019 (Day 7) trial transcript that 
DENITANG, et al. v. ARIZONA THERAPY

Decision of the Court

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[Beti] did not identify any evidence or testimony he would 

present at such a hearing. [Beti] did not indicate whether his 

counsel reviewed the FTR recording of the portion of the trial 

at issue, whether counsel has contacted the court reporte[r]

about the issue, or whether his counsel disputed [AZ 

Therapy’s] assertions. The Court will not schedule an 

evidentiary hearing without such information.

¶28 The superior court then denied Beti’s new trial motion, 

rejecting Beti’s argument on “witness coaching”:

A juror told Court staff that the juror believed one of 

[AZ Therapy’s] lawyers was coaching [Stotts] via nods and 

headshakes while he testified. The Court reviewed the FTR 

recording of the alleged coaching and did not see any 

improper behavior. [Counsel for Beti] tacitly conceded in her 

Motion [for New Trial] that the recording is benign. If any 

coaching occurred, it was not significant. Moreover, the 

alleged coaching appeared to harm the juror’s impression of 

defense counsel more than anything else. The Court cannot 

discern, and [Beti] did not suggest, any way in which 

purported coaching affected the witness’ testimony. Indeed, 

[Beti] opposed [AZ Therapy’s] motion for a mistrial after the 

Court disclosed the juror’s comments. If [Beti] believed that 

the alleged coaching prevented a fair trial, then [Beti] would 

have endorsed starting anew.

¶29 Beti argues the superior court abused its discretion in denying 

his requests for an evidentiary hearing in support of his motion for a new 

trial. Even assuming arguendo that Beti did not waive his argument by (1) 

indicated AZ Therapy’s counsel elicited testimony from Dr. Ivarsson as 

both a “mechanical engineer” and a “biomechanical engineer.” Beti argued 

Dr. Ivarsson’s testimony was duplicative if he testified in both engineering 

capacities because Timothy Leggett had testified as AZ Therapy’s

mechanical engineering expert. AZ Therapy disputed the accuracy of the 

transcript, arguing counsel had said “biomechanical engineer” in both 

questions to Dr. Ivarsson, and moved to correct the record. After reviewing 

the FTR recording of the portion of the trial at issue, the court concluded 

AZ Therapy’s counsel had used the term “biomechanical engineer” in both 

instances and Beti had effectively conceded this point by failing to respond 

to the motion. The court granted AZ Therapy’s motion to correct the record 

by replacing the word “mechanical” with the word “biomechanical.”
DENITANG, et al. v. ARIZONA THERAPY

Decision of the Court

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initially conceding that no impropriety had occurred, (2) failing to review 

the FTR recording before trial the next day, (3) objecting to both AZ 

Therapy’s motion for a mistrial and removal of the juror as a curative 

measure, (4) failing to timely request the court hold an evidentiary hearing 

or otherwise question the juror, and (5) agreeing that modification of the 

final jury instructions would suffice as a precautionary curative measure, 

we find no error.

¶30 In deciding Beti’s motion for a new trial, the superior court 

reviewed the portion of the July 17, 2019 FTR video at issue (from 2:15 p.m.

to 2:30 p.m.) and “did not see any improper behavior.” We have also 

reviewed that same portion of the FTR recording, which was submitted 

pursuant to this court’s order, and to the extent we were able to view 

counsel and the witness, observed nothing that would support a claim of 

witness coaching. Beti’s attorneys had an opportunity to view the same 

FTR video before requesting an evidentiary hearing, but apparently failed 

to do so, and outside of the jury member’s allegation, they have provided 

nothing except speculation to support their accusation that improper and 

potentially prejudicial witness coaching occurred. We will not reverse 

based on mere unsupported speculation of prejudice, see E. Camelback 

Homeowners Ass’n v. Ariz. Found. for Neurology & Psychiatry, 18 Ariz. App. 

121, 128 (1972), and do not approve of counsel failing to raise or fully litigate 

an issue before the superior court in the hope that, if they fail to win their

case on its merits, they have an “ace in the hole” to rely on as a means of 

securing reversal on appeal, see State v. Henderson, 210 Ariz. 561, 567, ¶ 19

(2005) (disapproving of a defendant “taking his chances on a favorable 

verdict, reserving the ‘hole card’ of a later appeal on a matter that was 

curable at trial, and then seeking appellate reversal” (brackets and citation 

omitted)); Kinman v. Grousky, 46 Ariz. 191, 193 (1935) (noting that such a 

practice is “obviously unfair to a busy trial judge and certainly not in 

furtherance of justice and the determination of cases on their merits”).

¶31 On this record, the superior court did not abuse its discretion 

in denying Beti’s requests for an evidentiary hearing or otherwise err in 

denying Beti’s new trial motion on the basis of the juror’s allegation of 

“witness coaching” by AZ Therapy’s counsel.

 III. Standing While Objecting

¶32 Beti also argues error occurred because AZ Therapy’s counsel 

stood to make objections. We discern no error.
DENITANG, et al. v. ARIZONA THERAPY

Decision of the Court

14

¶33 We will not overturn a decision regarding the conduct of a 

trial absent an abuse of the superior court’s discretion. See Just, 138 Ariz. at

550.

¶34 On the second day of trial, the superior court requested that 

AZ Therapy’s counsel stand when making an objection, stating, “Counsel, 

if you stand when you make an objection, it will trigger the witness [to 

either not answer or stop talking], and it will also give me an opportunity 

to see if there’s an objection.”17 AZ Therapy’s counsel agreed to do so. Later 

that same day, the court reminded both counsel:

Oh, and I did make a statement during the testimony, 

but just for both of you. If you are making an objection, it’s 

much better for me if you stand, because I’m either looking at 

the witness [or] I may be pulling up an exhibit, so I’ll see 

somebody stand up out of my peripheral vision, and I can 

either stop a witness from answering, or I’ll be able to address 

it much more effectively that way. Plus, it will also signal to 

the witness that there’s something about to happen, and he or 

she probably will stop. And if they don’t stop, I’ll interrupt 

them.

¶35 On the eighth day of trial, Beti’s counsel objected to AZ 

Therapy’s counsel standing while making objections. The court denied the 

objection, explaining that counsel “doesn’t want a witness to answer 

something that he finds objectionable.” Later that day, the court reminded 

Beti’s counsel to do the same, stating, “By the way, again, as I explained 

earlier, could you stand when you state an objection so we’re all aware that 

the objection is coming?” Beti’s counsel also agreed to do so.

¶36 In this case, by standing when making an objection, AZ 

Therapy’s counsel merely followed the superior court’s instruction that

counsel stand to make objections. Beti does not explain how he was 

prejudiced by this common-sense procedure, and we find no error in its 

application.

17 In its answering brief, AZ Therapy represents, without citation to the 

record, that on the last page of the superior court’s “Protocols,” the court 

had previously directed the attorneys to stand when making objections. 

Beti does not dispute this unsupported representation in his reply brief.
DENITANG, et al. v. ARIZONA THERAPY

Decision of the Court

15

CONCLUSION

¶37 The superior court’s judgment is affirmed.