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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

HELENE DENITANG, et al.

, Plaintiff s /Appellant s ,

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 Plaintiff

s /Appellant s

Miller, Pitt, Feldman & McAnally, P.C., Tucson By Timothy P. Stackhouse, Stanley G. Feldman, Gerald Maltz
Co

- Counsel for Plaintiff

s /Appellant s

The Moulton Law Firm, P.C., Scottsdale By Timothy L. Moulton
Co

- Counsel for Defendant/Appellee FILED 1 2

- 1 -20202

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, Helen e 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.

FACTS 1 AND PROCEDURAL HISTORY 2

¶2 On July 18, 2013, Beti , then 15 years old, was engaging in physical therapy at STI f ollowing 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 a ssistance ” in resolving
th is 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
Decision of the Court

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

, suffer ing 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. T hese 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, A Z Therapy had conducted its most recent annual electrical safety inspection of the treadmill

.
¶4 I n August 2014 , Beti , through his grandmother, Denitang,
file d a complaint against STI and its employees for negligence, premises liability

, and medical negligence in Maricopa County Superior Court cas e

no. CV2014

- 011009

. STI’s insurance carrier intervened

, and t he claims were eventually settled.

¶5 During th e litigation involving STI , s everal 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. Le ggett was hired to examine the mechanical /functional aspects of
the treadmill and to address the opinions of Bet i ’s expert, David Paulus, Ph.D., a mechanical engineer; Dr. Ivarsson was hired to conduct a biomechanical analysis to determine what fall scenar ios 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 I n March 2015

, approximately one year and eight months after the incident, Leggett and Dr. Ivarsson inspect ed , measured, and
conducted various operational test s on the treadmill , i ncluding 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 perf ormed their only inspect ion o f the treadmill. Subsequently, Leggett and Dr.

3 This was the third time Beti ha d used the treadmill.DENITANG, et al. v. ARIZONA THERAPY
Decision of the Court

4 Ivarsson i nspect ed the treadmill a gain in February 2017

. Finally, i n April
2017

, Leggett conduct ed a nother inspection of the treadmill , which was

a pparentl y still in use

. 4

¶7 In Se ptember 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 a s 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) den ied 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. No t 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. Paulu s 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 testi fied he walked, ran, and changed
elevation on the treadmill wh ile conducting his examination of the machine, and he conceded he had not tripped, stumbled, slipped, f allen , or lost his balance

, despite wearing hiking shoes while doing so. Dr. Knapp testifi ed 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 b elt.

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

was eventually taken out of service, bu t they were unclear when that
occurred

. Dr. Paulus , relying on the statements of th os e 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

y ears of service “wouldn ’ t have changed it that much more.”DENITANG, et al. v. ARIZONA THERAPY
Decision of the Court

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 fail ed 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 i t, ” 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

, co nduct safety checks on, and maintain the treadmill

— that he was unaware of any “mechanical problems, defects, co nditions or incidents involving this
treadmill

, ” either in the three years he had been employed at STI before Beti’s accident or in the years after ward

.
¶11 At the conclusion of the nine

- day trial, the jury returned a general defense verdict in favor of AZ The rapy. 6 T he superior court subsequently entered fina l 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 inter rogatories 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 i n 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)).DENITANG, et al. v. ARIZONA THERAPY
Decision of the Court

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); Ontive ros 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

— Leg gett 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 testimony 7 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
A Z 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, b ecause 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 Ar iz. 449, 452, ¶ 11 (App. 2017) (recognizing t he simple intent of the rule is to limit the presentation of
cumulative evidence ).DENITANG, et al. v. ARIZONA THERAPY
Decision of the Court

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 wil l 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 Ari z. 43, 46, ¶ 9 (1998).

¶16 W e 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. Fis c her

, 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) )

. D etermin ing the credibility of
witnesses and find ing 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 tr aining, 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 prej udiced, we examine
whether the alleged errors materially affect ed 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. Trans p ac ific 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 deci ding 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
Decision of the Court

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 sho uld 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 Th erapy’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 faci lity 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 H aving 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 the refore 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 allege d 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 th at 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 th e defense experts can hardly be characterized as impermissibly cumulative.DENITANG, et al. v. ARIZONA THERAPY
Decision of the Court

9 25

. O n this record, Beti’s generalized claim that he was prejudiced is simply unsupported. 11

I I

. Alleged Witness Coaching

¶21 Beti also argues the superior court abuse d 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,

Tim othy L. Moulton, alleged ly coach ed Stotts while Sto tt s 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 eviden tiary 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

, se e State v. Fullen , 1 Ariz. App. 466 , 470 (1965).

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

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.’” ( quo ting 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 Thera py 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. T he plain language of A.A.C. R9

- 10

- 1030 d oes 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 cha racterized 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, w e have serious doubts whether AZ Therapy v oluntarily 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 wi th State of Arizona electrical safety regulations

.DENITANG, et al. v. ARIZONA THERAPY
Decision of the Court

10 (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 tha t “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 d iscussion, 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 email ed the court and Beti’s counsel, moving for a mistrial or other curative measures on the basis t hat 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 obje cted to both the motion for a mistrial and

remov al 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

11 or otherwise question the juror, 14 t he 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 ju ry 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 Th e 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 se cond request for an evidentiary hearing

, based in part on an alleged unrelated error in the certified transcript 16 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, t he 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 th is issue, and Beti’s counsel did not object.

15 D uring 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 po rtion of the July 16, 2019 (Day 7 ) trial transcript thatDENITANG, et al. v. ARIZONA THERAPY
Decision of the Court

12 [Beti] did not identify any evidenc e 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 disp uted [AZ
Th e rapy’s] assertions. The Court will not schedule an evidentiary hearing without such information.

¶28 The superior court then denied Beti’s new trial motion, reject ing 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. Moreove r, 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 i n 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 testifi ed 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

13 initially conced ing that no impropriety had occurred

, (2) failing to review the FTR recording be fore 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 mod ification 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, t he 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 no thing 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 ex cept 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 & Psy chiatry , 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 S tate v. Henderson , 210 Ariz. 561 , 567, ¶ 19 (2005) ( dis approving 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 case s on their merits ”).

¶31 On this record, t he 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 A Z 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 O n 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 tr igger 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 stateme nt 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 visi on, 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. T he court denied the objection, explaining that counsel “ doesn’t want a witness to answer something that he finds objectionable.” Later that day, t he 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 st an d 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 unsupport ed 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.