Romero v. Langston ( 2018 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
CONSUELO ROMERO, et al., Plaintiffs/Appellants,
v.
BEVERLY LANGSTON, Defendant/Appellee.
No. 1 CA-CV 17-0178
FILED 3-22-2018
Appeal from the Superior Court in Maricopa County
No. CV 2013-010850
The Honorable Jo Lynn Gentry, Judge
AFFIRMED
COUNSEL
Bedford Douglass, Jr., Attorney at Law, Mesa
By Bedford Douglass, Jr.
Counsel for Plaintiffs/Appellants
Law Office of Robert B. Stanewich, Phoenix
By Angelo J. Patane
Counsel for Defendant/Appellee
ROMERO et al. v. LANGSTON
Decision of the Court
MEMORANDUM DECISION
Judge Maurice Portley1 delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge Maria Elena Cruz joined.
P O R T L E Y, Judge:
¶1 Consuelo Romero and her husband, Hector Romero, appeal
from the denial of their motion for new trial after a defense jury verdict. For
the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Beverly Langston carelessly drove her car into the back of the
car Mrs. Romero was driving in February 2012. Although the investigating
officer concluded that Mrs. Romero was injured, she declined the offer for
an ambulance. Instead, when Mr. Romero arrived, he drove her to her
primary doctor. Dr. Rosen examined her, noted she was suffering from a
headache, neck pain, and left shoulder pain, which he attributed to
whiplash, and diagnosed her with a grade II concussion.
¶3 The Romeros subsequently sued Langston for negligence.
Mrs. Romero sought damages for her injuries and her alleged pain and
suffering resulting from the accident, while Mr. Romero sought damages
for loss of consortium. They did not request, however, “compensation for
property damages or medical expenses.”
¶4 At trial, Langston admitted she drove her car into Mrs.
Romero’s car. She disputed that the accident caused Mrs. Romero’s pain
and suffering, attributing her pain instead to prior injuries and pre-existing
conditions. After the presentation of evidence, instructions and final
argument, the jury returned a defense verdict in favor of Langston and
against the Romeros. They then filed an unsuccessful motion for new trial.
They appeal, and we have jurisdiction pursuant to Arizona Revised Statute
(A.R.S.) section 12-2101(A).
1 The Honorable Maurice Portley, Retired Judge of the Arizona Court
of Appeals, Division One, has been authorized to sit in this matter pursuant
to Article VI, Section 3 of the Arizona Constitution.
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DISCUSSION
¶5 The Romeros now challenge the denial of their motion for
new trial arguing the evidence cannot support the verdict. They also argue
that the trial court erred by limiting their voir dire and by incorrectly
sustaining an objection during Langston’s cross-examination.
A. Sufficiency of the Evidence
¶6 We review the first argument―the denial of the motion for
new trial―for an abuse of discretion. State v. Fischer, 242 Ariz. 44, 48, ¶ 10
(2017). A trial court may grant a new trial when “the verdict is the result of
passion or prejudice” or “the verdict . . . , or judgment is not supported by
the evidence.” Ariz. R. Civ. P. 59(1)(G)-(H). In fact, the trial court, as the
“ninth juror” has the “duty to grant a new trial when the verdict is against
the clear weight of the evidence.” Fischer, 242 Ariz. at 49, ¶ 14 (emphasis
added).
¶7 We will generally affirm a ruling on a new trial motion
challenging the sufficiency of the evidence as long as there is substantial
evidence supporting the court’s determination. Fischer, 242 Ariz. at 51, ¶
26. Evidence is substantial if it allows “a reasonable person to reach the
[jury’s] result.” Castro v. Ballesteros-Suarez, 222 Ariz. 48, 52, ¶ 11 (App.
2009)(citing Davis v. Zlatos, 211 Ariz. 519, 524, ¶ 18 (App. 2005)). “We will
not reweigh the evidence or substitute our evaluation of the facts.”
Castro, 222 Ariz. at 52, ¶ 11. We will only set aside a jury verdict “if there is
no evidence in the record which would justify such conclusion by the triers
of fact.” Spain v. Griffith, 42 Ariz. 304, 305 (1933); see Castro, 222 Ariz. at 52,
¶ 11. We will not reverse or vacate the ruling merely because “there is a
dispute in the evidence from which reasonable [people] could arrive at
different conclusions as to the ultimate facts.” Spain, 42 Ariz. at 305. In
other words, we will not set aside a jury verdict simply “because we do not
agree with the conclusion reached,” id., because it is the duty of the jury to
determine the credibility of witnesses and the weight to be given to
conflicting testimony. Logerquist v. McVey, 196 Ariz. 470, 487, ¶ 51 (2000).
¶8 In a negligence case, a plaintiff must prove four elements: “(1)
a duty requiring the defendant to conform to a certain standard of care; (2)
a breach by the defendant of that standard; (3) a causal connection between
the defendant’s conduct and the resulting injury; and (4) actual damages.”
Sanders v. Alger, 242 Ariz. 246, 248, ¶ 7 (2017), US Airways, Inc. v. Qwest
Corp., 238 Ariz. 413, 420, ¶ 20. (App. 2015). This case turned on the third
element: whether there was “a causal connection between [Langston’s]
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conduct and [Mrs. Romero’s] resulting injur[ies].” Sanders, 242 Ariz. at 246,
¶ 7.
¶9 During trial, Mrs. Romero presented evidence that her
injuries were caused by the accident and, as a result, she suffered physical
and emotional pain. Dr. Rosen testified that Mrs. Romero told him she was
suffering from neck pain, shoulder pain, and headaches at the time of her
visit. As a result, he attributed her injuries and symptoms to the collision,
and prescribed her physical therapy. He further testified she, despite
completing several therapy sessions, continued to experience neck pain and
“weakness in [her] left shoulder.”
¶10 Mrs. Romero testified that her pain precluded her from doing
household chores, going hiking, and being a loving wife. Her husband and
daughter both testified that after the accident Mrs. Romero had so much
pain that she could not pick up her one-year old grandson, hug him, or help
care for him, which caused her emotional pain. Based on all the testimony
presented, including her inability to go to prayer service, there was
evidence to support her claims.
¶11 Mrs. Romero also testified that she had been in two prior car
accidents: the first in 1995, when she “was hit on the driver’s side” and
suffered right shoulder pain, headaches, and neck pain; and the second in
2000, which caused her pain on her left shoulder, neck, head, and chest.
Moreover, she, and her husband, testified that after the second accident she
continued to experience intermittent physical pain. Her medical records
also demonstrated that she visited different medical facilities intermittently
for pain treatment between 2000 and 2010.
¶12 Although there was evidence suggesting that the injuries to
the left side of Mrs. Romero’s neck and shoulder were caused, or
exacerbated, by the 2012 accident, reasonable jurors could have instead
attributed her injuries to her prior accidents. In fact, given her medical
records, a reasonable juror could have considered all the evidence and
concluded that her injuries were the result of the earlier accidents, not the
2012 accident, except that she used the 2012 accident as an opportunity to
treat those injuries. Because the jurors had to determine witness credibility
and find the facts based on the evidence, and given that there is evidence
that supports the verdict,2 the court did not abuse its discretion by denying
2 In 2014, nearly a year after the lawsuit was filed, Mrs. Romero fell off
a chair and injured her right shoulder. She received treatment at The
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the motion for new trial. See Fischer, 242 Ariz. at 51 ¶ 26; Spain, 42 Ariz. at
305.
B. Voir Dire
¶13 The Romeros also argue that the court erred by restricting
their voir dire on “issues of racial bias, immigration[,] and naturalization.”
Because Plaintiffs have not shown any prejudice, they are not entitled to a
new trial.
¶14 A trial court “must thoroughly question the jury panel to
ensure that prospective jurors are qualified, fair, and impartial.” Ariz. R.
Civ. P. 47(c)(3). Moreover, “[t]he court must permit each of the parties to
ask the panel additional questions, but may impose reasonable limits on
[the extent of] the questioning.” Id. On appeal, “[w]e will not overturn a
trial court’s ruling on the scope of voir dire absent an abuse of discretion,”
nor will we “reverse a judgment unless the error was prejudicial.” Zulaga
v. Bashas’, Inc., 242 Ariz. 205, 207, ¶ 4 (App. 2017).
¶15 Mrs. Romero is a Mexican-born, naturalized American
citizen. Her lawyer attempted to ask the jury venire questions focused on
determining whether the prospective jurors were biased against Hispanic
citizens who were born outside of the United States. Her lawyer argued
that the questions were necessary because then-presidential candidate, and
future Republican presidential nominee, Donald Trump, had recently made
remarks considered to be racist about a large portion of Mexican
immigrants. Because Mr. Trump’s nomination ostensibly “reflect[ed] the
opinions of the nation,” the lawyer argued that he needed to scrutinize the
jury to ensure his clients would not suffer from racial prejudices. The court
allowed counsel to ask certain bias-related questions, but restricted him
from asking others. Specifically, the court told counsel that he could not
ask the prospective jurors “about all the negativity towards Hispanics or
wherever you’re going with that.” Additionally, the court did not allow
Orthopedic Clinic Association (“TOCA”). Impressed by the physical
therapy results, she testified that she requested TOCA to treat her 2012 left
shoulder injury, but denied that her fall from the chair had anything to do
with her left shoulder discomfort.
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counsel to ask questions that were too “specific,” such as whether the jurors
had Hispanic neighbors or whether they spoke Spanish.3
¶16 Assuming, without deciding, that the trial court may have
erred by preventing the lawyer for the Romeros from asking certain bias-
related questions, we conclude that the Romeros have failed to show any
resulting prejudice. During voir dire, the following exchange occurred
between counsel and three prospective jurors:
[Counsel]: Consuelo and Edgar are immigrants
to the United States from Mexico. Do you –
what do you think about giving the same justice
to immigrants from Mexico as you would to a
native-born citizen? Is there anyone who would
have any reluctance to do that?
Prospective Juror Number 31: Are they U.S.
citizens?
...
[Counsel]: Would that make a difference in your
decision?
Prospective Juror Number 31: It could.
[Counsel]: Could you tell us about that?
Prospective Juror 31: I -- I don’t know. I just -- I
just thought that they were, you know, I don’t
know. If they were here illegally it could
possibly make a difference to me.
[Counsel]: And if they are not here illegally, it
makes no difference that they came from
Mexico?
Prospective Juror Number 31: I guess it
wouldn’t matter where they came from. I don’t
know. I guess, I mean, do they have a driver’s
3 The court also noted that “it [did not] matter if [the jurors] employ
Hispanics . . . . work with Hispanics . . . if their relationships with Hispanics
have been favorable or unfavorable.”
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ROMERO et al. v. LANGSTON
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license? Do they -- I don’t know. I -- I guess
that’s where I was coming from. Were they
driving illegally?
[Counsel]: No, there was no illegal driving in
this case, no driving without a driver’s license.
Prospective Juror Number 31: That was my
thought process.
[Counsel]: And they’re not illegal.
....
[Counsel]: Okay. Otherwise . . . assuming that
all the parties in this case had driver’s licenses
or were legally licensed and – but that the
Plaintiffs come from Mexico and immigrated to
the United States, would that or should that
have any effect on your verdict?
Prospective Juror 31: No.
....
The Court: Number 6 has a question.
[Counsel]: Yes.
Prospective Juror Number 6: Did they -- did
they follow the process to immigrate legally or -
-
Unidentified Prospective Juror: What does it
matter?
Prospective Juror Number 6: -- was it done so
through other means?
[Counsel]: They have become legally citizens of
the United States.
Prospective Juror Number 6: When they -- when
they -- I don’t know how touchy or how to
phrase it, but when they came, they did all their
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paperwork and they followed all the
substantive stuff to become citizens and
whatnot before they were here?
[Counsel]: I don’t think I’m allowed to answer
that question.
Prospective Juror Number 6: Okay.
[Counsel]: Would that make a difference in your
decision?
Prospective Juror Number 6: No, sir.
....
Prospective Juror Number 22: To me it might.
[Counsel]: Okay. And why is that?
Prospective Juror Number 22: Why? Because I
don’t believe it’s right just to, either what they
call an anchor baby just to get into the United
States, that kind of -- I mean, I don’t think that’s
right at all.
....
[Counsel]: Is your position that, if a plaintiff
comes to the United States illegally but later
becomes a citizen of the United States, that
that’s somehow improper and they should not
be dealt in court the same as a native-born
citizen?
Prospective Juror Number 22: I do still think
they should be dealt with normally and
properly, but I just feel like that’s very wrong to
do. Why should you be allowed to be in the
country if you’re just going to bring -- do a
felony itself to get into the country? What else
are you willing to do?
[Counsel]: Would that affect -- would that
thinking sort of affect your –
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ROMERO et al. v. LANGSTON
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Prospective Juror Number 22: I mean,
depending on the answer, yes.
[Counsel]: There’s going to be no answer to that
question because the judge does not allow us to
go into that area.
Prospective Juror Number 22: Then I’d hope
not. Then I’d probably just go off of the
evidence.
[Counsel]: All right. But is that an idea in the
back of your head which is likely to tip you
against the verdict for the plaintiffs because
they might have come here illegally at some
point in the past?
Prospective Juror Number 22: I don’t know.
[Counsel]: It might?
Prospective Juror Number 22: I guess.
(Emphasis added)
¶17 Although Prospective Juror Number 22 admitted she would
possibly be unable to be fair and impartial to the Romeros based on biases,
that prospective juror was successfully challenged for cause and removed
from consideration to sit on the jury. Moreover, Prospective Juror Number
6 was removed by a peremptory challenge by the Romeros lawyer. And,
after the trial jurors were selected and did not include Prospective Juror
Number 31, that juror was released from jury service. Because none of the
problematic prospective jurors were seated for the trial, and the Romeros
did not raise to the trial court, or otherwise identify, that the trial jurors
were somehow tainted and did not follow the jury instructions, there is no
showing of any prejudice. Accordingly, we find no reversible error
requiring a new trial.
C. Langston Objection
¶18 Finally, the Romeros argue the court abused its discretion by
“sustaining [Langston’s] objection to [a] question on cross-examination of
[Langston].” The parties disagree on whether the question was relevant.
“We review the trial court’s determination of relevance for an abuse of
discretion.” State v. Duncan, 216 Ariz. 260, 264, ¶ 13 (App. 2007).
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Decision of the Court
¶19 During Langston’s testimony, the following occurred:
[Counsel]: You’ve heard me explain to the jury that
you’re accepting responsibility?
[Langston]: Yes, I am.
[Counsel]: It was an accident, and you
understand that under the law, you’re held
responsible?
[Langston]: Yes, I do.
[Counsel]: And you’re okay with that, right?
[Langston]: Yes, sir.
....
[Romeros’ counsel on cross]: You ran your
vehicle into the rear of Consuelo’s vehicle,
correct?
[Langston] Yes, sir.
[Romeros’counsel]: And you did so carelessly,
correct?
[Langston]: Yes.
....
[Romeros’ counsel]: Now, you are sorry for the
collision?
[Langston]: Very much so.
[Romeros’ counsel]: And you would want
Consuelo Romero to be compensated fully and
completely for all the harms and losses that you
caused her in the collision?
[Langston’s Counsel]: Your Honor, I’m going to
object to the question. I think that is a question
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more directed, and within the province of the
jury, as to whether or not any compensation
should be awarded.
The Court: Sustained.
¶20 The question of whether Langston “want[ed] Consuelo
Romero to be compensated fully and completely for all the harms and
losses” caused by the collision was not relevant to issue of causation or
damages under Arizona Rule of Evidence 401, and were the issues the jury
had to resolve. What Langston may have wanted after admitting to causing
the accident did not make it more or less likely that the accident had a causal
connection to the injuries sustained by Mrs. Romero or the damages she
and her husband were seeking. As a result, we find no abuse of discretion.
CONCLUSION
¶21 Based on the foregoing, we affirm the denial of the motion for
new trial.
AMY M. WOOD • Clerk of the Court
FILED: AA
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