Kevin Wethherilt v. Patrick H. Moore

¶1 This lawsuit arises from a crash landing on January 28, 2011,

during the flight of an experimental kit aircraft—a RANS S-6ES—from

Sedona to Buckeye, Arizona. The plane was piloted by Kevin Wetherilt,

who was the only person onboard the plane at the time of the crash, and

owned by Patten Harvey (collectively, “Plaintiffs”). The aircraft’s elevator

control bracket assembly apparently became inoperative during flight,

severely limiting Wetherilt’s ability to maneuver and land the plane, and

Plaintiffs sought to show that the defendant, Patrick H. Moore—a licensed

airframe and power plant (“A&P”) mechanic, who had conducted annual

inspections of the aircraft, including most recently on November 15, 2010—

was the only person to have inspected or otherwise handled the hardware

of the elevator control system before the accident and had been negligent

in doing so. Plaintiffs, however, were unable to present direct evidence that

a defect in the elevator control system existed when Moore completed his

annual inspection, and at the conclusion of the trial in this matter, the jury

rendered a defense verdict. Plaintiffs appeal the jury’s verdict and the trial

court’s denial of their motion for a new trial, arguing that evidentiary errors

occurred during trial that require reversal. Finding no error necessitating a

new trial, we affirm.

FACTS AND PROCEDURAL HISTORY1

¶2 After the accident, Plaintiffs filed a complaint alleging

negligence, negligence per se, breach of contract, breach of implied

1 In general, we view the facts and inferences therefrom in the light

most favorable to affirming the verdict. See Paul Schoonover, Inc. v. Ram

Constr., Inc., 129 Ariz. 204, 205, 630 P.2d 27, 28 (1981).

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warranty of fitness, and breach of implied warranty of workmanship

against Moore and others.2

¶3 Before trial, the parties filed several motions involving the

aircraft’s “airworthiness certificate” issued by the Federal Aviation

Administration (“FAA”), and numerous motions for full or partial

summary judgment that the trial court mostly denied.3 The court’s pretrial

minute entries include the following rulings and analyses:

[T]he [National Transportation Safety Board (“NTSB”)] report

states that the probable cause of the accident is “[a]

disconnection of the elevator control linkage due to incorrect

installation or maintenance, which was due to the retaining

nut backing off the belt and allowing the bolt to fall out.”

. . . . Based on the NTSB report, there is a question of

fact as to the cause of the accident and if the cause was the

disconnection and whether the disconnection occurred as a

result of improper assembly or improper maintenance.

. . . .

There is a question of fact as to whether the control

linkage was secure when inspected by Defendant Patrick

Moore. The facts of the accident and the evidence secured at

the scene are evidence from which a jury could conclude that

Defendant failed to properly conduct the annual inspection,

2 In addition to Moore (and his wife), the First Amended Complaint

also named as defendants Edward Snyder and his wife, Patricia; the

Snyders’ business, Sport Planes Unlimited; and an employee of the Snyders,

Robert Tolbert. Plaintiffs alleged Snyder, Tolbert, and Sport Planes

Unlimited negligently built or fully assembled the aircraft before its sale to

Harvey in 2007. Snyder acknowledged that he or his business built the

major portion of the aircraft, but the Snyders sought bankruptcy protection,

and were eventually dismissed without prejudice from the lawsuit. This

appeal involves only Moore.

3 The trial court granted Plaintiffs’ motion for partial summary

judgment as to the affirmative defenses of quasi-estoppel, assumption of

the risk, and “airworthiness,” but noted that “Plaintiff[s] must still prove

that Defendant Patrick Moore was negligent and that his negligence was a

cause of the accident.”

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but are not conclusive as to any of Plaintiff’s claims.

Defendant Patrick Moore contends that he inspected the

aircraft and the cotter pins, nuts and bolts in the elevator and

contends that the control stick mechanism was in place and

secure. The case is rife with questions of fact.

. . . .

Defendants seek summary judgment on the theory that

the subject aircraft was not “airworthy” because the

airworthiness certificate Plaintiff obtained from [the] FAA

was obtained under the false pretense that Mr. Harvey was

the “builder[.]” Neither Plaintiffs nor Defendants, however,

are claiming that the cause of this crash was the alleged

falsified claim by Mr. Harvey in his “Eligibility Statement

Amateur–Built Aircraft” form submitted to the FAA that he

was the builder. Rather Defendants concede that the cause of

the crash was the failure of the “bolts, nuts, washers and

cotter pins that held the aircraft’s elevator control bracket

together” to stay assembled. That Mr. Harvey may have

submitted false information to the FAA about who built the aircraft

to obtain eligibility for experimental amateur built aircraft status

with the FAA for purposes of an airworthy determination may go to

[]his credibility, but not to the agreed upon cause of this accident.

. . . .

Defendants Moore seek summary judgment arguing

that there is no issue of material fact as to how the crash

occurred, and that Plaintiffs have no physical evidence that

Defendant Pat Moore caused the elevator control bracket

assembly to come apart. However, Plaintiffs’ burden of proof

is not proof with absolute certainty or even beyond a

reasonable doubt. Plaintiffs’ burden of proof is by a

preponderance of evidence. Although there is no direct

evidence that Defendant Moore caused the bracket assembly

to come apart, there is circumstantial evidence. Defendant

Moore, according to Plaintiffs, was the last person to have

inspected the aircraft. The crash occurred 24 flight hours after

the inspection. That circumstantial evidence is sufficient to

create a question of fact as to whether Defendant Moore was

negligent in his inspection and whether his negligence caused

the crash.

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. . . .

Defendants may bring out information about whether or not the

airplane can be certified as to its airworthiness for the purposes of

evaluating its market value.

(Emphasis added.) As the trial court’s pretrial rulings made clear, Moore

could broach the subject of the aircraft’s airworthiness certificate for the

purposes of impeaching Harvey and evaluating market value/damages,

but not as a causation defense.

¶4 At trial, Wetherilt testified he provided flying lessons to

others, including Harvey. According to Wetherilt, his log indicated that,

after the November 15, 2010 inspection, he used Harvey’s plane for flight

instruction on November 18, 19, and 30, and December 1, 7, 8, 9, 19, 20, and

21, 2010. During that time, he experienced no difficulty with the elevator

control system. The next time he flew the plane was slightly more than one

month later—on January 28, 2011.

¶5 Wetherilt had obtained permission from Harvey to use the

airplane to fly to Buckeye and attend a January 29 “fly-in” at an airstrip

south of Phoenix. On January 28, Wetherilt drove to Sedona—where

Harvey’s plane was kept—and inspected the plane, including its flight

control systems, finding no problems. His inspection included manually

moving the horizontal elevator panel, which felt normal.

¶6 After completing his pre-flight inspection, Wetherilt taxied to

the runway, conducted a pre-flight engine test, and began his flight toward

Buckeye. Approximately ten minutes into his flight, he reached 8,500 feet

and pushed the elevator stick forward to level off, but nothing happened.

He increased altitude and tried the co-pilot’s stick, without success, then

ripped off the console between the seats, exposing the elevator control rod.

He pushed the stick again and the control rod moved, but nothing else did,

indicating to him the elevator control system had come apart somewhere

else.

¶7 Knowing his cell phone worked better near Cottonwood, he

tried to turn in that direction, but that maneuver caused the plane to go into

a downward spiral, which he could not control. After losing approximately

1,000 feet of altitude, the plane leveled off on its own. Wetherilt texted a

friend who was an aircraft mechanic experienced with RANS aircraft, but

the friend’s suggestions provided no solution, and they concluded

Wetherilt could not get to the area of the plane in need of repair while the

plane was in flight.

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¶8 Wetherilt decided to continue to Buckeye, which had a long

runway and would not involve flying over a city or into a busy airport.

During the flight, Wetherilt could control the plane somewhat in making it

go up or down, but turns were next to impossible.

¶9 Approximately twelve miles outside his destination,

Wetherilt radioed the Buckeye airport.4 He contacted a Lufthansa Airlines

training plane occupied by three pilots, who informed him several planes

were in the landing pattern. Wetherilt explained he could not enter the

landing pattern, but needed to fly straight in, and asked that other planes

be kept away. The pilot of the training plane agreed to assist him and follow

him in.

¶10 As Wetherilt’s plane approached the runway—with an

altitude of approximately fifty feet—a sudden down-draft forced the

plane’s nose down. Wetherilt tried applying more power, but without

effect, and the plane hit the ground nose down while traveling

approximately one hundred miles per hour. The nose landing gear was

ripped off, and the plane skidded to a stop a few feet to the left of the

runway. As the plane came to rest, Wetherilt became aware of sparks,

smoke, and the smell of gasoline. He quickly crawled out of the plane, and

the three Lufthansa pilots helped him shut off electrical circuits and a

gasoline valve.

¶11 Wetherilt called Terry Brandt, a “flying guru” in the Buckeye

area, who advised Wetherilt to call the Scottsdale FSDO, the FAA agency to

be contacted in the event of an aircraft accident. Wetherilt made that call,

and FAA safety inspector Jeff Miller arrived at the Buckeye airport

approximately two hours later. Meanwhile, Brandt arrived approximately

thirty minutes after Wetherilt’s call. According to Wetherilt, other than

turning off the electrical circuits and the gasoline valve, neither he nor

anyone else touched or moved the plane until Miller’s arrival. The three

Lufthansa pilots and Brandt stayed with Wetherilt while awaiting Miller.

¶12 When Miller arrived, he spoke with Wetherilt, who informed

Miller that he had not been physically injured. Over the next two hours,

Miller—followed by Wetherilt—inspected the aircraft, taking pictures and

opening the fuselage, which exposed where the rod in the elevator control

4 The Buckeye airport, like the Sedona airport, is an uncontrolled

airport, meaning that it does not have a control tower.

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system was disconnected.5 The following day, Wetherilt called Harvey,

who was vacationing in Hawaii, to inform him of what had happened.6

¶13 Miller, the FAA investigator, testified by deposition

regarding his investigation. After arriving at the crash site, he interviewed

Wetherilt, who stated he was not physically injured. Miller prepared field

notes, which disclosed the bolt connecting the aft elevator push-pull control

tube to the control stick was missing and not to be found, and the bolt

connecting the forward push-pull tube to the control stick was ready to fall

out. These were AN drilled shank bolts,7 requiring a washer, castellated

nut, and cotter pin for safety; however, the hardware was all missing, and

Miller found neither the missing hardware nor any opening in the bottom

of the aircraft that would permit hardware from the elevator control system

to fall out of the plane’s fuselage.

¶14 Miller’s testimony differed from that of Wetherilt on

numerous points: For example, Wetherilt testified the Lufthansa pilots

remained at the scene; however, Miller testified Wetherilt was the only

witness to the accident present when he arrived. Wetherilt and Miller also

disagreed as to who cut the aircraft’s fuselage fabric and opened the

5 Wetherilt made a report for the FAA approximately one week after

the crash. His report described the elevator control bracket assembly

having come apart. Two of the three nuts had come off, one bolt was

completely out, and another had almost come out. None of the bolts had

cotter pins inserted in them. He had no knowledge about who caused the

elevator control system’s condition.

6 At trial, Harvey testified that after acquiring his plane, he hired

Moore to do annual inspections in 2008, 2009, and 2010. Harvey claimed he

“never saw a checklist,” but relied on Moore’s expertise as a mechanic to

perform these inspections competently and certify his plane as fit for flight.

Harvey also testified he had spent slightly more than $70,000 to purchase

the aircraft, and presumably wished to recover approximately that amount,

but conceded that the current value of the plane “as is” was approximately

$45,000.

7 AN, or “Army-Navy,” is a designation meaning the bolt is designed

and manufactured according to military specifications, and is the industry

standard for aircraft bolts. AN bolts are generally far superior to common

hardware bolts.

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underside of the plane to initially disclose the elevator control failing;

whether Brandt had found the missing bolt on the runway; and whether

Miller had even spoken with Brandt during his investigation.8

¶15 Miller did not further speak with Wetherilt after the day of

the accident, but interviewed Harvey and Moore. Harvey stated Moore

was the only person who had worked on the aircraft, but acknowledged he

also had a repairman’s certificate.9 Miller reviewed Moore’s aircraft

maintenance log books, including the engine and propeller log books, and

noted there was no indication Moore had disassembled the elevator control

bracket assembly. Miller could not recall in his deposition whether the

elevator control bracket assembly had received maintenance, although he

asserted most A&P mechanics “would look at” that. Although Moore

received a warning letter advising him to more fully describe his work in

his log books, Miller did not find anything indicating Moore was at fault.

¶16 As part of his defense, Moore sought to show Wetherilt,

Harvey, and other persons had access to the aircraft after he conducted the

annual inspection on November 15, 2010, and could have performed

maintenance on the aircraft and/or otherwise meddled with it by

disassembling the elevator control bracket system. Moore also testified

regarding his extensive experience as an A&P mechanic and licensed pilot,

8 In a supplemental disclosure statement, Wetherilt stated a bolt was

found by Brandt on the ground at the Buckeye airport the day of the crash

and shown to Wetherilt and Miller. Miller, however, testified he looked for

the missing hardware that day, but did not find it, and stated if someone

had presented hardware found on the runway believed to be from the

plane, he would have photographed the items and referenced them in his

report.

9 See 14 C.F.R. § 65.104. Under subsection (a)(2) of 14 C.F.R. § 65.104,

“[t]o be eligible for a repairman certificate (experimental aircraft builder),

an individual must . . . [b]e the primary builder of the aircraft to which the

privileges of the certificate are applicable.” At his April 16, 2013 deposition

in this case, Harvey testified he had not participated in assembling or

fabricating the aircraft, and had “not done anything on the airplane but

change the oil and help a guy change the spark plugs.” Harvey surrendered

his repairman’s and airworthiness certificates to the FAA shortly before his

deposition.

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noting that, for periods exceeding fifty years as a mechanic and pilot, he

had never had a violation.

¶17 Moore had performed annual inspections of Harvey’s aircraft

in 2008, 2009, and 2010, using a check sheet covering all areas to be

examined. In the 2008 inspection, the nuts, bolts, and cotter pins were

found to be properly secured on the elevator control bracket. Moore further

testified his November 15, 2010 inspection was carefully and properly

done10; the plane was safe for flight when he signed Harvey’s logbook; his

certification stopped at the point of signing the logbook and did not cover

changes after that time; if the cotter pins were not in place, and the nuts

worked their way off the bolts, causing one of the bolts to fall off the

elevator control assembly, the hardware should have been found on the

floor of the aircraft; pictures of the disconnected elevator control system

after the crash were inconsistent with the condition of that system as

observed by him on November 15, 2010; and the only explanation for the

disconnected system was that someone disassembled it after his annual

inspection. Moore did not touch Harvey’s plane between November 15,

2010, and January 28, 2011, with the exception of minor servicing events on

November 19, 2010 (when he reconnected the cylinder head temperature

device) and January 6, 2011 (when he replaced the tires).

¶18 After four days of trial, the jury returned a unanimous

defense verdict. The trial court entered a judgment in favor of Moore,

ordering Plaintiffs to pay costs and Harvey to pay attorneys’ fees. In a

minute entry filed January 9, 2015, the trial court summarily denied

Plaintiffs’ motion for a new trial.

¶19 We have jurisdiction over Plaintiffs’ appeal. See Ariz. Rev.

Stat. (“A.R.S.”) § 12-2101(A)(1), (5)(a) (2016).

ANALYSIS

I. Standard of Review

¶20 We will affirm the trial 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, 917 P.2d

222, 235 (1996); Brown v. U.S. Fid. & Guar. Co., 194 Ariz. 85, 88, ¶ 7, 977 P.2d

10 Moore testified he told Miller he did not recall the direction of the

cotter pins in the 2010 inspection; however, Miller’s field notes indicated

Moore said he remembered seeing the nuts on the bolts, but could not

remember seeing the cotter pins.

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807, 810 (App. 1998) (citing Gasiorowski v. Hose, 182 Ariz. 376, 382, 897 P.2d

678, 684 (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, 977 P.2d at 810. 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, 969 P.2d 649, 652 (1998).

II. Defense Counsel’s Alleged Misconduct and Airworthiness

¶21 As we have noted, before trial, the parties disputed whether

the circumstances surrounding the FAA’s issuance of the special

airworthiness certificate for Harvey’s aircraft could be used as a defense to

Plaintiffs’ claims.11 The trial court ruled the subject of the airworthiness

certificate could not be used for causation purposes, but could be used for

impeachment and damages purposes. As we discuss later, the record fully

supports the court’s pretrial rulings, and we find no abuse of discretion

regarding those rulings. See Gemstar, 185 Ariz. at 506, 917 P.2d at 235.

11 An airworthiness certificate for a plane such as Harvey’s requires

compliance with the provisions of 14 C.F.R. § 21.191, which addresses

experimental certificates and provides in part as follows:

Experimental certificates are issued for the following

purposes:

(a) Research and development. Testing new aircraft design

concepts, new aircraft equipment, new aircraft installations,

new aircraft operating techniques, or new uses for aircraft.

. . . .

(g) Operating amateur-built aircraft. Operating an aircraft the

major portion of which has been fabricated and assembled by persons

who undertook the construction project solely for their own

education or recreation.

(Emphasis added.) Harvey’s certificate of eligibility, signed and submitted

by him to the FAA, stated he had complied with the requirement of

subsection (g) by fabricating and assembling the major portion of his

aircraft. As Harvey conceded, however, although he had fully paid for the

building of the plane, Snyder/Sport Planes Unlimited fabricated and

assembled the plane before its delivery to Harvey.

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¶22 Plaintiffs argue Moore’s defense counsel committed

misconduct throughout his opening statement, questioning of witnesses,

and closing argument. A verdict or judgment may be vacated and a new

trial granted if misconduct of the prevailing party materially affected the

rights of the aggrieved party. Ariz. R. Civ. P. 59(a)(2). “Misconduct

materially affects an aggrieved party’s rights where it appears probable the

misconduct actually influenced the verdict.” Maxwell v. Aetna Life Ins. Co.,

143 Ariz. 205, 215, 693 P.2d 348, 358 (App. 1984). “The introduction of

evidence or pursuit of a line of argument which has no bearing on the

alleged wrong but which serves only to prejudice the jury is grounds for

reversal.” Elledge v. Brand, 102 Ariz. 338, 339, 429 P.2d 450, 451 (1967)

(citations omitted). Statements made to a jury not supported by facts or

reasonable inference that result in prejudice may also constitute reversible

misconduct. See, e.g., Grant v. Ariz. Pub. Serv. Co., 133 Ariz. 434, 450-51, 652

P.2d 507, 523-24 (1982); Sisk v. Ball, 91 Ariz. 239, 245, 371 P.2d 594, 598 (1962).

A. Alleged Misconduct in Opening Statement

¶23 Even assuming Plaintiffs fully preserved each of their

arguments through timely objections, we find no error requiring reversal.

Plaintiffs generally assert without elaboration that various comments made

by defense counsel in his opening statement were “inadmissible.” As a

plain assertion, we agree. The trial court addressed this issue in its

preliminary instructions when it cautioned the jury that the lawyers’

statements and arguments were not evidence: “It is important that you

distinguish in determining what the facts are between the testimony that

you hear under oath and what the lawyers say. Only the testimony is

evidence. What the lawyers say is not evidence.” The court reiterated this

instruction during trial. We presume the jury followed the court’s

instructions. See State v. LeBlanc, 186 Ariz. 437, 439, 924 P.2d 441, 443 (1996).

¶24 Plaintiffs also assert defense counsel attempted to use the

subject of airworthiness for causation purposes in his opening statement.

The portion of the record they cite reveals the following: At trial, defense

counsel began his opening statement by broaching the subject of

airworthiness and Harvey’s credibility. Plaintiffs’ counsel objected and,

outside the presence of the jury, argued that although the court had ruled

Moore could bring the subject of airworthiness in for damages or

impeachment purposes, the subject of airworthiness could not be used for

causation purposes. The trial court noted the objection, but denied it,

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concluding that, although defense counsel had come “pretty close,” counsel

had not yet “crossed the line.” We find no error in the court’s ruling.12

¶25 In his opening statement, defense counsel also stated that

“[f]or reasons we may get into in this trial, this particular aircraft no longer

has an airworthiness certificate.” (Emphasis added.) The court overruled

Plaintiffs’ unspecified objection to this statement, and Plaintiffs argue that

misconduct occurred because defense counsel knew the aircraft had a valid

airworthiness certificate at the time of the accident. Contrary to Plaintiffs’

suggestion, defense counsel’s statement was not improper or a

misstatement of the facts. We find no error.

¶26 Plaintiffs also argue defense counsel improperly suggested

Moore would only be liable to Plaintiffs if Moore took apart the elevator

control bracket. The court instructed the jury, however, that Moore could

be liable for negligence if he failed to “use reasonable care,” which “may

consist of action or inaction.” We presume the jury followed the court’s

instructions. See LeBlanc, 186 Ariz. at 439, 924 P.2d at 443. Although

Plaintiffs suggest other statements of defense counsel may have constituted

misconduct, their contentions are not fully developed, with supporting

reasons and citation to the record, see ARCAP 13(a)(7)(A)-(B), and in our

review of the record, we have found no misconduct requiring reversal

related to the remainder of defense counsel’s opening statement.

12 Plaintiffs further argue the trial court should have presented the jury

with “a limiting or curative instruction on the relationship between the

Airworthiness Certificate and the other elements of Plaintiffs’ claims.”

Although Plaintiffs did file an “Objection to Defendants’ Supplemental

Proposed Jury Instructions and Motion for Curative Instructions” after

defense counsel’s opening statement, they do not in their opening brief cite

to a portion of the record where they proposed a specific instruction.

Moreover, when presented with the court’s proposed final instructions and

specifically asked whether there was “anything you want to put on the

record about the instructions that were given or not given or modified,”

Plaintiffs’ counsel stated that, other than an instruction regarding insurance

(which we later address), he was “fine with it.” Accordingly, to the extent

Plaintiffs challenge the trial court’s final instructions, including the lack of

a limiting or curative instruction, they have waived that argument.

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B. Other Alleged Misconduct

¶27 Plaintiffs’ primary argument supporting a finding of

misconduct is that defense counsel unfairly sought to impeach Harvey’s

credibility by improperly and repetitiously calling the jury’s attention to

circumstances surrounding the FAA’s issuance of the airworthiness

certificate for Harvey’s aircraft, as well as Harvey’s voluntary

relinquishment of the airworthiness certificate to the FAA more than two

years after the accident.13 Plaintiffs maintain defense counsel committed

misconduct in questioning several witnesses about the airworthiness

certificate, including asking Harvey about his lack of involvement in

building the aircraft and prior “misrepresentation” to the FAA that he was

the aircraft’s “builder”14; questioning Plaintiffs’ expert witness, Charles

Hicks, about the requirements for an airworthiness certificate and Harvey’s

alleged misrepresentation to the FAA; questioning Gary Towner, a retired

FAA safety inspector and designated airworthiness representative who had

previously certified Harvey’s aircraft for airworthiness15; and questioning

James Woods, a retired FAA inspector and investigator, who acted as an

expert witness pertaining to experimental aircraft for Moore.

¶28 In this case, even though his aircraft had a valid airworthiness

certificate issued by the FAA before the crash—and had therefore in his

13 Throughout the trial, Plaintiffs’ counsel made no objection on the

basis that any evidence was cumulative and only once objected on the basis

that a question had been “asked and answered,” during defense counsel’s

cross-examination of Harvey. The court overruled that single objection.

14 Plaintiffs argue that Harvey’s statements contained “no

inconsistencies” and “there was nothing for the Defense to impeach”

because “Harvey consistently testified that he did indeed sign as the

‘builder’ on relevant forms and that he did not assist in the building of the

aircraft.”

15 Towner, who accepted Harvey’s certificate of eligibility at “face

value” and issued the airworthiness certificate, testified the requirement in

14 C.F.R. § 21.191(g) that an amateur builder of an experimental aircraft

participate in more than fifty percent of the plane’s fabrication and

assembly had remained unchanged from at least 2003 through the time

Harvey sought the airworthiness certification. Towner stated that, had he

known Harvey had no participation in building the aircraft, he would not

have certified it.

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words been “exonerated” by the FAA—Harvey’s veracity in obtaining the

certificate by representing he was the “builder” who had fabricated and

assembled the aircraft—and thus his credibility—could be fairly explored

and attacked because he provided verification inconsistent with his

subsequent representations and testimony. See Ariz. R. Evid. 607. Further,

the documents referred to by defense counsel on cross-examination of

Harvey had been admitted upon stipulation of counsel at the onset of trial,

and could be fairly “inquired into” as “probative of [Harvey’s] character for

truthfulness or untruthfulness.” Ariz. R. Evid. 608(b)(1). Additionally, the

witnesses questioned by defense counsel testified that an aircraft cannot be

operated without a valid airworthiness certificate, and whether Harvey

could qualify as the “builder” was legally significant to the issue of whether

his aircraft could be repaired, recertified with a valid airworthiness

certificate, and then sold. Defense counsel properly solicited information

about whether the aircraft could be recertified as to its airworthiness for the

purpose of evaluating its market value and Harvey’s claim for damages.16

¶29 Moreover, we reject Plaintiffs’ reliance on one juror’s question

to Harvey concerning his understanding of the meaning of the term

“builder” as evidence that defense counsel’s questioning unfairly

influenced the jury’s verdict. Defense counsel objected to the question,

arguing that 14 C.F.R. § 21.191(g) “says that a builder means major portion

must fabricate or assemble a major portion of the aircraft.” The following

colloquy occurred:

THE COURT: Well, the – you’ve raised this issue to his

credibility, and this goes directly to whether it should effect

[sic] his credibility or not.

[PLAINTIFFS’ COUNSEL]: I agree, Your Honor.

THE COURT: Doesn’t go to whether it’s airworthy or not. It

goes to his credibility.

[PLAINTIFFS’ COUNSEL]: That’s exactly right.

Shortly thereafter, the court addressed Harvey as follows: “The next

question deals with the line of questioning about whether you built the

plane or not and what you signed. Did you misinterpret what, quote,

16 As the trial court noted in its October 15, 2014 minute entry awarding

Moore attorneys’ fees, costs, and Rule 68(g) sanctions, “The issue of

airworthiness was relevant to the value of the aircraft and therefore central

to the amount of Harvey’s damages.”

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builder of plane, close quote, means; that is, whether it was physical

building versus financing and ordering the plane to be built?” Harvey

answered, “It never occurred to me in the whole circumstances whether this

airplane was illegal or not. I was not going to put $70,000 in an illegal

airplane.”

¶30 Plaintiffs’ counsel’s affirmation that the juror’s question went

to Harvey’s credibility, and Harvey’s answer—which addressed his

credibility and the plane’s market value—provide no indication that

defense counsel’s prior questioning unfairly influenced the jury’s verdict

by arousing passion or prejudice on the part of the jury.

III. Airworthiness

¶31 Plaintiffs argue that, even if defense counsel’s conduct did not

rise to the level of reversible misconduct, the trial court’s pretrial rulings

allowing testimony on the subject of the airworthiness certificate for

damages and impeachment purposes nonetheless constituted error because

they had the effect of allowing a debate on airworthiness despite the fact

that the FAA has exclusive authority to determine whether an aircraft is fit

for flight and has certified the aircraft airworthy.

¶32 The trial court did not err in allowing Moore to present

evidence of circumstances that might diminish the value of Harvey’s claim.

Harvey himself acknowledged an experimental aircraft cannot be flown

without an airworthiness certificate, and Plaintiffs’ witness, Charles Hicks,

affirmed that if an experimental aircraft is sold without such a certificate,

its value would be diminished.

¶33 Moore’s witness, Towner, the designated airworthiness

representative, testified that for a plane such as Harvey’s to receive an

airworthiness certificate, there must be both a certification by a qualified

person that the plane has been inspected for safe operation and an affidavit

from the amateur builder that he or she fabricated and assembled at least

fifty-one percent of the experimental aircraft. Because experimental aircraft

are not subject to all the maintenance regulations that apply to other

aircraft, the designated airworthiness representative prepares a list of

operating limitations that apply to the plane being certified, and annual

inspections are required. The annual inspections are to be done by a

certified airframe mechanic or a person possessing a repairman’s certificate.

The only person eligible to receive a repairman’s certificate would be the

plane’s builder.

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¶34 Moore’s other witness, Woods, explained why major

participation by the builder in the fabrication and assembly of a self-built

experimental plane is required when he testified that a repairman’s

certificate is “a certificate that allows the builder of the amateur-built

aircraft to perform maintenance on his own aircraft. The presumption

being he built it, who better to know how to work on it.” Woods also

testified that the requirement of requiring a “major portion builder” for

certification had not changed, and the FAA was required to follow the

applicable regulations. Additionally, if an airworthiness certificate is

surrendered, it can be recertified by the owner; however, if the owner had

not actually done the major portion of the original fabrication and

assembly, the owner would have to disassemble the aircraft, reconstruct it,

and submit an eligibility statement affirming the owner had done not less

than fifty-one percent of the fabrication and assembly. Further, if the

aircraft were sold in its un-airworthy condition, its market value would

presumably be impacted because the buyer would have to go through the

same process of disassembling the plane, reconstructing it, and applying

for an airworthiness certificate by affirming he had built at least fifty-one

percent of the aircraft, or seek to go through a different classification,

designated as “experimental airshow, experimental exhibition.”

¶35 The preceding testimony on airworthiness was at least

marginally relevant in that it directly impacted considerations of the plane’s

market value and Harvey’s damages claim. We find no abuse of discretion

regarding the trial court’s decision to allow testimony regarding the subject

of airworthiness as related to Harvey’s damages. See Gemstar, 185 Ariz. at

506, 917 P.2d at 235.

IV. The Scope of James Woods’ Testimony

¶36 Plaintiffs assert that Woods testified regarding a multitude of

topics outside the scope of Moore’s Rule 26.1 disclosure statement—and

presumably Woods’ scope of expertise—including the possible causes of

the accident, the steps to recertify Harvey’s aircraft, and the impact of

certification on the value of the aircraft.

¶37 A summary of Woods’ testimony reveals the following:

Woods is a retired FAA principal maintenance inspector for airworthiness.

His responsibilities included oversight of the aircraft maintenance industry;

certification of repair facilities, mechanics, and aircraft; aviation safety

inspections; and accident investigation. His experience included

experimental aircraft. He has known Moore for approximately fourteen

years, and verified Moore had no violations as an A&P mechanic.

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¶38 Woods conducted over thirty aircraft accident investigations.

While with the FAA, he was trained in administrative law and regulations,

conducting accident investigations, and amateur-built certification. He also

conducted seminars on experimental aircraft and procedures for certifying

such planes. Woods explained that, in accident investigations, FAA

investigators look for witnesses, obtain statements, look for evidence from

traffic control tower tapes and people who took pictures or videos, and

review any text messages a pilot may have sent requesting help. If an

emergency is declared, a tape will be kept until it is determined whether

the investigating office wants it.

¶39 Woods testified that, after the crash, he personally inspected

Harvey’s plane and various documents related to the crash, including

Miller’s field notes and report. Before the next question, however,

Plaintiffs’ counsel objected “[b]ased on that line of questioning as far as

disclosure” because Woods “was never disclosed as an accident

investigation expert.” Defense counsel countered that Plaintiffs’ counsel’s

allegation was “not true,” and after a brief discussion, Plaintiffs’ counsel

withdrew the objection, stating, “I’ll just cross him on it.”

¶40 Woods continued to testify, stating he agreed with the

probable cause determination of the NTSB. He then testified that, if an

experimental aircraft’s airworthiness certificate were surrendered,

rescinded, or revoked, the aircraft could still be recertified, and he

explained the need and process for doing so. He also stated that, in his

opinion, Harvey’s airworthiness certificate should not be considered valid

because Harvey had “misrepresented his involvement in the building of the

aircraft when he submitted the original paperwork.” Plaintiffs’ counsel did

not object to this testimony.

¶41 Based on crash site photos, Woods concluded it did not

appear the collapsing of the nose gear caused the bottom of the fuselage to

burst open. The opening in the fuselage bottom, as shown by the

photographs, had an even line, consistent with being cut, as opposed to the

jagged, uneven line of a tear that would have been made when the crash

occurred. Further, if the crash had caused the fuselage to burst, followed

by the plane sliding off the runway and into the dirt, one would expect to

find dirt and debris in the fuselage.

¶42 Plaintiffs’ counsel again objected on the basis that Woods had

not been disclosed as an accident reconstruction expert. After another

discussion, in which the parties disagreed whether the subject had been

broached and fully explored during Woods’ deposition and whether the

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defense’s disclosure statement had encompassed Woods “testifying as an

accident investigation expert,” the trial court sustained the objection.

¶43 Woods then testified without objection about the general

impact of certification on the market value of the aircraft. He also testified

that his review of the maintenance logs did not indicate that Moore’s annual

inspections had been deficient or that Moore had ever disassembled the

elevator control bracket assembly. Woods also stated that his on-site

inspection of the aircraft’s elevator control bracket system did not reveal

significant wear.

¶44 During cross-examination, Plaintiffs’ counsel inquired about

Woods’ training and experience in accident investigation and his

evaluation of Miller’s field notes and the cause of the accident, leading to

the court ruling the door had been opened for Woods to testify regarding

accident investigation. During further cross-examination, Plaintiffs’

counsel questioned Woods about the accident investigation.

¶45 On redirect examination, Woods stated that if the elevator

control system’s hardware had simply fallen off, one would expect to find

it in the fuselage. He also testified that, from his experience as a pilot, a preflight

inspection would typically involve manually moving the elevator,

and observing whether the control column moves. A pilot would also pull

the control column and observe whether the elevator responds properly.

An elevator control bracket disassembled as this one was would probably

be detected in the pre-flight inspection. He further affirmed that, if there

were no problem with the elevator assembly and the landing were simply

botched, an inspector would expect to find the hardware still intact, and if

Moore had correctly observed the nuts, bolts, washers, and cotter pins in

the elevator control system to be properly installed and secured during his

November 15, 2010 inspection, the only way for that system to appear as it

does in the post-crash pictures is for someone to have removed those

components. With the correct tools, someone could remove those

components in approximately ten to fifteen minutes, although no one had

ever stepped forward and admitted pulling the cotter pin or otherwise

removing the hardware.

¶46 The court then sustained Plaintiffs’ counsel’s objection to

defense counsel’s hypothetical asking whether a pilot (presumably

Wetherilt) could remove the cotter pins and bolts from the elevator control

linkages in an effort to cover up a botched landing. We presume the jury

followed the court’s preliminary instructions to not consider questions or

testimony from which an objection has been sustained. See LeBlanc, 186

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Ariz. at 439, 924 P.2d at 443. In response to jury questions, Woods testified

that sometimes parts cannot be found after a crash, such as those with a fire,

or a mid-air disintegration, but when the entire plane comes to the scene of

the impact, he has never been unable to find the hardware.

¶47 We find no error requiring reversal. Our review of the

transcript containing Woods’ testimony leads us to conclude the

complained-of testimony was either cumulative to other testimony, was unobjected

to, or the door was opened by Plaintiffs’ counsel on crossexamination.

Further, Plaintiffs do not demonstrate that Woods’ testimony

fell outside the scope of his expertise or that they were unfairly surprised

or prejudiced by his testimony.17 Moreover, to the extent Plaintiffs simply

challenge Woods’ credibility, it was within the jury’s province to determine

his credibility. See Logerquist v. McVey, 196 Ariz. 470, 488, ¶ 52, 1 P.3d 113,

131 (2000). The trial court did not abuse its discretion.

V. Moore’s Mention of Insurance

¶48 Plaintiffs argue reversible error occurred when Moore

mentioned insurance, a statement they contend was intentionally

misleading and prejudicial because it indicated to the jury that Harvey’s

plane was insured when it was not.

¶49 “Evidence that a person was or was not insured against

liability is not admissible to prove whether the person acted negligently or

otherwise wrongfully.” Ariz. R. Evid. 411.18 The reason behind the

prohibition is that admitting evidence of a defendant’s liability insurance

creates an unacceptable risk that the jury, either in finding liability or in

determining the amount of the award to make, will be influenced by the

fact that an insurance policy is available to pay any award made. See

generally Muehlebach v. Mercer Mortuary & Chapel, Inc., 93 Ariz. 60, 62, 378

P.2d 741, 742 (1963). However, the mere mention of insurance will not

require declaration of a mistrial or a new trial, unless prejudice resulting

17 In his 8th Supplemental Rule 26.1 Disclosure Statement, Moore

disclosed that Woods would “testify about all issues involved in this case,”

and all issues testified by Woods were explored in Woods’ deposition,

including the possible reasons for the accident, which were explored

extensively.

18 The court, however, “may admit this evidence for another purpose,

such as proving a witness’s bias or prejudice or proving agency, ownership,

or control.” Ariz. R. Evid. 411.

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from it is shown. Id. at 64, 378 P.2d at 743; accord Michael v. Cole, 122 Ariz.

450, 452, 595 P.2d 995, 997 (1979); Sheppard v. Crow-Barker Paul No. 1 Ltd.

P’ship, 192 Ariz. 539, 547, ¶ 43, 968 P.2d 612, 620 (App. 1998).

¶50 In this case, the issue of insurance was first mentioned to the

jury on the first day of trial by Wetherilt. In discussing the training he

provided Harvey for the aircraft, Wetherilt stated, “Usually for most people

that are stepping down from private pilot, they have a requirement of five

or six hours with an instructor in order to qualify for the insurance for the

plane.“ Harvey testified on the second and third days of trial, and at the

conclusion of his testimony, a juror submitted a question asking why

Harvey apparently did not have aircraft insurance. The court did not ask

the question, but instructed the jury as follows:

There was another question about whether there was

aircraft insurance. And actually I was just going through our

final jury instructions. One of the instructions I’m going to

give you at the end of the case is that in reaching your verdict

you should not consider or discuss whether any party was or

was not covered by insurance. Whether any party had

insurance or didn’t have insurance is not relevant to the facts

that you have to determine in this case. So it’s a question that

doesn’t come up in these kinds of cases, insurance.

¶51 On the fourth and final day of trial, insurance was mentioned

again—this time by Moore. When asked on direct examination whether he

had an opportunity to see Harvey’s plane after the crash, Moore affirmed

he had. When asked “how that came about,” Moore responded as follows:

Mr. Harvey called me up and said the insurance

company was starting to get concerned about the airplane out

uncovered and he had to get it back up to Sedona. And I told

him I’ll go down with a buddy of mine. He said he had a

trailer but he didn’t have a truck. I said I got a buddy and I

got a buddy with a truck. So we went down and picked it up.

We folded the wings back and tied everything down, put it

on Mr. Patten—Mr. Harvey’s trailer and we pulled it back up.

¶52 Plaintiffs’ counsel objected, and after approaching the bench,

stated outside the presence of the jury, “I know he did it inadvertently, but

he mentioned insurance.” Counsel for Moore avowed, “I told him please

don’t mention it.” The court began to state it would “tell the jury,” and

Plaintiffs’ counsel interjected, “I understand. I understand. I’m giving you

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a heads up. I want to let you know.” Plaintiffs’ counsel did not move to

strike the testimony.

¶53 Later, before the trial court read final instructions to the jury,

Plaintiffs’ counsel again brought the issue of insurance to the court’s

attention, stating in part, “I’m not saying it’s malicious. I’m not saying it

was intentional. I think it was inadvertent. But it still has the same effect[.]”

Plaintiffs’ counsel then requested “a curative instruction that Mr. Harvey

did not have insurance on [the airplane], because he didn’t.” The trial court

denied the request “because we’re giving the standard instruction that they

should not consider at all insurance, either party.” The court later

instructed the jury with regard to insurance as follows:

I told you this earlier but it’s important to repeat. In

reaching your verdict you should not consider or discuss

whether any party was or was not covered by insurance. You

need to determine the facts of the case regarding liability and

damages and whether any party had or did not have

insurance has no bearing on your decisions on those issues.

The subject of insurance was not further mentioned at trial.

¶54 Plaintiffs argue that Moore’s mention of insurance was

inaccurate because it conflicts with Harvey’s declaration filed in support of

his motion for new trial that the reason he wanted to move the airplane to

Sedona was due to concern that the airplane might be broken into or

vandalized, and that a conversation with Moore regarding insurance never

occurred. Plaintiffs maintain Moore’s mention of insurance misled jurors

to believe the airplane was insured when, in truth, it was only insured while

on the ground and not in relation to flight or the accident.

¶55 No reversible error resulted from the inadvertent mention of

insurance by Moore. In this case, the insurance mentioned was apparently

Harvey’s, not Moore’s, and the context of the testimony by Moore suggests

the insurance involved was not liability insurance.19 Moreover, Plaintiffs’

19 See Ariz. R. Evid. 411. Even assuming the language of Rule 411

applies to prohibit Moore from testifying about Harvey’s insurance, “Rule

411 specifically applies to ‘insurance against liability,’ and does not mention

[property or other] insurance.” Cervantes v. Rijlaarsdam, 190 Ariz. 396, 398,

949 P.2d 56, 58 (App. 1997). Moreover, even when mentioned in the context

of liability insurance, the mere mention of insurance is not necessarily

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arguments ignore the context of the statement made by Moore and

overstate Moore’s testimony in saying Moore “claimed the plane was

insured.” Moore only related what he believed Harvey said to him, and the

jury had ample opportunity to assess Moore’s credibility. See, e.g.,

Logerquist, 196 Ariz. at 488, ¶ 52, 1 P.3d at 131. Additionally, Plaintiffs’ trial

counsel, being present and observing the questions and answers, is the

more reliable source for assessing whether Moore’s mention of insurance

was inaccurate or made with a bad intention. Most importantly, the trial

court adequately and correctly addressed the inadvertent mention of

insurance in its instructions to the jury. We presume the jury followed the

instructions given it. See LeBlanc, 186 Ariz. at 439, 924 P.2d at 443. On this

record, Plaintiffs have shown no prejudice.

VI. Denial of Plaintiffs’ Motion for New Trial

¶56 Plaintiffs claim the trial court abused its discretion in denying

their motion for new trial because, based on Plaintiffs’ previous claims of

error, the verdict must have been the result of passion or prejudice.

¶57 We review the denial of a motion for new trial for an abuse of

discretion. Larsen v. Decker, 196 Ariz. 239, 244, ¶ 27, 995 P.2d 281, 286 (App.

2000). If it appears clear the jury was actuated by prejudice or passion, its

verdict may not stand. Mayo v. Ephrom, 84 Ariz. 169, 174, 325 P.2d 814, 817

(1958) (citation omitted). Nevertheless, “[c]ourts are not free to reweigh the

evidence and set aside the jury verdict merely because the jury could have

drawn different inferences or conclusions or because judges feel that other

results are more reasonable.” Hutcherson v. City of Phoenix, 192 Ariz. 51, 56,

¶ 27, 961 P.2d 449, 454 (1998) (quoting Tennant v. Peoria & Pekin Union Ry.

Co., 321 U.S. 29, 35 (1944)). 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.” Id. at 53, ¶ 12, 961 P.2d at 451 (quoting Reeves v. Markle, 119 Ariz.

159, 163, 579 P.2d 1382, 1386 (1978)).

¶58 After thoroughly reviewing the applicable record, we find no

abuse of the trial court’s discretion in denying a new trial. The trial court,

having observed first-hand the witnesses and evidence presented, was best

qualified to determine whether a new trial was warranted on the basis the

jury acted out of passion or prejudice. On this record, Plaintiffs’ generalized

grounds for a mistrial, and we will not presume prejudice from the

improper admission of insurance-related evidence. Id.

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claim that the jury’s verdict resulted from passion or prejudice is

unsupported, and we have found no errors requiring reversal of the verdict.

VII. Attorneys’ Fees on Appeal

¶59 Noting that this case arises in part out of a contract claim,

Moore requests an award of costs and attorneys’ fees incurred upon appeal

pursuant to A.R.S. § 12-341.01(A) (2016). In our discretion, we decline to

award attorneys’ fees. We do, however, award an amount of taxable costs

to Moore contingent upon his compliance with Rule 21, ARCAP.

¶60 The trial court’s judgment and denial of Plaintiffs’ motion for

new trial are affirmed.