Opinion
No. 1 CA-CV 10-0872
06-19-2012
ALBERT PELLEGRINI and JANIS PELLEGRINI, husband and wife, Plaintiffs/Appellants/Cross-Appellees, v. L.A. FITNESS SPORTS CLUB, LLC, an Arizona limited liability company; L.A. FITNESS INTERNATIONAL, LLC, a foreign limited liability company, Defendants/Appellees/ Cross-Appellants, and BRUNSWICK CORP., a foreign corporation, Defendant/Appellee.
Law Office of Scott E. Boehm, P.C. Scott E. Boehm Goldberg & Osborne John E. Osborne William C. Bacon Maria del Pilar Mendoza Kristin Jennifer Schriner Attorneys for Plaintiffs/Appellants/Cross-Appellees Pellegrini Renaud Cook Drury Mesaros, PA Steven G. Mesaros William Sowders Kevin R. Myer John A. Klecan William W. Drury, Jr. Attorneys for Defendants/Appellees/Cross-Appellants L.A. Fitness Jennings, Strouss & Salmon, P.L.C. Garrett J. Olexa John J. Egbert Michael J. O'Connor K&L Gates LLP M. David Short Desiree Moore Co-counsel for Defendant/Appellee Brunswick Corporation
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure)
Appeal from the Superior Court in Maricopa County
Cause No. CV2008-002245
The Honorable Edward O. Burke, Retired Judge
AFFIRMED
Law Office of Scott E. Boehm, P.C.
By Scott E. Boehm
And
Phoenix
Goldberg & Osborne
By John E. Osborne
William C. Bacon
Maria del Pilar Mendoza
Kristin Jennifer Schriner
Attorneys for Plaintiffs/Appellants/Cross-Appellees Pellegrini
Tucson
Renaud Cook Drury Mesaros, PA
By Steven G. Mesaros
William Sowders
Kevin R. Myer
John A. Klecan
William W. Drury, Jr.
Attorneys for Defendants/Appellees/Cross-Appellants L.A. Fitness
Phoenix
Jennings, Strouss & Salmon, P.L.C.
By Garrett J. Olexa
John J. Egbert
Michael J. O'Connor
And
Phoenix
K&L Gates LLP
By M. David Short
Desiree Moore
Co-counsel for Defendant/Appellee Brunswick Corporation
Chicago
SWANN, Judge ¶1 Albert Pellegrini was injured at an L.A. Fitness sports club while using a back-extension machine manufactured by Brunswick. Pellegrini and his wife Janis sued both companies. After a trial lasting sixteen days, the jury returned a verdict for the Defendants. On appeal, the Pellegrinis raise twelve issues. We find that none of the issues raised warrant a reversal of judgments in favor of the Defendants, and we therefore affirm. In a cross-appeal L.A. Fitness challenges the propriety of the court's award of attorney's fees to the Pellegrinis in connection with their claim that they never received L.A. Fitness's offer of judgment in the mail. We also affirm that award.
The Pellegrinis sued L.A. Fitness Sports Club, LLC, and L.A. Fitness International, LLC; we refer to both simply as "L.A. Fitness." They also sued Brunswick Corp., whom the Pellegrinis refer to in their briefs as "Life Fitness," which is a subdivision of Brunswick Corporation. We refer to this party as "Brunswick" in our decision. We refer to L.A. Fitness and Brunswick together as "the Defendants."
FACTS AND PROCEDURAL HISTORY
¶2 Pellegrini became a member of L.A. Fitness when his wife bought him a membership in December 2003. Pellegrini's wife signed an agreement in which the "member assumes full responsibility" for risks associated with "L.A. Fitness's facilities, services, equipment or premises." Pellegrini exercised at L.A. Fitness's Peoria facility for several years without incident. But while he was exercising in December 2007, Pellegrini was injured on the ST25 Back-Extension machine ("the ST25"). ¶3 The ST25 is a weight-lifting machine designed to strengthen the lower back muscles. A person using the ST25 sits on a seat, his feet rest on footplates, his toes go under a toe bar, and a retractable seatbelt is available to be fastened around his waist. His back presses against a roller pad aligned with his shoulder blades. That roller pad is connected to a pivot by means of a lever called a "roller arm" (it is also called a "kicker arm" or "work arm"), so that when the user's back pushes the roller pad, the roller arm rotates downward on the pivot. The pivot moves an oval cam and a cable, thereby lifting and lowering a stack of weights. ¶4 Many parts of the ST25 can be adjusted by the user. The user can select how much weight to lift, up to 300 pounds. The user can adjust the position of the roller pad against his back. The user can also adjust the height of the footplates to ensure comfortable use of the machine. And -- importantly for this case -- the user can determine the machine's range of motion by adjusting the starting and stopping points of the roller arm. The user sets the starting point by moving a pin (sometimes called a "tulip" pin because of its bulb-like handle) into one of six numbered holes. If the pin is in hole number "1," the user starts in a sitting position; if the pin is in hole number "6," he starts the exercise reclined. The user can also set the stopping position by adjusting another pin into one of seven holes, labeled "A" through "G." ¶5 The starting and stopping mechanism of the ST25 involves two plates: the kicker arm plate and a slotted pinning plate. The kicker arm plate is held against the slotted pinning plate by a collar; the collar is attached to a shaft by a single set screw. The kicker arm plate rotates around the shaft as the user moves the roller arm downward. The starting- and stopping-position pins are equipped with springs, which push the pins toward the slotted pinning plate. The user adjusts the pins by pulling on them, moving them, and letting the springs' pressure reinsert the pins. When the starting-position pin rests within one of the holes in the slotted pinning plate, the shaft is able to turn the cam, pull the cable, and lift the weights. But if the starting-position pin does not rest within one of those holes, the roller arm and kicker plate are unable to move the weights. And without resistance from the weights, the roller pad and roller arm can fall backward. ¶6 Pellegrini's accident on the ST25 occurred on December 19, 2007. While exercising at L.A. Fitness's Peoria facility, Pellegrini worked out for approximately 50 minutes on other equipment before moving to the ST25, which he had used several times a week for approximately three years. According to Pellegrini, he adjusted the stop motion of the machine; he sat down and placed his feet on the rests, with his toes under the bar; and he buckled the seatbelt. He adjusted the weight stack to 210 or 225 pounds and then did eight repetitions of the exercise without any difficulty (he was planning on completing fifteen). On the ninth repetition, something happened to the roller arm and it collapsed. Pellegrini fell off of the ST25 and hit the floor, landing on the top of his head. ¶7 Another member -- Lise Galletley -- was working out near Pellegrini and heard "a loud crash and then a yell." She went to Pellegrini, who was lying behind the ST25, and then asked the receptionist to call 911 after Pellegrini stated he needed help. Galletley later testified that when she went over to help Pellegrini, the roller pad was "in approximately the 3:00 o'clock position." The three o'clock position put the roller pad "slightly below the seat," or roughly parallel to the floor. ¶8 After Pellegrini was taken to the hospital, Curtis Bridgeman, an equipment technician for L.A. Fitness, inspected the ST25. Bridgeman's duties included inspecting the machine weekly, and he had inspected it just six days before Pellegrini's accident. Bridgeman testified that when he inspected the ST25 shortly after the accident, the roller arm was in the three o'clock position. According to him, the starting-position pin was resting in the slotted pinning plate, and there was no gap between that plate and the kicker arm plate. When Bridgeman tried to use the machine, he found that everything on it worked properly. To ensure that no one else could use the ST25 before it was inspected further, Bridgeman placed out-of-order signs on it and lowered the roller arm down to its frame. ¶9 On December 23, Bridgeman's supervisor, Dennis Griffin, inspected the ST25. Griffin used the machine and found that it worked as it should. He found that the starting-position pin functioned properly. He saw no significant gap between the kicker arm plate and the slotted pinning plate. After photographing the machine and its components, Griffin partially disassembled the starting and stopping mechanism. He found no looseness in the set screw that secures the collar holding the kicker arm plate in place. Griffin testified that he was able to loosen the screw only by forcefully using an Allen wrench. Griffin reassembled the machine after completing his inspection. ¶10 The technician Bridgeman also testified that he had replaced the roller arm in 2006. He admitted that he had installed the roller arm incorrectly, but did not realize that it had been installed improperly until the machine was disassembled by others after the accident. He described the roller arm as a part that can "be put on interchangeably," but admitted that the design does not call for the roller arm to be "reverse oriented," which is how he had installed it. Bridgeman testified that, despite the incorrect assembly, the machine had been functioning for 14 months and had been used by L.A. Fitness members throughout that time without complaint. ¶11 On January 29, 2008, the Pellegrinis filed suit against L.A. Fitness for negligence and breach of warranty. On February 28, the Pellegrinis amended their complaint to include Brunswick, the manufacturer of the ST25. On April 1, 2009, the Pellegrinis disclosed the initial report of their liability expert, a weight-machine designer and researcher named Glen Foreman. The Pellegrinis admit in their opening brief that Foreman's "trial opinion" was that the accident "most probably occurred because the set screw became loose." The theory was that the loose screw allowed the collar to slide away from the plates; the two plates separated; the starting-position pin therefore disengaged from the slotted pinning plate; and "the roller arm crashed down to the frame." Foreman's initial report described how the starting-position pin could "skip past all of the remaining holes in the event of inadvertent disengagement from the start position" and how the roller pad would move backward until it "was stopped only by hitting the frame of the machine." ¶12 In its answering brief, L.A. Fitness admits that up until February 12, 2010, its expert, Dr. Bosch, agreed with Foreman that the probable cause of the accident was the collar's flawed design, which caused "total pin disengagement." During a deposition, Foreman explained that a "total disengagement" theory -- i.e., a theory of the accident in which the starting-position pin disengages from its original hole in the slotted pinning plate and does not reengage any of the other holes -- was more probable than not. Foreman also said that the orientation of the roller pad assembly would make no difference if total disengagement had occurred and "the roller pad would have rolled all the way down to the frame in any case." On February 3, 2010, L.A. Fitness moved for summary judgment, arguing that Foreman's opinion -- that the accident would have occurred regardless of how L.A. Fitness installed the roller arm -- destroyed Pellegrini's ability to prove causation against L.A. Fitness. ¶13 On February 12, Foreman issued a rebuttal opinion report. In it, he stated that although it was true that "the roller pad would rotate back until stopped by the frame of the machine regardless of whether the assembly was proper or improper," he could not determine "a specific mode of failure." He could not make that determination because "Dennis Griffin destroyed the evidence of the machine's condition, post-accident, by disassembling and reassembling [it]." Foreman went on to claim that certain tests "demonstrated that one possible scenario of failure was that of the pull-pin skipping past several slots and then re-engaging into another slot further along in the sequence of available slots." In that scenario, L.A. Fitness's improper installation of the roller arm "greatly increased the likelihood of the roller arm ending up in a position" that would allow Pellegrini to fall off of the ST25. Foreman concluded "that the improper assembly of the roller arm, more probably than not, contributed to the likelihood and severity of" Pellegrini's injury. ¶14 On February 22, 2010, Brunswick filed a motion asking the court to preclude Foreman's rebuttal report as untimely. On April 16, the court held a hearing on multiple motions, including the motion for summary judgment and the motion to preclude. During the hearing, L.A. Fitness argued that a section of Foreman's February 12 report, the section discussing L.A. Fitness's improper assembly of the roller pad and the degree of disengagement, "inserted new opinions not rebuttal opinions into this case." The Pellegrinis argued that L.A. Fitness's claim of novelty in Foreman's report was based on "mischaracterization" and that Foreman had always "clearly distinguished between these two scenarios, the partial and complete disengagement." L.A. Fitness replied that it was not blaming the Pellegrinis for introducing a new opinion; it said that it did not want "any surprise at trial" and that its experts needed "to address this new opinion." It asked the court to allow its experts to respond to Foreman's rebuttal. ¶15 Expressing a desire to be fair, the court denied the motion to preclude Foreman's rebuttal opinion. It allowed L.A. Fitness to disclose what its experts would say in response to Foreman's rebuttal. And it denied the motion for summary judgment because of questions of fact regarding L.A. Fitness's possible negligence. ¶16 On April 21, 2010, L.A. Fitness provided the Pellegrinis with a supplemental disclosure. It stated that two of its experts, Drs. Bosch and Hannon, would "address Mr. Foreman's 'rebuttal opinion' concerning the improper assembly of the roller pad." The supplemental disclosure went on to state that
[i]t is anticipated that Drs. Bosch and Hannon will testify, respectively, that it was and is mechanically and bio-mechanically probable, that in order for the pull pin to pass several slots and then re-engage "into another slot further along in the sequence of available slots in the hub weldment," that Mr. Pellegrini himself would have had to pull the tulip pin, and thereafter release the tulip pin "further along in the sequence of available slots." It was and is both mechanically and bio-mechanically possible for a user such as Mr. Pellegrini, while seated, to pull and disengage the start range of motion pin ('tulip pin') and then fall back off the machine due to his (the user's) own negligence.And it concluded by stating: "If the set collar had not loosened and the drum had remained tight, in order for the roller pad and its assembly to have rotated backwards without resistance, [Pellegrini] would have more probably than not had to pull the pin himself." ¶17 The trial began on May 3, 2010. On May 4, Pellegrini, while examining Foreman, asked the court to admit as evidence a video that Foreman had made -- called "Failure Sequence" -- to demonstrate his opinions. The Defendants objected to the video because it contained an animation of "pin-skipping" -- i.e., partial reengagement -- which they said Formeman had described in his deposition as "only a possibility and not a probability." The court allowed both sides to examine Foreman during voir dire. The court then read from a deposition a passage in which Foreman, who was asked if a "false engagement" caused Pellegrini's accident, said: "I don't think it's the most likely scenario, but it is a possible one." The court concluded that it could not let an expert proceed to testify about a possibility rather than a probability, and asked Pellegrini to omit the portions of the video that referred to pin-skipping. At the end of the day, the court returned to "the possibility versus probability argument," and after extensive discussion indicated that it was of the same opinion, but was open to reconsidering case law and the rebuttal report the next day. ¶18 On May 5, the Pellegrinis filed a motion "to exclude L.A. Fitness's untimely disclosed new theory of the case disclosed on April 21, 2010." According to the Pellegrinis, the "new theory" was the allegation that "Pellegrini himself pulled the tulip pin during the exercise." The court held a hearing that morning, at which L.A. Fitness argued that the April 21 pin-pulling theory was not new, but a valid response to Foreman's February 12 rebuttal opinion, which had suggested that partial engagement was the cause. The court noted that the idea was not totally novel, because during a deposition Foreman, discussing whether Pellegrini could have pulled the pin himself, had dismissed the notion as "ridiculous." The court therefore declined to exclude the pin-pulling theory. ¶19 The trial proceeded. Both sides presented evidence, cross-examined one another's witnesses, and had access to an example of the ST25 in the courtroom. On the last day of trial, May 27, 2010, the jury returned verdicts in favor of Brunswick and L.A. Fitness. Separate judgments were entered, and both became final; the Pellegrinis filed a motion for a new trial against Defendants, and the motion was denied; they then timely brought this appeal. We have jurisdiction under A.R.S. § 12-2101.
Pellegrini describes his injury as an "acute spinal cord injury" that initially paralyzed him. He eventually regained partial use of his arms and legs. The injury caused other significant permanent impairments.
STANDARD OF REVIEW ON THE PELLEGRINIS' APPEAL
¶20 We review the evidence in the light most favorable to upholding the jury verdicts. Hutcherson v. City of Phoenix, 192 Ariz. 51, 53, ¶ 13, 961 P.2d 449, 451 (1998). If any substantial evidence exists that permits reasonable persons to reach the same result reached by the jury, we will affirm the judgments. Id. ¶21 The Pellegrinis raise twelve issues for review. We address them in turn.
I. THE TRIAL COURT DID NOT ERR BY ALLOWING L.A. FITNESS TO PROVIDE SUPPLEMENTAL DISCLOSURE IN RESPONSE TO FOREMAN'S REBUTTAL OPINION.
¶22 When ruling on discovery and disclosure matters, the trial court has broad discretion. Reid v. Reid, 222 Ariz. 204, 206, ¶ 8, 213 P.3d 353, 355 (App. 2009). Absent an abuse of that discretion, the trial court's rulings on those matters will not be disturbed. Link v. Pima County, 193 Ariz. 336, 338, ¶ 3, 972 P.2d 669, 671 (App. 1998). ¶23 The disclosure rules are not designed to give the parties a "weapon" to use in the trial or on appeal. See Zimmerman v. Shakman, 204 Ariz. 231, 235, ¶ 13, 62 P.3d 976, 980 (App. 2003) (quoting Allstate Ins. Co. v. O'Toole, 182 Ariz. 284, 287, 896 P.2d 254, 257 (1995)). The purpose of the rules is "to provide parties 'a reasonable opportunity to prepare for trial or settlement -- nothing more, nothing less.'" Id. (quoting Bryan v. Riddel, 178 Ariz. 472, 477, 875 P.2d 131, 136 (1994)). ¶24 On appeal, the Pellegrinis argue that the court's decision allowing the "new" pin-pulling theory to be disclosed so close to trial put them at an unfair disadvantage -- that it forced them to undergo a "trial by ambush." ¶25 We disagree with that characterization. During a 2008 deposition, Dennis Griffin articulated the possibility that Pellegrini had pulled the pin himself:
So in looking at the equipment and trying to surmise what may have happened, I realized that if somebody had pulled this pull pin while they were exerting pressure against the roller pad, they would very likely, if they weren't otherwise secured in the machine, potentially go off the back.¶26 Further, Foreman had addressed the issue during a deposition in August 2009. Defense counsel and Foreman had the following exchange:
Q. Or Mr. Pelligrini could have pulled the pull-pin out while he was using it too; couldn't he have?¶27 L.A. Fitness's April 21, 2010 supplemental disclosure notified the Pellegrinis that its experts would testify that it was possible for "Pellegrini, while seated, to pull and disengage the start range of motion pin ('tulip pin') and then fall back off the machine due to his . . . own negligence." Moreover, on April 22, all parties signed and filed a final joint pretrial statement. In that statement, L.A. Fitness articulated its theory:
A. I don't think so.
Q. Why is that - in the realm of possibilities, why is that any less likely?
A. Well, when people are doing a back extension machine exercise they don't pull pull-pins out while they are doing the exercise. That's a ridiculous premise that someone would do that while they are doing the exercise . . . .
If the hub/range of motion selector did not separate, the most likely reason for the subject machine's padded back support retreating down is that Mr. Pellegrini had to have pulled the start range of motion selector pin while he was setting up or doing the exercise.¶28 The Pellegrinis did not file a motion to exclude that pin-pulling theory until May 5, after the jury had been selected and the trial had commenced. The court held a hearing on the motion; it considered the fact that Foreman had faced the pin-pulling theory during a deposition and that he had addressed it; and it denied the Pellegrinis' motion to exclude the theory. ¶29 Our review of the record indicates that the Defendants did not invent the idea of pin-pulling on the eve of trial and the court did not err in allowing it at trial. The Pellegrinis had notice that L.A. Fitness was going to argue that Pellegrini pulled the pin. If the Pellegrinis and their expert did not respond to that theory in a way the jury found persuasive, it does not necessarily follow that Foreman and the Pellegrinis were unfairly taken by surprise or that the court's decision to permit the theory's presentation was an abuse of discretion. ¶30 The Pellegrinis nevertheless maintain that the court's decision violated the Arizona Rules of Civil Procedure, specifically Rules 26.1(b)(2) and 37(c)(1). Rule 37(c)(1) prevents a party from using untimely disclosed information in trial "except by leave of court for good cause shown." And Rule 26.1(b)(2) requires a party wishing to use information that will be disclosed within 60 days of trial to "seek leave of court to extend the time for disclosure." Here, L.A. Fitness sought the court's leave to disclose its experts' pin-pulling theory. And the court allowed that supplemental disclosure for "good cause" -- L.A. Fitness argued that Foreman's own February 12 report emphasized "partial engagement" in such a way that it would be necessary to explain how that engagement could have happened if Pellegrini had pulled the pin himself. ¶31 Nothing in the record suggests that the court's decision was so unfair as to amount to an abuse of discretion. Indeed, the court seems to have given effect to its expressed desire to be fair to both sides. We cannot conclude that the court abused the discretion that the Arizona Rules of Civil Procedure gave it.
II. THE TRIAL COURT DID NOT ERR BY "CONDONING MISCONDUCT" BY COUNSEL.
¶32 On appeal, the Pellegrinis assert that counsel for L.A. Fitness made "serious and repeated" misrepresentations to the trial court about the pin-pulling and pin-skipping theories as they developed in the depositions. This misconduct, they argue, materially affected their rights and entitles them to a new trial. See Maxwell v. Aetna Life Ins. Co., 143 Ariz. 205, 215, 693 P.2d 348, 358 (App. 1984) ("Misconduct materially affects an aggrieved party's rights where it appears probable the misconduct actually influenced the verdict.") (citation omitted). ¶33 As L.A. Fitness points out in its answering brief, the Pellegrinis' two-paragraph argument on this point seems insubstantial given the seriousness of the claim. In their reply, the Pellegrinis point to their Statement of Facts, and invite us to decide which side is "accurately stating the record." ¶34 To the extent the Pellegrinis invite us to reweigh the evidence to determine whether L.A. Fitness misled the trial court, we decline the invitation. The determination of whether misconduct occurred is a factual determination properly made by the trial court in the exercise of its discretion. See Leavy v. Parsell, 188 Ariz. 69, 72, 932 P.2d 1340, 1343 (1997). And in this case the trial court considered the Pellegrinis' assertion of misconduct when it ruled on their motion for new trial. It found no misconduct on the part of L.A. Fitness's counsel. ¶35 What the court did find (a finding which it supported by extensive quotations) was evidence that during depositions Griffin had suggested that Pellegrini pulled the tulip pin out while he was leaning on the roller arm, and that Foreman was aware of that pin-pulling idea, though he dismissed it. Based on that deposition testimony -- not any false representations made by L.A. Fitness -- the court concluded that "basic fairness" required allowing the pin-pulling theory as a response to Foreman's February 12 report, which the court said introduced something "new" into the theories of causation. We therefore conclude that the court was not deceived into ruling erroneously; it was asked to decide a disclosure issue with assistance from all parties' counsel and based on the record before it.
III. THE TRIAL COURT DID NOT ERR IN REFUSING TO ALLOW THE PELLEGRINIS TO USE AS EVIDENCE A VIDEO RECORDING OF A DEMONSTRATION THAT HAD ALREADY BEEN PERFORMED IN THE COURTROOM.
¶36 During cross-examination, Pellegrini asked Dr. Hannon, an expert for the defense, to use the ST25 in the courtroom to demonstrate how a person seated on the machine would actually be able to pull the tulip pin out. Hannon got on the machine, the pin came out and the roller arm ended in the 3 o'clock position. The Pellegrinis, who had made a video of this in-court demonstration, asked the court to admit the video as evidence. After hearing argument, the court ruled that the video would not be admitted "because there wasn't sufficient foundation for it." On appeal, the Pellegrinis contend that this ruling was "absurd" and "unfair." ¶37 The trial court has "considerable discretion" when admitting or excluding evidence. Rimondi v. Briggs, 124 Ariz. 561, 563, 606 P.2d 412, 414 (1980). On appeal, disturbing a trial court's rulings on the exclusion or admission of evidence is inappropriate unless the record shows a clear abuse of discretion and some resulting prejudice. Gemstar Ltd. v. Ernst & Young, 185 Ariz. 493, 506, 917 P.2d 222, 235 (1996). ¶38 Here, the trial court excluded a video that depicted an event that everyone in the courtroom had already observed. The trial court is permitted to exclude repetitive evidence. Ariz. R. Evid. 403; State ex rel. La Sota v. Ariz. Licensed Beverage Ass'n, 128 Ariz. 515, 523, 627 P.2d 666, 674 (1981). And although the court articulated its ruling in terms of "foundation," it noted the video's repetitiousness when counsel argued that Pellegrini could lay a foundation for it because he had watched it. The court replied, "So did everybody in the courtroom." We conclude that the court's decision to exclude the video was not error. See Glaze v. Marcus, 151 Ariz. 538, 540, 729 P.2d 342, 344 (App. 1986) ("We will affirm the trial court's decision if it is correct for any reason . . . .") (citations omitted).
IV. THE TRIAL COURT DID NOT ERR IN EXCLUDING THE ANIMATION PREPARED BY THE PELLEGRINIS.
¶39 Before trial, Foreman had prepared an animation of the pin-skipping theory in which the pin was "jumping in and out of the holes." The Pellegrinis sought to have the animation admitted into evidence and played for the jury on May 4. The Defendants objected to the video, and the court asked both parties to argue whether the animation was accurate and whether it represented what Foreman had testified to in the past. After argument and a voir dire of Foreman, the court decided to exclude the animated portions of the video. The court, citing Foreman's testimony, said that it would not permit the animation because it demonstrated "a possibility, not a probability." ¶40 On May 26, the Pellegrinis again sought to have the animation admitted into evidence. Again, the Defendants objected, arguing that the animation illustrated only a "possibility." And again, Foreman was voir dired. The court reminded Foreman that he had testified that "the most probable cause" of the accident was "the collar loosening." It then asked Foreman to presume the accuracy of his own collar- loosening theory and to assign "a percentage estimate" -- from "zero to 100" -- to the possibility "that pin skipping contributed anything to this accident." Foreman said: "Under that hypothetical, probably zero." The trial court once again excluded the pin-skipping animation from evidence. ¶41 The Pellegrinis argue that the decision was wrong because their animation met the minimum requirements for admitting a computer animation under Bledsoe v. Salt River Valley Water Users' Ass'n, 179 Ariz. 469, 472, 880 P.2d 689, 692 (App. 1994). But even if the video met the Bledsoe requirements, it is nonetheless true that the "trial court has wide discretion in determining whether to allow demonstrative evidence and will not be overturned absent an abuse of discretion." Andrews v. Fry's Food Stores of Ariz., 160 Ariz. 93, 97, 770 P.2d 397, 401 (App. 1989) (citation omitted); see also Bledsoe, 179 Ariz. at 473, 880 P.2d at 693 ("The trial court has great discretion in conducting a trial.") (citation omitted). Here, the court's decision to exclude evidence demonstrating a theory that the Pellegrinis' expert described as a "possibility" rather than a "probability" was not an abuse of discretion. See Benkendorf v. Advanced Cardiac Specialists Chartered, 228 Ariz. 528, 530, ¶ 9, 269 P.3d 704, 706 (App. 2012) (recognizing "the requirement that a plaintiff must generally offer expert testimony about probable causation"). ¶42 Further, we find unpersuasive the Pellegrinis' claim that without the animation the jury "almost certainly" failed to understand Foreman's testimony. Other demonstrative evidence was admitted and available for demonstration, including parts of the actual ST25 on which Pellegrini was injured and a functioning ST25 used as an example. The court's decision to exclude the animation did not cut the Pellegrinis off from all means of demonstrating their expert's opinions. We therefore conclude that it was not an abuse of discretion.
V. THE TRIAL COURT DID NOT ERR IN EXCLUDING AN IMAGE OF A DIFFERENT EXERCISE MACHINE.
¶43 During trial, the parties disputed whether the toe bar on the ST25 was a safety feature or merely a feature for the user's comfort. Pellegrini sought to admit as evidence an image of the Pro 2, which he describes on appeal as the "replacement model" for the ST25. The expert testifying for the Defendants told the court that he found the image by doing an Internet search of Brunswick's website. The Defendants objected based on lack of foundation, the court sustained the objection, and the image was excluded. On appeal, the Pellegrinis argue that the court erred and that the image would have revealed as "bogus" Defendants' argument that the toe bar was a safety device. ¶44 The Pellegrinis claim that the decision was error because their request to admit the image came during cross- examination of the Defendants' expert, and they were entitled to question the expert "about the sources of his opinions and have the sources admitted at trial." (Emphases omitted.) But an expert's opinion can be based on facts or data that "need not be admissible in evidence." Ariz. R. Evid. 703. Neither party is entitled to have those facts or data automatically admitted into evidence; they are disclosed to the jury only if the judge determines that their probative value will outweigh any prejudicial effect. Id. ¶45 Here, the court allowed the expert to testify about the ST25's toe bars, but decided to exclude an Internet image of "the successor of the ST25." The court presumably concluded that the image of the newer machine possessed a probative value that was less than any prejudicial effect it would cause. The Arizona Rules of Evidence allow trial courts to reach that kind of conclusion. It was therefore no abuse of discretion to exclude the image.
VI. THE TRIAL COURT DID NOT ERR IN ALLOWING ONE EXPERT TO ANSWER A JUROR'S QUESTION THAT WAS ORIGINALLY ADDRESSED TO ANOTHER EXPERT.
¶46 During trial, L.A. Fitness called Dr. Ladin as a medical expert to testify about Pellegrini's injuries. Dr. Ladin told the jury he found "break away weakness" -- which he also called "cog wheeling" -- in Pellegrini's upper limbs. He contrasted that condition to "true weakness." True weakness, Dr. Ladin said, is easy to identify: "If somebody is weak because of a nerve injury or because of a spinal cord injury or what have you, they tend to be weak in a smooth fashion." Pellegrini lacked that "smooth weakness," he said. He said that when Pellegrini tried to hold his arms up while someone pushed them down,
there was a very ratchety pattern. So there would be increased effort and then it would go almost like we call it cog wheeling. That's the term we use as well. And that's usually a sign of decreased effort on the part of the individual as opposed to weakness due to nerve damage.¶47 The day after Dr. Ladin testified, another expert -- Dr. Raphael -- was called to the stand to testify about the ST25's seatbelt. Evidently the jury had prepared a question for Dr. Ladin, but did not submit it to the court while he was still present. The court read the question to Dr. Raphael:
[T]he jury members have two interpretations of Dr. Ladin's testimony concerning break away weakness or cog wheeling in upper extremities, A, one interpretation has to do with spasticity inhibiting the ability of the person undergoing strength testing to exert a steady resistance, thus causing the cog wheeling in the arms.¶48 The court asked Dr. Raphael, out of the jury's presence, if she would be able to answer that question, and she said that she would. When asked the question before the jury, Dr. Raphael said:
The second interpretation is that break away weakness or cog wheeling demonstrated by a person undergoing strength testing indicates that the person is being disingenuous about or faking the weakness.
So those are both medical terms. Cog wheel rigidity, break away weakness [are] both medical terms. They're different. They're not synonymous with each other. What cog wheel rigidity means, it happens a lot with Parkinson's patients. And when you're pulling somebody against and they're supposed to be pulling back, they get this cog wheeling, that's like a muscle spasm so you can feel it as you're pulling their arm down. That's cog wheeling.¶49 On appeal, the Pellegrinis claim that the court's decision to allow Dr. Raphael to answer the jury's question was error. They also claim that it introduced prejudice because, as they put it, Dr. Raphael said that "'break away weakness' indicated [Pellegrini] was faking." ¶50 The questioning of witnesses by jurors serves an important purpose: it helps ensure that "jurors be well-informed with an opportunity to clarify matters they either did not hear or did not comprehend." State v. LeMaster, 137 Ariz. 159, 165, 669 P.2d 592, 598 (App. 1983). The general rule is that the handling of jury questions is left to the discretion of the trial court, and that we will not reverse unless there is a clear abuse of that discretion. Id. at 163-64, 669 P.2d at 596-97. ¶51 Here, the trial court had jurors who wanted clarification of terms that they had heard Dr. Ladin use when he testified. But the court faced a difficulty: Dr. Ladin was gone by the time it received the question. It overcame that difficulty by asking Dr. Raphael, a medical doctor, whether she would be able to answer the question. She gave a practice answer in front of the court and counsel, and the court then allowed her to answer the question in front of the jury. Nothing in the trial court's solution was a clear abuse of discretion. Furthermore, nothing in Dr. Raphael's answer was tantamount to an assertion that Pellegrini was faking. If the jury concluded that Pellegrini's symptoms were "disingenuous" (and we have no reason to conclude that it did), it was not because Dr. Raphael so opined.
As opposed to break away weakness, where they start out resisting the force and then they let go. That's actually something that's considered to be disingenuous. So the two things are different.
VII. THE TRIAL COURT DID NOT ERR IN RESTRICTING THE SCOPE OF PELLEGRINI'S REBUTTAL.
¶52 Early in the trial, Pellegrini called Dr. George to testify as an expert in biomechanics, a discipline which Dr. George described as "the application of basic Newtonian physics to human movement." Later, Dr. Raphael, called by the Defendants, criticized Dr. George's explanation of how Pellegrini fell, saying "they weren't consistent with what Sir Isaac Newton said about the laws of motion." Specifically, Dr. Raphael's critiques were aimed at Dr. George's contention that Pellegrini's momentum was such that he could have fallen off the machine even if he were belted. ¶53 The Pellegrinis claimed that Dr. Raphael's unexpected discussions of "angular momentum" required extensive rebuttal. The court allowed the Pellegrinis to rebut Dr. Raphael's testimony by examining Dr. George, but limited the rebuttal to 15 minutes. On appeal, the Pellegrinis argue that this amount of time was clearly inadequate to address a subject as recondite as Newton's Laws, and that as a result they were "cheated" because the jury could have concluded from Dr. Raphael's inadequately rebutted testimony that Pellegrini was not actually wearing the ST25's seatbelt. ¶54 The trial court has discretion to determine the scope of rebuttal, and "in the absence of an apparent abuse thereof its action will not be reversed on appeal." State v. Young, 116 Ariz. 385, 387, 569 P.2d 815, 817 (1977) (citation omitted). Here, when Pellegrini's counsel requested time to rebut "Dr. Raphael's rendition of what happened with respect to angular momentum," the court pointed out that the parties had "just spent a half hour talking about that" during Foreman's testimony. The trial court also noted that the repetitive testimony was likely to unduly fatigue the jury at that stage of the trial. Given those considerations, we conclude that the court's grant of 15 minutes for rebuttal was not an abuse of discretion.
VIII. THE TRIAL COURT'S DECISION TO ADMIT THE INCIDENT REPORT WAS NOT A PREJUDICIAL ERROR.
¶55 After Pellegrini's accident, an L.A. Fitness employee, Jeannie Lee Wade, filled out an incident report. In the section titled "Member Statement," Wade had written: "He was not wearing his seat belt and went over backwards." L.A. Fitness sought to admit the incident report through another of its employees, Danny Walker. Walker admitted that he was not there when Wade filled the report out and that he had no idea whether Wade had even talked to Pellegrini about the incident. The Pellegrinis objected to the report as hearsay, but the court admitted the evidence as an "admission against interest" and as a report of regularly conducted business activity. ¶56 The Pellegrinis argue on appeal that admitting the incident report was an error since it was "pure hearsay," not subject to any exceptions. We disagree. First, Dennis Griffin testified that the incident report prepared by Wade was the same kind typically produced by L.A. Fitness employees following an accident at one if its clubs and submitted to the Risk Management Department. The trial court's finding that the incident report was a report of regularly conducted business activity, and therefore admissible under Ariz. R. Evid. 803(6), had an adequate foundation. That foundation -- contrary to the arguments of the Pellegrinis -- is not destroyed by the fact that another employee, Danny Walker, happened to not know Wade or the circumstances in which she filled out the report. Second, the statement from Pellegrini included in the report did not need to qualify for a hearsay exception; it was an admission by a party opponent under Ariz. R. Evid. 801(d)(2). ¶57 Further, we noted earlier that a party appealing from a trial court's ruling on the admission of evidence must show more than an error; it must also demonstrate some resulting prejudice. Gemstar, 185 Ariz. at 506, 917 P.2d at 235. Even if we were to assume that the Pellegrinis are correct and that the court erred in admitting the incident report, the admission of the incident report would not have created a prejudice warranting reversal. The record indicates that the incident report did not create that kind of prejudice because at least one other L.A. Fitness employee, Richard Dove, testified that Pellegrini admitted to him that he was not wearing the ST25's seatbelt.
This oft-used phrase is an unfortunate conflation of two concepts surrounding the hearsay rule. An admission of a party opponent, which we take to be the basis for admission here, is admissible despite the hearsay rule because it is not hearsay. Ariz. R. Evid. 801(d)(2). A statement against interest is an exception to the hearsay rule that allows admission of hearsay statements in certain circumstances when the declarant is unavailable. Ariz. R. Evid. 804(b)(3).
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IX. THE TRIAL COURT DID NOT ERR IN GIVING THE JURY INSTRUCTIONS ABOUT THE USE OR NON-USE OF THE SEATBELT AND TOE BARS.
¶58 We view jury instructions as a whole so that we can determine whether or not the jury was given the proper rules to apply in arriving at its decision. Catchings v. City of Glendale, 154 Ariz. 420, 424, 743 P.2d 400, 404 (App. 1987). If there is no "substantial doubt" that the jury was properly guided in its deliberations, the jury's verdict will not be overturned because of the instructions. Id. ¶59 At the end of the trial, the court gave the jury instructions about the Defendants' claim that Pellegrini was at fault for not properly using the ST25's seatbelt or toe bars. It told the jury that it could find that Pellegrini was at fault, and therefore reduce his damages, if it thought that the Defendants proved that (1) Pellegrini did not use the seatbelt or the toe bars; (2) his non-use of those devices was unreasonable; and (3) his injuries would not have occurred had he been wearing the seatbelt or sitting with his toes under the toe bars. ¶60 On appeal, the Pellegrinis argue that the court erred in giving this instruction. The Pellegrinis challenge the propriety of this jury instruction based on their contention that neither the seatbelt nor the toe bars were safety devices. They say that the seatbelt's purpose was to "keep the user's butt down" during the exercise and that the toe bars were just another place for the user to rest his feet. ¶61 The ST25, though, had a label saying "WARNING: SERIOUS INJURY CAN OCCUR ON THIS EQUIPMENT," another label instructing the user to "Fasten seat belt," and a diagram depicting a user on the machine with her toes under the toe bars. During the trial, Pellegrini admitted that he had "read all the instructions and placards," and that he had thought the seatbelt was a safety device. Further, Dr. Raphael, the expert for the Defendants, gave as her opinion about Pellegrini's use of the seatbelt and toe bar that "had he been wearing a seatbelt and had his feet [been] on the foot pads with his toes under the toe bars, he would not have been able to fall off this machine in such a way [that] his head could have contacted the ground." ¶62 The record clearly shows that the jury was faced with the task of determining whether Pellegrini failed to use devices on the ST25 that were meant to prevent him from being injured in the way that he was. The court's instructions to the jury gave it the rules that it needed to reach a decision about that alleged failure. We find no error.
X. THE TRIAL COURT DID NOT ERR IN GIVING THE JURY AN INSTRUCTION ON ASSUMPTION OF THE RISK.
¶63 The court also instructed the jury that L.A. Fitness claimed that Pellegrini assumed the risk of injury, and that to apply that defense the jury would need to find (1) that Pellegrini assumed a particular risk of injury and (2) that that particular risk was a cause of his injury. ¶64 The Arizona Constitution states that "assumption of risk shall, in all cases whatsoever, be a question of fact and shall, at all times, be left to the jury." Ariz. Const. art. XVIII, § 5. "Under the plain language of the provision, a jury must decide if the affirmative defense of assumption of risk, whether express or implied, precludes a plaintiff from recovering damages resulting from any negligence on the part of a defendant." Phelps v. Firebird Raceway, Inc., 210 Ariz. 403, 405, ¶ 11, 111 P.3d 1003, 1005 (2005). And to raise the defense, "a defendant must present evidence showing: (1) a risk of harm to the plaintiff caused by the defendant's conduct; (2) plaintiff's actual knowledge of the risk and appreciation of its magnitude; and (3) plaintiff's voluntary choice to accept the risk given the circumstances." A Tumbling-T Ranches v. Flood Control Dist. of Maricopa Cnty. , 222 Ariz. 515, 539, ¶ 79, 217 P.3d 1220, 1244 (App. 2009) (citation omitted). ¶65 On appeal, the Pellegrinis argue that the Defendants failed to present the evidence required to raise the defense. They primarily question whether there were sufficient facts to find that Janis Pellegrini's signing of the membership agreement, which took place several years before the accident, could be an express assumption of the risk on behalf of her husband. But the court's instruction did not address this point -- it merely summarized the elements of assumption of the risk and informed the jury that the defense could be considered as a component of its comparative fault determination. And as we noted above, the jury was faced with the question whether Pellegrini was actually wearing the seatbelt. During testimony, Pellegrini indicated that he was aware that using more than 200 pounds on the ST25 without the seatbelt was unwise; he said that he had witnessed others doing it and thought that it was "stupid." The jury, therefore, had facts before it from which it could conclude that on the day of his injury Pellegrini assumed the risk of using the ST25 without a seatbelt. We conclude that the court's instruction on that defense was not error.
XI. REVERSAL IS NOT WARRANTED BY ANY ALLEGED ACCUMULATION OF ERRORS.
¶66 The Pellegrinis cite Rodriguez v. Schlittenhart, 161 Ariz. 609, 617, 780 P.2d 442, 450 (App. 1989), for the proposition that reversible prejudice can result when errors are considered cumulatively. Because we have found no error, the doctrine does not apply here.
XII. THE COURT PROPERLY DENIED THE PELLEGRINIS' MOTION FOR A NEW TRIAL AGAINST ALL DEFENDANTS.
¶67 The Pellegrinis' final issue mirrors the first. They contend that Brunswick benefitted from L.A. Fitness's "last-minute" addition of the pin-pulling theory and that the trial court erred in not granting a new trial on all claims against both Defendants. The denial of the Pellegrinis' motion for a new trial was another matter within the trial court's discretion. Matos v. City of Phoenix, 176 Ariz. 125, 130, 859 P.2d 748, 753 (App. 1993). We have already concluded that the court's ruling on the pin-pulling theory at trial was not an abuse of its discretion.
L.A. FITNESS'S CROSS-APPEAL
¶68 In its cross-appeal, L.A. Fitness challenges both the trial court's amendment of the judgment following a Rule 60(c)(3) motion, as well as its award of attorney's fees to the Pellegrinis under A.R.S. §§ 12-349 and -350. ¶69 The Pellegrinis, L.A. Fitness, and Brunswick participated in a mediation on September 1, 2009. Because that mediation was unsuccessful, L.A. Fitness prepared an offer of judgment under Ariz. R. Civ. P. 68. On September 3, 2009, an assistant for L.A. Fitness's counsel filed a copy of the offer with the trial court. On the same day, according to L.A. Fitness, the assistant placed a copy of the offer in the mail with the proper address for the Pellegrinis' counsel. ¶70 The jury returned its verdict in favor of L.A. Fitness and Brunswick on May 27, 2010. On June 8, counsel for the Pellegrinis e-mailed counsel for L.A. Fitness, stating that when the Pellegrinis' counsel had checked their files to see if Brunswick had made an offer of judgment, they had discovered that they did not have an offer in their files from L.A. Fitness. On June 11, L.A. Fitness requested sanctions under Rule 68(g). L.A. Fitness requested the expert costs incurred after September 3, 2009, in the amount of $104,123.22 and double taxable costs in the amount of $70,236.10. The Pellegrinis objected to the request for costs, arguing that they never received the offer. On June 28, the trial court, citing "the presumption that a document placed in the mail is deemed to have been delivered and received," awarded L.A. Fitness costs and expert fees in the sum of $137,748.01. ¶71 On July 28, the Pellegrinis filed a motion under Ariz. R. Civ. P. 60(c)(3), alleging that there was a misrepresentation in one of L.A. Fitness's affidavits related to the offer's mailing. On October 15, 2010, the court held a hearing to reconsider the issue. At the end of that hearing, the court found that the offer of judgment had been prepared but that it was never mailed to the Pellegrinis' counsel. The court indicated that it believed the Pellegrinis would be entitled to attorney's fees in connection with the Rule 68 sanctions. ¶72 On October 25, the Pellegrinis filed a motion requesting attorney's fees under A.R.S. § 12-349(A)(3). They argued that L.A. Fitness unnecessarily expanded the proceedings by arguing that the offer of judgment had been mailed and that the Pellegrinis' counsel had incurred unnecessary costs in undergoing an extensive review of their files and preparing exhibits to explain their computerized filing system. ¶73 On November 12, 2010, the court amended the judgment in favor of L.A. Fitness to award costs of $33,693.05. On December 9, the court awarded to the Pellegrinis attorney's fees against L.A. Fitness in the amount of $5,000. Pursuant to A.R.S. § 12-350, the court made the following findings of fact in ruling on the attorney's fees: (1) that L.A. Fitness needlessly expanded the proceedings by failing to verify whether Brunswick's counsel had received a copy of the offer of judgment; (2) that L.A. Fitness in essence accused the Pellegrinis' counsel of managing its office procedures in a way that would amount to malpractice; (3) that L.A. Fitness's financial assets were "extremely disparate" compared to those of the Pellegrinis; and (4) that the Pellegrinis' counsel was forced to do a substantial amount of unnecessary work regarding the claim of double costs. ¶74 We will not disturb the trial court's ruling on a motion for relief under Rule 60(c) absent an abuse of discretion. Owen v. Blackhawk, 206 Ariz. 418, 422, ¶ 17, 79 P.3d 667, 671 (App. 2003). Here, the court had received an affidavit from the Pellegrinis' counsel countering the claim that its office had misplaced other documents. The court stated that it was persuaded by evidence presented from the Pellegrinis' counsel about their scanning system and their thorough search of their files. It also noted that counsel for Brunswick were not able to produce copies of the offer that was supposed to have been mailed to them. We therefore conclude that the court's grant of relief under Rule 60(c) was not an abuse of its discretion. ¶75 Under A.R.S. § 12-349(A)(3), the court shall award reasonable attorney's fees if it finds that a party "[u]nreasonably expands or delays the proceeding." If the award is made, A.R.S. § 12-350 requires the court to "set forth the specific reasons for the award"; the statute provides the court with a list of factors it may include, if they are relevant, in its consideration. When we review the court's award of attorney's fees under A.R.S. § 12-349, we view the evidence in the light most favorable to sustaining it. Phoenix Newspapers, Inc. v. Dep't of Corrs., 188 Ariz. 237, 243, 934 P.2d 801, 807 (App. 1997). And we will not vacate the award unless the trial court's findings are clearly erroneous. Id. ¶76 Here, the court granted the award because it found that litigating the offer's mailing and the Rule 68 sanctions "needlessly expanded the proceedings." The court's specific reasons, set out pursuant to § 12-350, made sense given the findings it made following the hearing held to decide the Rule 60(c) motion. It found that L.A. Fitness's basic allegation -- that it had mailed the offer of judgment and that the Pellegrinis' counsel had somehow lost it -- had a serious implication, i.e., that it was essentially an accusation of malpractice. And given the conflicting affidavits of each side's legal assistants, the court concluded that L.A. Fitness had not reasonably investigated the facts before pressing such a serious issue. The court's decision to award the Pellegrinis fees in connection with that stage of the litigation was not out of the bounds of §§ 12-349 and -350, nor was it based on a clearly erroneous interpretation of evidence or testimony.
CONCLUSION
¶77 We affirm the judgments in favor of L.A. Fitness and Brunswick. We also affirm the award of attorney's fees to the Pellegrinis.
______________________________
PETER B. SWANN, Presiding Judge
CONCURRING: _______________________
MICHAEL J. BROWN, Judge
_______________________
JON W. THOMPSON, Judge