Clem v. Pinal County, No. 2 CA-CV 2024-0305 (App. Div. II, October 30, 2025) (J. Sklar) https://www.appeals2.az.gov/decisions/CV20240305Opinion.pdf

JUROR FRIENDSHIP & POLITICAL SUPPORT FOR DEFENDANT SHERIFF AND DEFENDANT'S TRIAL REPRESENTATIVE NOT “STRUCTURAL ERROR” OR PREJUDICIAL REQUIRING MISTRIAL OR REVERSAL/EXPERT'S FAILURE TO USE TERM “STANDARD OF CARE” IN PRETRIAL DISCLOSURE REPORT DID NOT REQUIRE COURT TO PRECLUDE EXPERT FROM TESTIFYING ABOUT JAIL STANDARDS/TRIAL COURT HAS BROAD DISCRETION IN ASSESSING REASONABLENESS OF EXPERT WITNESS FEES UNDER RULE 68 OFFER OF JUDGEMENT SANCTIONS AND IS NOT REQUIRED TO EXPLAIN REDUCTION DETERMINATION

Plaintiff brings this wrongful death action against the Pinal County Sheriff Mark Lamb for her son's death at the Pinal County Adult Detention Facility where he died of a drug overdose. The case resulted in a defense verdict.

The trial court allowed juror 6 to sit on the case despite his statements in voir dire that he had worked with the Sheriff's trial representative Ross Teeple when juror 6 worked at the prison, but that they were “just friends.” He did not respond to the voir dire question as to whether he had appeared in photos with the Sheriff or Teeple. He said his friendship with Teeple would not “persuade [him] in any way to favor one side over the other.” Later that day plaintiff's counsel found Facebook photos of juror 6 campaigning with Lamb for the U.S. Senate. The photo was a reposting of Teeple's as part of his campaign to replace Lamb as Sheriff. Follow up questions revealed juror 6 and Teeple were “close friends” who saw each other every two months and that juror 6 had contributed to Teeple's campaign and appeared at two events for Lamb in his campaign for Sheriff in 2020. Plaintiff challenged juror 6 for cause. The trial court denied the challenge stating, ““I don't find the nature of the relationships . . . to be of any real significance to disqualify him given what I've been told by both sets of attorneys regarding the involvement of Teeple and Lamb” in the case.  .  .  ., At this point it appears based on his body language, the record, his statements on the record to the court, to the attorneys that he can be fair and impartial.”

On day five of the trial plaintiff's attorney's paralegal found that juror 6 had posted an endorsement of Lamb and Teeple on Facebook during the trial. Plaintiff sought a mistrial stating “[T]his post during trial is signaling to Ross Teeple and Mark Lamb, ‘I'm still your guy.'” “Juror six acknowledged reposting a video from the ‘Teeple for the People' website.  He also acknowledged that “it could” look unfair that he had posted support for Teeple and Lamb during trial.”  But he reiterated that he had no allegiance to Teeple and Lamb “pertaining to this trial.”  He said, “When I did that, I wasn't even thinking about this case.”  Finally, juror 6 admitted under questioning from the judge that he had discussed his friendship with Lamb and Teeple with other jurors.” The trial court found “an appearance of impropriety” and removed juror 6 but denied plaintiff's motion for mistrial.

The trial court also allowed the defense expert to testify regarding jail standards despite the fact he had not used the term “standard of care” in his pretrial disclosure. Finally, the trial court granted defendant sanctions under Rule 68 Offer of Judgment but reduced the amount of expert witness fees requested.

Plaintiff appealed the failure to grant a mistrial and the admission of defense expert testimony on the standard of care and the defense cross-appealed the reduction in sanctions. The Arizona Court of Appeals affirmed.

While juror 6's relationship with Lamb and Teeple “strongly suggests” bias under A.R.S. § 21-211(4), despite his repeated assurances he could be fair, allowing him to sit on the case for 5 days and discuss his friendship with Lamb and Teeple among other jurors did not amount to reversible, prejudicial or structural error. The right to relief due to prejudicial error flows from Ariz. Const. art. VI, § 27 “No cause shall be reversed for technical error in pleadings or proceedings when upon the whole case it shall appear that substantial justice has been done.” Here the scant evidenced deduced on the record of juror 6's discussions with other jurors and the plaintiffs' failure to establish the violation of a “substantial right”  with affidavits from jurors who sat on the case failed support a finding of prejudice.

While 606(b)(1) Rules of Evidence preclude impeaching a verdict with juror affidavits regarding discussions during deliberations, juror “ mental processes” or “the effect of anything” on a juror's vote, there are exceptions regarding “extraneous prejudicial information improperly brought to the jury's attention” or evidence of  “outside influence [that] was improperly brought to bear  on any juror.” Ariz. R. Evid. 606(b)(2)(A)&(B).

Verdicts typically cannot be reversed in the absence of prejudice unless there is “structural error”. Ring v. Arizona, 204 Ariz. 534, (2003) (criminal sentencing) (A constitutional error that is so fundamentally flawed it requires automatic reversal of a conviction or sentence. This is considered a "structural" defect in the trial process itself and can't be deemed harmless. Examples include the complete denial of counsel or a biased judge.) While no Arizona case applies the structural error standard in a civil case, even if it does apply, to civil cases prior case law would suggest it does not apply to empaneling a biased juror excused before deliberations. Here the trial judge was justified in not granting a mistrial.

A mistrial is an “extreme remedy It is appropriate only where some

occurrence has made it “apparent to the court” that “one of the

parties cannot have a fair trial, or where further proceedings would

be productive of great hardship or manifest injustice. Before

declaring a mistrial, the trial court must attempt to determine

whether feasible alternatives exist.

While defendant's expert report did not use the term “standard of care” other pretrial filings indicated he would be addressing the standard of care and he was examined extensively and cross examined on the point. Because the report itself was not included in the record the court of appeals could not compare it to his in-court testimony, yet the trial testimony appeared to cover the same subject matter. Hence while Rule 26.1 was not strictly adhered to, plaintiff could not claim surprise that the witness would address the standard of care in his testimony and failed to demonstrate how she was prejudiced by the rule violation.

Finally, in applying the 2016 version of Rule 68 the trial court reduced the amount of awardable expert witness fees to the defense.  Defendants' objection to the reduction and allegation the trial court was obligated to explain the reduction, was not supported by any authority. Trial courts are not generally required to explain decisions to reduce fees. Denying defendants' appeal on this point is further supported by plaintiff's argument that the expert kept insufficient time records.