Justia.com Opinion Summary: After Jerome Walsh died, Elizabeth Walsh and the couple's four children filed a wrongful death action against Advanced Cardiac Specialists Chartered (ACS) and its employees (collectively, Defendants). Plaintiffs alleged that Defendants had caused Jerome's death by failing to diagnose and treat an infection. The jury found in favor of Plaintiffs and awarded $1 million to Elizabeth but no damages to the children. The children moved for a new trial, arguing insufficient damages and that the verdict was not justified by the evidence. The trial court denied the motion, finding that Plaintiffs had waived the issue. At issue before the Supreme Court was whether wrongful death claimants whose trial testimony on damages is uncontroverted, but who receive a jury verdict awarding zero damages, are entitled to a new trial on damages as a matter of law. The Supreme Court reversed, holding (1) a jury may award no compensation in these circumstances if it deems that award to be fair and just; and (2) although a new trial is not automatically required, the trial court may grant one pursuant to Ariz. R. Civ. P. 52(a) if it determines the award is insufficient or not justified by the evidence. Remanded.
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SUPREME COURT OF ARIZONA
En Banc
ELIZABETH WALSH, surviving wife
of JEROME WALSH, deceased; and
ANNETTE FORRESTER, SCOTT WALSH,
STEVEN WALSH, and LISA CLINE,
surviving children of JEROME
WALSH, deceased,
)
)
)
)
)
)
)
Plaintiffs/Appellants, )
)
v.
)
)
ADVANCED CARDIAC SPECIALISTS
)
CHARTERED,
)
)
Defendant/Appellee. )
)
__________________________________)
Arizona Supreme Court
No. CV-11-0198-PR
Court of Appeals
Division One
No. 1 CA-CV 09-0751
Maricopa County
Superior Court
No. CV2006-003676
O P I N I O N
Appeal from the Superior Court in Maricopa County
The Honorable Thomas Dunevant, III, Judge (Retired)
The Honorable Dean M. Fink, Judge
REVERSED AND REMANDED
________________________________________________________________
Opinion of the Court of Appeals Division One
227 Ariz. 354, 258 P.3d 172 (App. 2011)
VACATED
________________________________________________________________
COPPLE & COPPLE PC
By
Steven D. Copple
S. Christopher Copple
Phoenix
And
LAW OFFICE OF SCOTT E. BOEHM PC
By
Scott E. Boehm
Attorneys for Elizabeth Walsh, Annette Forrester, Scott
Walsh, Jerome Walsh, Steven Walsh, and Lisa
Cline
1
Phoenix
JARDINE BAKER HICKMAN & HOUSTON PLLC
By
Neil C. Alden
Curtis M. Bergen
Phoenix
And
JENNINGS STROUSS & SALMON PLC
By
John J. Egbert
Attorneys for Advanced Cardiac Specialists Chartered
Phoenix
SNELL & WILMER LLP
By
Barry D. Halpern
Sara J. Agne
Attorneys for Amicus Curiae Arizona Medical Association
Phoenix
HUMPHREY & PETERSEN PC
Tucson
By
Andrew J. Petersen
Attorney for Amicus Curiae Arizona Association of
Defense Counsel
________________________________________________________________
P E L A N D E R, Justice
¶1
The
issue
presented
is
whether
wrongful
death
claimants whose trial testimony on damages is uncontroverted,
but
who
receive
a
jury
verdict
awarding
zero
damages,
entitled to a new trial on damages as a matter of law.
are
We hold
that a jury may award no compensation in these circumstances if
it deems that award to be fair and just.
Although a new trial
is not automatically required, the trial court may grant one
pursuant
to
Arizona
Rule
of
Civil
Procedure
59(a)
if
it
determines the award is insufficient or not justified by the
evidence.
2
I.
¶2
Jerome and Elizabeth Walsh resided in Minnesota and
wintered in Arizona.
Jerome underwent heart surgery in 2003.
He became ill while in Arizona the next winter and was treated
by physicians employed by Advanced Cardiac Specialists Chartered
(ACS).
After Jerome returned to Minnesota, doctors determined
that his replacement valve was infected.
Jerome died a day
after being admitted to a Minnesota hospital.
¶3
Elizabeth and the couple’s four adult children filed
this
wrongful
death
action
against
ACS
and
its
employees,
claiming they caused Jerome’s death by failing to diagnose and
treat
the
children
infection.
testified
At
trial,
extensively
Elizabeth
about
their
and
warm
each
of
the
relationship
with Jerome and the loss they experienced from his death.
This
testimony was not contested by the defense: the children were
not cross-examined on the issue, no contradictory evidence was
presented, and counsel in closing argument did not question the
damage testimony.
The jury found in favor of Elizabeth and the
children, awarding $1 million to Elizabeth, but noting “0” on
the
verdict
form
in
the
spaces
designated
for
each
child’s
damages.
¶4
59(a)(5),
The
children
arguing
moved
for
insufficient
3
a
new
damages,
trial
and
under
Rule
Rule
59(a)(8),
contending
the
verdict
was
not
justified
by
the
evidence.
Citing White v. Greater Arizona Bicycling Association, 216 Ariz.
133,
163
P.3d
1083
(App.
2007),
and
Sedillo
v.
City
of
Flagstaff, 153 Ariz. 478, 737 P.2d 1377 (App. 1987), the trial
court determined that the verdict was “internally inconsistent
and not responsive” because “the liability finding required an
award at least of uncontroverted damages.”
But the court denied
the motion for a new trial, concluding that the children had
waived the issue under Arizona Rule of Civil Procedure 49(c) by
not objecting to the inconsistent verdict before the jury was
discharged.
See Trustmark Ins. Co. v. Bank One, Ariz., NA, 202
Ariz. 535, 543 ¶¶ 38-39, 48 P.3d 485, 493 (App. 2002) (holding
that plaintiff who failed to object under Rule 49(c) had waived
argument that new trial was required due to inconsistency of
jury’s
findings
for
plaintiff
without
awarding
damages
in
negligence action).
¶5
grounds.
The
court
of
appeals
affirmed,
but
on
different
It concluded that “the rule announced in White and
Sedillo that ‘[t]here must be support in the record, however
slight,
for
a
jury’s
testimony’ is wrong.”
decision
to
disregard
a
witness’s
Walsh v. Advanced Cardiac Specialists
Chartered, 227 Ariz. 354, 360 ¶ 22, 258 P.3d 172, 178 (App.
2011) (quoting White, 216 Ariz. at 140 ¶ 22, 163 P.3d at 1090).
4
Agreeing instead with the White and Sedillo dissents, id. at 356
¶ 8, 258 P.3d at 174, the court held that a jury in a wrongful
death action may award zero damages — even absent contradictory
evidence on damages — “because (1) the burden is on a plaintiff
to prove damages, (2) that burden does not shift, and (3) a jury
is free to disregard the evidence that a plaintiff produces.”
Id. at 360 ¶ 22, 363 ¶ 30, 258 P.3d at 178, 181.
Because a
wrongful death award of zero damages is permissible, the court
found the Rule 49(c) waiver issue moot and remanded the case for
the trial court to consider the children’s Rule 59(a) motion for
a new trial.
¶6
with
Id. at 356 ¶ 8, 363 ¶ 34, 258 P.3d at 174, 181.
We granted review because the opinion below conflicts
White
and
Sedillo,
statewide importance.
and
the
issue
presented
is
one
See Ariz. R. Civ. App. P. 23(c)(3).
of
We
have jurisdiction under Article 6, Section 5(3) of the Arizona
Constitution and A.R.S. § 12-120.24 (2003).
II.
¶7
There was no action for wrongful death at common law.
In re Lister’s Estate, 22 Ariz. 185, 187, 195 P. 1113, 1113
(1921).
most
England created such an action by statute in 1846, and
states
have
since
enacted
wrongful
death
laws.
Id.;
Summerfield v. Superior Court, 144 Ariz. 467, 470-71, 698 P.2d
712, 715-16 (1985).
Arizona’s statute provides that “[w]hen
5
death of a person is caused by wrongful act, neglect or default,
. . . the person who . . . would have been liable if death had
not ensued shall be liable to an action for damages.”
§ 12-611.
A.R.S.
The statutory scheme directs that “the jury shall
give such damages as it deems fair and just with reference to
the injury resulting from the death to the surviving parties who
may
be
entitled
to
recover,
and
also
having
regard
to
the
mitigating or aggravating circumstances attending the wrongful
act, neglect or default.”
¶8
A.R.S. § 12-613.
Damages awardable under the wrongful death statutes
differ in some respects from damages in common-law negligence
cases.
In
the
latter,
damages
are
based
on
any
proximately caused by the defendant’s negligence.
injuries
Gipson v.
Kasey, 214 Ariz. 141, 143 ¶ 9, 150 P.3d 228, 230 (2007).
In
contrast,
to
wrongful
death
damages
are
statutorily
limited
injuries “resulting from the death,” § 12-613, which may include
the
decedent’s
prospective
earning
capacity;
the
loss
of
companionship, comfort, and guidance caused by the death; and
the survivor’s emotional suffering, but not the decedent’s own
pain and suffering.
See Summerfield, 144 Ariz. at 472, 698 P.2d
at 717; Mullen v. Posada Del Sol Health Care Ctr., 169 Ariz.
399, 400, 819 P.2d 985, 986 (App. 1991).
6
¶9
Damages are an indispensable element of a common-law
negligence claim.
Glaze v. Larsen, 207 Ariz. 26, 29 ¶ 15, 83
P.3d 26, 29 (2004).
favor
of
the
inconsistent.
(negligence
Thus, in a negligence case, a verdict in
plaintiff
awarding
zero
damages
is
See Gipson, 214 Ariz. at 143 ¶ 9, 150 P.3d at 230
claim
requires
proof
of
“actual
Trustmark, 202 Ariz. at 543 ¶ 38, 48 P.3d at 493.
are
not
claim.
an
internally
essential
element
of
a
statutory
damages”);
But damages
wrongful
death
Because the jury may award whatever amount “it deems
fair and just,” § 12-613, the jury is not statutorily required
to award any compensation.
See Quinonez ex rel. Quinonez v.
Andersen, 144 Ariz. 193, 198, 696 P.2d 1342, 1347 (App. 1984)
(affirming jury award of zero damages in wrongful death case
when plaintiff, decedent’s husband, had an abusive relationship
with her).
¶10
The children acknowledge that a verdict awarding zero
damages may be appropriate in some wrongful death cases.
But
they contend that they are entitled to a new trial as a matter
of
law,
because
the
testimony
about
their
relationship with their father was uncontested.
close,
loving
The children
cite several cases in which this Court stated that a jury may
not arbitrarily reject uncontradicted evidence.
See O’Donnell
v. Maves, 103 Ariz. 28, 32, 436 P.2d 577, 581 (1968); Ft. Mohave
7
Farms, Inc. v. Dunlap, 96 Ariz. 193, 198, 393 P.2d 662, 665
(1964); In re Schade’s Estate, 87 Ariz. 341, 348, 351 P.2d 173,
178 (1960).
¶11
Those cases, however, do not involve wrongful death
claims,
in
which
the
jury
must
subjectively
value
the
plaintiff’s damages and award the amount it deems “fair and
just.”
821
See Hernandez v. State, 128 Ariz. 30, 32, 623 P.2d 819,
(App.
1980)
companionship,
(“Translation
affection,
into
and
dollars
society,
and
of
the
the
loss
anguish
of
the
[survivors] experienced as a result of [the decedent’s] death is
peculiarly
the
jury’s
function. . . . Each
case
must
be
considered on its own facts.”); see also Patison v. Campbell,
337
S.W.2d
72,
75
(Mo.
1960)
(“It
pecuniary value on human life.
is
difficult
to
put
a
The jury has an extraordinarily
wide discretion in determining the amount of compensation for a
wrongful death [based on what it deems ‘fair and just’], and the
verdicts of different juries will differ widely upon similar
facts.”).
¶12
Moreover,
although
Arizona
cases
generally
prohibit
juries from arbitrarily rejecting undisputed evidence, we have
long
recognized
witness’s
that
a
uncontradicted
jury
may
testimony
appropriately
for
discredit
various
including the witness’s personal interest in the case.
8
a
reasons,
Estate
of Reinen v. N. Ariz. Orthopedics, Ltd., 198 Ariz. 283, 287
¶ 12,
9
P.3d
compelled
314,
to
318
(2000)
believe
the
(“The
court
uncontradicted
or
jury
is
not
evidence
of
an
interested party.”); In re Wainola’s Estate, 79 Ariz. 342, 346,
289
P.2d
“bound
692,
to
695
(1955)
accept
as
(stating
true
the
that
a
testimony
factfinder
of
is
not
disinterested
witnesses unless in the whole case there are no circumstances or
matters which cast suspicion upon or impair its accuracy”).
¶13
of
White and Sedillo thus erred in concluding as a matter
law
properly
that,
in
a
disregard
wrongful
the
death
testimony
case,
of
a
“[a]
jury
witness,
may
not
even
an
interested one, without some reason to do so that is apparent
from the record.”
White, 216 Ariz. at 141 ¶ 29, 163 P.3d at
1091; see also Sedillo, 153 Ariz. at 482-83, 737 P.2d at 138182.
¶14
In
this
case,
the
jury
might
have
accepted
the
children’s testimony about their loss, but nonetheless decided,
given all the circumstances, that awarding no damages was “fair
and just.”
Moreover, the children’s damage claims are based
solely on their own testimony.
The children are interested
witnesses, and the jury may thus have discounted their testimony
on that ground.
The jury verdict awarding no damages to the
children was not impermissible as a matter of law.
9
III.
¶15
The children argued in their new trial motion that the
evidence does not support the verdict of zero damages.
As the
court of appeals noted, although the verdict is not defective on
its face, the trial court may nonetheless determine, in its
discretion, that a new trial is appropriate.
When ruling on a
motion for new trial, a trial court must “pass on the weight of
the evidence” to determine if “substantial justice has not been
done between the parties.”
Smith v. Moroney, 79 Ariz. 35, 38,
282 P.2d 470, 472 (1955) (internal quotation marks omitted).
In
that role, the trial judge sits as a “thirteenth juror (the
ninth juror in a civil case),” Hutcherson v. City of Phoenix,
192
Ariz.
51,
55
¶
23,
961
P.2d
449,
453
(1998)
(internal
quotation marks omitted), and has broad discretion to find the
verdict inconsistent with the evidence and grant a new trial.
See Begay v. City of Tucson, 148 Ariz. 505, 507-08, 715 P.2d
758, 760-61 (1986) (concluding that trial court did not abuse
its discretion in ordering a new trial for decedent’s child, who
was awarded no damages for wrongful death, although decedent’s
parents obtained damage award).
¶16
White aptly observed that appellate courts are not in
the best position to distinguish between verdicts in which the
jury acted arbitrarily or appropriately.
10
216 Ariz. at 140 ¶ 22,
163 P.3d at 1090.
hear
the
witnesses,
But having had the opportunity to see and
the
trial
judge,
as
the
“ninth
juror,”
guards against arbitrary verdicts by granting motions for a new
trial when appropriate.
See City of Glendale v. Bradshaw, 114
Ariz. 236, 238, 560 P.2d 420, 422 (1977) (determining whether
verdict
is
against
the
weight
of
the
evidence
“is
uniquely
within the province of the trial judge”).
¶17
Contrary to the children’s argument, the trial court
did not address on the merits the children’s motion for a new
trial under Rule 59(a).
Instead, relying on White and Sedillo,
the court concluded that the children waived the argument by not
objecting under Rule 49(c) before the jury was discharged.1
In
light of our disapproval of those two cases, we remand to the
superior court to consider, in the first instance, whether the
award of zero damages was insufficient or not justified by the
evidence.
See State v. Caraveo, 222 Ariz. 228, 233 ¶ 23, 213
P.3d 377, 382 (App. 2009) (remanding to the superior court to
decide issue under proper standard “rather than deciding the
issue in the first instance on the record before us”).
We
1
Because the jury’s award of zero damages to the children
was neither “defective” nor “[un]responsive to the issue
submitted to the jury,” the court of appeals correctly concluded
that “Rule 49(c) is not implicated, and the waiver issue is
moot.” Walsh, 227 Ariz. at 356 ¶ 8, 258 P.3d at 174.
11
express no opinion on whether a new trial is appropriate.2
IV.
¶18
For the reasons stated, we overrule White and Sedillo,
vacate the opinion of the court of appeals, reverse the superior
court’s order denying the children’s motion for a new trial, and
remand the case for that court to consider the motion on its
merits.
_____________________________________
A. John Pelander, Justice
CONCURRING:
_____________________________________
Rebecca White Berch, Chief Justice
_____________________________________
Andrew D. Hurwitz, Vice Chief Justice
_____________________________________
W. Scott Bales, Justice
_____________________________________
Robert M. Brutinel, Justice
2
The children note that the original trial judge has
retired.
That judge, however, may be recalled to consider the
motion if he agrees to do so.
See Ariz. Const. art. 6, § 20;
see also Kelley v. State, 637 So. 2d 972, 973, 977 (Fla. App.
1994).
If he is not available, the superior court should
nonetheless consider the motion in the first instance.
12
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