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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.Receive FREE Daily Opinion Summaries by Email
SUPREME COURT OF ARIZONA
ELIZABETH WALSH, surviving wife
of JEROME WALSH, deceased; and
ANNETTE FORRESTER, SCOTT WALSH,
STEVEN WALSH, and LISA CLINE,
surviving children of JEROME
ADVANCED CARDIAC SPECIALISTS
Arizona Supreme Court
Court of Appeals
No. 1 CA-CV 09-0751
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)
COPPLE & COPPLE PC
Steven D. Copple
S. Christopher Copple
LAW OFFICE OF SCOTT E. BOEHM PC
Scott E. Boehm
Attorneys for Elizabeth Walsh, Annette Forrester, Scott
Walsh, Jerome Walsh, Steven Walsh, and Lisa
JARDINE BAKER HICKMAN & HOUSTON PLLC
Neil C. Alden
Curtis M. Bergen
JENNINGS STROUSS & SALMON PLC
John J. Egbert
Attorneys for Advanced Cardiac Specialists Chartered
SNELL & WILMER LLP
Barry D. Halpern
Sara J. Agne
Attorneys for Amicus Curiae Arizona Medical Association
HUMPHREY & PETERSEN PC
Andrew J. Petersen
Attorney for Amicus Curiae Arizona Association of
P E L A N D E R, Justice
claimants whose trial testimony on damages is uncontroverted,
entitled to a new trial on damages as a matter of law.
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
determines the award is insufficient or not justified by the
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
After Jerome returned to Minnesota, doctors determined
that his replacement valve was infected.
Jerome died a day
after being admitted to a Minnesota hospital.
Elizabeth and the couple’s four adult children filed
claiming they caused Jerome’s death by failing to diagnose and
with Jerome and the loss they experienced from his death.
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
The jury found in favor of Elizabeth and the
children, awarding $1 million to Elizabeth, but noting “0” on
Citing White v. Greater Arizona Bicycling Association, 216 Ariz.
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
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
It concluded that “the rule announced in White and
Sedillo that ‘[t]here must be support in the record, however
testimony’ is wrong.”
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).
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.
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.
Id. at 356 ¶ 8, 363 ¶ 34, 258 P.3d at 174, 181.
We granted review because the opinion below conflicts
See Ariz. R. Civ. App. P. 23(c)(3).
have jurisdiction under Article 6, Section 5(3) of the Arizona
Constitution and A.R.S. § 12-120.24 (2003).
There was no action for wrongful death at common law.
In re Lister’s Estate, 22 Ariz. 185, 187, 195 P. 1113, 1113
England created such an action by statute in 1846, and
Summerfield v. Superior Court, 144 Ariz. 467, 470-71, 698 P.2d
712, 715-16 (1985).
Arizona’s statute provides that “[w]hen
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.”
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
mitigating or aggravating circumstances attending the wrongful
act, neglect or default.”
A.R.S. § 12-613.
Damages awardable under the wrongful death statutes
differ in some respects from damages in common-law negligence
proximately caused by the defendant’s negligence.
Kasey, 214 Ariz. 141, 143 ¶ 9, 150 P.3d 228, 230 (2007).
injuries “resulting from the death,” § 12-613, which may include
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).
Damages are an indispensable element of a common-law
Glaze v. Larsen, 207 Ariz. 26, 29 ¶ 15, 83
P.3d 26, 29 (2004).
Thus, in a negligence case, a verdict in
See Gipson, 214 Ariz. at 143 ¶ 9, 150 P.3d at 230
Trustmark, 202 Ariz. at 543 ¶ 38, 48 P.3d at 493.
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
The children acknowledge that a verdict awarding zero
damages may be appropriate in some wrongful death cases.
they contend that they are entitled to a new trial as a matter
relationship with their father was uncontested.
cite several cases in which this Court stated that a jury may
not arbitrarily reject uncontradicted evidence.
v. Maves, 103 Ariz. 28, 32, 436 P.2d 577, 581 (1968); Ft. Mohave
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,
Those cases, however, do not involve wrongful death
plaintiff’s damages and award the amount it deems “fair and
See Hernandez v. State, 128 Ariz. 30, 32, 623 P.2d 819,
[survivors] experienced as a result of [the decedent’s] death is
function. . . . Each
considered on its own facts.”); see also Patison v. Campbell,
pecuniary value on human life.
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
juries from arbitrarily rejecting undisputed evidence, we have
including the witness’s personal interest in the case.
of Reinen v. N. Ariz. Orthopedics, Ltd., 198 Ariz. 283, 287
interested party.”); In re Wainola’s Estate, 79 Ariz. 342, 346,
witnesses unless in the whole case there are no circumstances or
matters which cast suspicion upon or impair its accuracy”).
White and Sedillo thus erred in concluding as a matter
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.
children’s testimony about their loss, but nonetheless decided,
given all the circumstances, that awarding no damages was “fair
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.
The children argued in their new trial motion that the
evidence does not support the verdict of zero damages.
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).
that role, the trial judge sits as a “thirteenth juror (the
ninth juror in a civil case),” Hutcherson v. City of Phoenix,
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).
White aptly observed that appellate courts are not in
the best position to distinguish between verdicts in which the
jury acted arbitrarily or appropriately.
216 Ariz. at 140 ¶ 22,
163 P.3d at 1090.
But having had the opportunity to see and
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
within the province of the trial judge”).
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
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
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”).
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.
express no opinion on whether a new trial is appropriate.2
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
A. John Pelander, Justice
Rebecca White Berch, Chief Justice
Andrew D. Hurwitz, Vice Chief Justice
W. Scott Bales, Justice
Robert M. Brutinel, Justice
The children note that the original trial judge has
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.
If he is not available, the superior court should
nonetheless consider the motion in the first instance.