Walsh v. Advanced Cardiac Specialists Chartered

SUPREME COURT OF ARIZONA
En Banc

ELIZABETH WALSH, surviving wife ) Arizona Supreme Court
of JEROME WALSH, deceased; and ) No. CV-11-0198-PR
ANNETTE FORRESTER, SCOTT WALSH, )
STEVEN WALSH, and LISA CLINE, ) Court of Appeals
surviving children of JEROME ) Division One
WALSH, deceased, ) No. 1 CA-CV 09-0751
)
Plaintiffs/Appellants, ) Maricopa County
) Superior Court
v. ) No. CV2006-003676
)
ADVANCED CARDIAC SPECIALISTS )
CHARTERED, )
) O P I N I O N
Defendant/Appellee. )
)
__________________________________)

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 Phoenix
By Steven D. Copple
S. Christopher Copple

And

LAW OFFICE OF SCOTT E. BOEHM PC Phoenix
By Scott E. Boehm
Attorneys for Elizabeth Walsh, Annette Forrester, Scott
Walsh, Jerome Walsh, Steven Walsh, and Lisa
Cline

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JARDINE BAKER HICKMAN & HOUSTON PLLC Phoenix
By Neil C. Alden
Curtis M. Bergen

And

JENNINGS STROUSS & SALMON PLC Phoenix
By John J. Egbert
Attorneys for Advanced Cardiac Specialists Chartered

SNELL & WILMER LLP Phoenix
By Barry D. Halpern
Sara J. Agne
Attorneys for Amicus Curiae Arizona Medical Association

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, are

entitled to a new trial on damages as a matter of law. 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.

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 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 infection. At trial, Elizabeth and each of the

children testified extensively about their warm 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 The children moved for a new trial under Rule

59(a)(5), arguing insufficient damages, and Rule 59(a)(8),

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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 The court of appeals affirmed, but on different

grounds. 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 decision to disregard a witness’s

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).

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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. Id. at 356 ¶ 8, 363 ¶ 34, 258 P.3d at 174, 181.

¶6 We granted review because the opinion below conflicts

with White and Sedillo, and the issue presented is one of

statewide importance. See Ariz. R. Civ. App. P. 23(c)(3). 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). England created such an action by statute in 1846, and

most 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

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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.” A.R.S.

§ 12-611. 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.” A.R.S. § 12-613.

¶8 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 injuries

proximately caused by the defendant’s negligence. Gipson v.

Kasey, 214 Ariz. 141, 143 ¶ 9, 150 P.3d 228, 230 (2007). In

contrast, wrongful death damages are statutorily limited to

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).

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¶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). Thus, in a negligence case, a verdict in

favor of the plaintiff awarding zero damages is internally

inconsistent. See Gipson, 214 Ariz. at 143 ¶ 9, 150 P.3d at 230

(negligence claim requires proof of “actual damages”);

Trustmark, 202 Ariz. at 543 ¶ 38, 48 P.3d at 493. But damages

are not an essential element of a statutory wrongful death

claim. 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 close, loving

relationship with their father was uncontested. 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

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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.” See Hernandez v. State, 128 Ariz. 30, 32, 623 P.2d 819,

821 (App. 1980) (“Translation into dollars of the loss of

companionship, affection, and society, and the anguish 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 is difficult to put a

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

facts.”).

¶12 Moreover, although Arizona cases generally prohibit

juries from arbitrarily rejecting undisputed evidence, we have

long recognized that a jury may appropriately discredit a

witness’s uncontradicted testimony for various reasons,

including the witness’s personal interest in the case. Estate

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of Reinen v. N. Ariz. Orthopedics, Ltd., 198 Ariz. 283, 287

¶ 12, 9 P.3d 314, 318 (2000) (“The court or jury is not

compelled to believe the uncontradicted evidence of an

interested party.”); In re Wainola’s Estate, 79 Ariz. 342, 346,

289 P.2d 692, 695 (1955) (stating that a factfinder is not

“bound to accept as true the testimony of disinterested

witnesses unless in the whole case there are no circumstances or

matters which cast suspicion upon or impair its accuracy”).

¶13 White and Sedillo thus erred in concluding as a matter

of law that, in a wrongful death case, “[a] jury may not

properly disregard the testimony of a witness, 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 1381-

82.

¶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.

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 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. 216 Ariz. at 140 ¶ 22,

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163 P.3d at 1090. But having had the opportunity to see and

hear the witnesses, 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.

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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.

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