Soto v. Sacco, __Ariz. Adv. Rep. __ No. CV-16-0136-PR (July 13, 2017) (J. Lopez)

TRIAL COURT HAS DISCRETION UNDER RULE 59(a)&(i) TO ISSUE REMITTITUR OR ADDITUR OF JURY VERDICT IF IT ADEQUATELY STATES THE GROUNDS AND EXPLAINS ITS RULING WITH SUFFICIENT PARTICULARITY TO AVOID SPECULATION AS TO ITS BASIS OR APPELLEE ESTABLISHES THE TRIAL COURT RULING WAS SUPPORTED BY SUBSTANTIAL EVIDENCE AND NOT AN ABUSE OF DISCRETION

Plaintiffs were passengers in a taxi cab when the driver negligently caused a collision resulting in injuries. Plaintiff sued the cab driver and cab company. Negligence and respondeat superior were admitted and A jury trial proceeded on damages only. 

Michael Soto sustained multiple fractures to his dominant arm and underwent surgery to permanently implant a plate and screws to stabilize it. The Sotos testified that Michael experienced significant pain and emotional distress since the accident, preventing him  from participating in physical activities he previously enjoyed.   Michael's treating physician, however, placed no limitations on his activities and told him to use his arm normally, using pain as a guide. Past medical expenses were $40,538.40 and there was no claim for future medical care nor lost wages.

At trial, plaintiffs' counsel urged the jury to award $725,000 to Michael while the defense suggested $90,000 to $100,000. The jury awarded Michael $700,000 and his wife $40,000.  Defendants moved pursuant to Arizona Rule of Civil Procedure 59(a)(1), (5), (7) and (8), and Rule 59(i)* that Michael's award be reduced to no more than $350,000.  The trial court found Michael's award “excessive and not supported by the evidence” granting a remittitur and reducing the award  to $250,000 under Rule 59(i). The plaintiffs rejected the remittitur and appealed from the new trial order which became effective upon the rejection of the remittitur.

The Arizona Court of Appeals affirmed the trial court finding that trial court was not required to specify with particularity the grounds for a remittitur or new trial as required by Rule 59(m).  The Arizona Supreme Court accepted the plaintiffs' petition for review and reversed the court of appeals finding that rule 59(m) does indeed require the trial court specify with particularity the grounds and reasons for its decision to grant a new trial, remittitur or additur. Where the trial court fails to do this appellee may still sustain the trial court's decision by showing the decision was supported by “substantial evidence.”

Trial judges should be very circumspect about substituting their judgment for that of the jury's yet the trial judge serves as a “13^th juror” and has discretion to protect  against unjust verdicts unsupported by the evidence. The trial judge should not disturb an award unless “firmly convinced it is inadequate or excessive and is contrary to the weight of the evidence.” Believing the award is not “reasonable” in and of itself is not enough. A new trial and not remittitur is the proper remedy for a verdict the trial court finds “outrageous, shocking,  flagrant or the result of passion or prejudice.” Remittitur and additur are available to correct awards that are “exaggerated.”

When granting a remittitur or additur the trial court is required under Rule 59(m) to state the grounds and rationale with sufficient particularity that the parties and appellate courts can understand the basis for the decision. When it does this the appellate court will generally defer to the trial court. When it does not, it becomes incumbent upon the appellee  to convince the appellate court the trial court's decision was supported by “substantial evidence and did not constitute an abuse of discretion.”

Here while the trial court failed to state its grounds for remittitur with particularity, merely reciting the standards set forth in the rule, the appellee met the standard here. Appellees submission of jury verdict research in other cases to the court, while “marginally relevant” is permissible.  

Finally, remittitur and additur do not violate article 2, section 23,  of the Arizona Constitution. The Constitution protects the right to jury trial but does not prohibit the trial court from reducing or increasing an award. Additur and remittitur were available to trial courts in Arizona before statehood.