Torts--Jury May Award Zero Damages to Wrongful Death Beneficiary

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Walsh v. Adv. Card. Spec. Chart., 229 Ariz. 193, 273 P.3d 645 (April 13, 2012) (J. Pelander)

EVEN WHERE WRONGFUL DEATH CLAIMANTS' TRIAL TESTIMONY IS UNCONTROVERTED JURY MAY FIND LIABILITY YET AWARD NO DAMAGES IF IT DEEMS THE RESULT FAIR AND JUST/TRIAL COURT MAY GRANT NEW TRIAL IF IT DETERMINES THE AWARD IS INSUFFICIENT OR UNSUPPORTED BY THE EVIDENCE

Plaintiffs' decedent died of an infected heart valve. The decedent's wife and four adult children sued the defendant physicians for failure to diagnose and treat the infection timely. At trial each child testified at length concerning their warm and close relationship with their father and the adverse effects his death has had on them. This evidence was uncontroverted. The defense did not cross examine on this subject, offer contradictory evidence or argue the damage issue in closing. The jury found liability in favor of the wife and children and awarded the wife $1 million but put "0" on the line next to each child's name. Plaintiff moved for a new trial arguing the damage award was not supported by the evidence and was insufficient. The trial court found the jury award inconsistent with the evidence but denied the motion for new trial on the grounds the plaintiffs did not timely raise this issue before the jury was discharged. The Arizona Court of Appeals affirmed finding that the plaintiff has the burden of proving damages and the jury is free to disregard the evidence plaintiff produces. The Arizona Supreme Court reversed and remanded.

The Supreme Court noted that a wrongful death action did not exist at the common law but was created by statute. In a common law negligence action a necessary element of the tort is damage caused by the negligence. However, in a wrongful death action damages are not a necessary element of the statutorily created remedy because the jury is only required to award those damages it deems "fair and just;" the jury is not required to award any damages if it deems that result "fair and just." Likewise, while jurors may not arbitrarily reject undisputed evidence it may reject even uncontradicted testimony for a variety of reasons. Here the jurors may have discounted the children's testimony based upon the children's interest in the outcome of the case or the jury may have accepted their testimony yet still determined that no damages was a fair and just result.

Further, just as the jury has wide discretion in assessing damages, the trial court has wide discretion in granting a new trial if it finds that "substantial justice has not been done" or that the "verdict is inconsistent with the evidence." Here the trial court improperly denied the motion for new trial based on a failure to raise this issue before the jury was discharged. Thus The Supreme Court remanded the case for a determination on the merits by the trial court as to whether or not a new trial is appropriate.

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