Walsh v. Advanced Cardiac Specialists Chartered

Decision Date13 April 2012
Docket NumberNo. CV–11–0198–PR.,CV–11–0198–PR.
Citation229 Ariz. 193,632 Ariz. Adv. Rep. 23,273 P.3d 645
PartiesElizabeth 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.
CourtArizona Supreme Court


Copple & Copple PC by Steven D. Copple, S. Christopher Copple, and Law Office of Scott E. Boehm PC by Scott E. Boehm, Phoenix, Attorneys for Elizabeth Walsh, Annette Forrester, Scott Walsh, Jerome Walsh, Steven Walsh, and Lisa Cline.

Jardine Baker Hickman & Houston PLLC by Neil C. Alden, Curtis M. Bergen, and Jennings Strouss & Salmon PLC by John J. Egbert, Phoenix, Attorneys for Advanced Cardiac Specialists Chartered.

Snell & Wilmer LLP by Barry D. Halpern, Sara J. Agne, Phoenix, Attorneys for Amicus Curiae Arizona Medical Association.Humphrey & Petersen PC by Andrew J. Petersen, Tucson, Attorney for Amicus Curiae Arizona Association of Defense Counsel.


PELANDER, 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.


¶ 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), 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). 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).


¶ 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 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).

¶ 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 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 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 a...

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