Ariz. SC: Jury may award no damages in wrongful death suits

Jessica M. Karmasek Apr. 18, 2012, 12:25pm


PHOENIX (Legal Newsline) - The Arizona Supreme Court ruled Friday that a jury may award no damages in a wrongful death lawsuit, even if the claimants' trial testimony on damages is unopposed, if it deems that award to be "fair and just."

Jerome and Elizabeth Walsh, who resided in Minnesota, lived in Arizona in the winters.

Jerome underwent heart surgery in 2003.

He became sick while in Arizona the next winter and was treated by physicians employed by Advanced Cardiac Specialists Chartered, or ACS.

After Jerome returned to Minnesota, doctors determined that his replacement valve was infected. He died a day after being admitted to a Minnesota hospital.

Elizabeth and the couple's four adult children then filed a wrongful death suit 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 during its closing arguments did not question the damage testimony.

The jury found in favor of Elizabeth and the children, awarding $1 million to Elizabeth, but noted "0" on the verdict form in the spaces designated for each child's damages.

The children moved for a new trial, arguing insufficient damages, contending the verdict was not justified by the evidence.

The Maricopa County Superior Court determined that the verdict was "internally inconsistent and not responsive" because "the liability finding required an award at least of uncontroverted damages." However, the court denied the motion for a new trial.

The state Court of Appeals, Division One, affirmed, but on different grounds.

The appeals court held that a jury in a wrongful death action may award zero damages -- even absent contradictory evidence on damages -- "because the burden is on a plaintiff to prove damages, that burden does not shift, and a jury is free to disregard the evidence that a plaintiff produces."

The court also found the waiver issue moot, and remanded the case for the superior court to consider the children's motion for a new trial.

The state's high court, in its 12-page ruling, vacated the appeals court's opinion, reversed the superior court's order denying the children's motion for a new trial and remanded the case for that court to consider the motion on its merits.

Justice A. John Pelander, who authored the Court's opinion, explained that wrongful death damages are statutorily limited to injuries "resulting from the death," 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.

However, damages are not an essential element of a statutory wrongful death claim, the justice pointed out.

Because the jury may award whatever amount "it deems fair and just," the jury is not statutorily required to award any compensation, he explained.

"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," Pelander wrote.

"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."

He continued, "The jury verdict awarding no damages to the children was not impermissible as a matter of law."

The Court said the superior court will consider whether the award of zero damages was insufficient or not justified by the evidence.

It expressed no opinion on whether a new trial is appropriate.

From Legal Newsline: Reach Jessica Karmasek by email at

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