This opinion appears to establish that, at least in a wrongful-death case, there can be no remittitur when the damages are strictly emotional.
Plaintiffs’ son was killed when his car was struck by one being chased by DPS officers. The jury awarded $30,000,000; but it also held the state only 5% at fault, resulting in a net award of $1,500,000, so which of those numbers the jury came up with first is interesting speculation. In any event, the state moved for remittitur. The trial court granted it in a rambling minute entry that showed no particular grasp of the law (at least in the part quoted by the opinion) and found that $10,000,000 was “the reasonable value of damages.” Plaintiffs appealed.
The Court of Appeals reverses. It first discusses new trial/remittitur law; this is basically cut-and-paste from other cases. The court seems to be saying that a remittitur order needs to explain why the verdict is exaggerated compared to the evidence, not simply announce a different standard of fairness.
But the court goes on to make clear that this isn’t merely a procedural case. “We discern no lack of evidence to support the damages awarded in this case.” The court doesn’t specify what evidence it discerns to justify $30 million for the loss of an adult son (the opinion neglects to point out that he was an adult). The trial court didn’t find that the verdict was the result of passion or prejudice; the opinion nevertheless feels it appropriate to say that no “such finding would have been supportable.” Having inserted this bit of dictum, the court discerns no reason to explain it.
(Its not entirely clear but one of the defendant’s arguments might have been that the jury improperly applied the damages instruction by awarding something to “send a message,” as Plaintiff’s counsel was allowed to ask it to do, even though punitive damages were not at issue. Or perhaps it wasn’t an argument, as the court doesn’t address it except to suggest, as courts tend to in wrongful-death cases, that the statute’s “fair and just” language covers a multitude of sins.)
The state did definitely argue that the verdict was excessive compared to past wrongful-death verdicts. The court rejects a comparative approach, for various reasons.
First, the idea of using comparisons relies on “a seventy-five-year-old” case. Its hard to know why the court thinks that a criticism since its opinion had earlier relied on a 63-year-old case that in turn relied on, and quoted at length, a 204-year-old case. (Brief style point: A few style guides do still recommend writing out numbers less than 100. Nowadays the limit is more like twenty. But it would be nice to think that the court is actually using a style guide, however antiquated.) Also, another case that did use comparisons (Desert Palm Surgical Group; this opinion never gives a full cite of it and so doesn’t reveal that it came down eighteen months ago) was, we’re told, not similar to this one because it was based on lack of evidence of special damages. (The relevant paragraph in Desert Palm Surgical doesn’t actually mention special damages except perhaps by saying “the verdict in this case . . . simply cannot be reconciled with other Arizona civil jury verdicts, especially given the record before us.”)
Second, “the crude statistical approach . . . is simply at odds with” the statute. There follows a long paragraph that doesn’t mention the statute nor explain why its language precludes comparisons, “crude” or otherwise. Except that, a page or so later, the court tells us that “we read the legislature’s commitment of damages to the jury’s sense of justice as a broad appeal to the jury’s conscience.” And if the jury’s conscience says $300 million? Or $3 billion? Well, at some point even this court would presumably discern passion or prejudice rather than mere conscience, and we will be interested to see it explain some day how and where it discerns the difference. But its analysis does not suggest that there would at any point be a basis for remittitur.
(Another reason why comparative analysis is “unpersuasive” is that “the trial court’s own order” did not use it. Huh? So the wrong approach might have been the right one had the trial court used it?)
For a shorter but more helpful analysis of remittitur, though not in a wrongful-death context, see Desert Palm Surgical, the opinion this court doesn’t quite want to admit it issued last year. That one manages to cite what is, at age 44, still probably the leading case, Creamer v. Troiano.