This case was argued on November 19, 2020. The Arizona Supreme Court begins:

“This case requires us to clarify the standard of proof applicable to establishing a prima facie case for punitive damages necessary to justify the discovery of a defendant’s financial information. We hold that to make such a showing in a negligence case, a plaintiff must establish that there is a reasonable likelihood that the punitive damage claim will be submitted to the jury. We also hold that a punitive damage claim will be submitted to the jury only where there is proof that the defendant’s conduct was either intended to cause harm, motivated by spite or ill will, or outrageous, in which the defendant consciously pursued a course of conduct knowing that it created a substantial risk of significant injury to others.”

This looks like the Arizona Recommended Jury Instruction which has been used for many years. The problem with the instruction has been deciphering what it means to have “consciously pursued a course of conduct knowing that it created a substantial risk of significant injury to others.” The Arizona Supreme Court clarifies the punitive damage standard is not met by evidence of cumulative negligent acts, gross negligence, or even reckless indifference. Most times, the so-called “evil mind” is shown by intentional wrongful conduct or criminal conduct. In a negligence case, outrageous conduct is required. The court explains it will be a rare negligence case where this standard is met. “Although it is enough that the defendant had reason to know of the facts creating a substantial risk, it is not enough that a defendant had reason to appreciate the severity of the risk; the defendant must have actually appreciated the severity of the risk before consciously disregarding it.” Id. at ¶ 25. That standard is not met in this case where the defendant was driving a semi-truck too fast, on wet roads, with the Jake Brake engaged, while on cruise control, talking to his daughter on the phone, etc.

While the opinion is helpful, one expects better guidance. Referring to precedent, emphasizing the “outrageous” conduct required, and reminding us of subjectivity are fine points, but look at the floundering by trial courts and the court of appeals over the past several years. This was a missed opportunity to replace a vague standard with something better.