                                   IN THE
              ARIZONA COURT OF APPEALS
                                DIVISION ONE


SHUJA SAYED AHMAD and MARGARET S. AHMAD, surviving parents
   of ALEXANDER SAYED AHMAD, deceased, Plaintiffs/Appellants,

                                       v.

         STATE OF ARIZONA, a body politic, Defendant/Appellee.

                            No. 1 CA-CV 14-0664
                              FILED 11-13-2018


           Appeal from the Superior Court in Maricopa County
                          No. CV2008-030707
               The Honorable David O. Cunanan, Judge

                      REVERSED AND REMANDED


                                  COUNSEL

Treon & Aguirre, PLLC, Phoenix
By Richard T. Treon

Treon & Shook, PLLC, Phoenix
By Daniel B. Treon
Co-Counsel for Plaintiffs/Appellants

Arizona Attorney General’s Office, Tucson
By Robert R. McCright
Counsel for Defendant/Appellee
                          AHMAD v. STATE
                          Opinion of the Court



                                OPINION

Presiding Judge Peter B. Swann delivered the opinion of the court, in which
Judge Lawrence F. Winthrop and Chief Judge Samuel A. Thumma joined.


S W A N N, Judge:

¶1           This is an appeal from an order of remittitur and conditional
new trial on the jury’s damages award in a wrongful death action. We
reversed and remanded in Ahmad v. State (“Ahmad I”), 240 Ariz. 380 (App.
2016). The supreme court vacated our decision in Ahmad I and remanded
the case to us for reconsideration in view of Soto v. Sacco, 242 Ariz. 474
(2017). Applying the law of remittitur as articulated in Soto, we again
reverse because the superior court failed to state with particularity the
grounds for its order, and the record does not reveal substantial evidence
to support the order. We remand for entry of judgment on the jury’s
verdict.

                FACTS AND PROCEDURAL HISTORY

¶2           During a pursuit by state and city law enforcement, a criminal
suspect’s vehicle struck and killed Shuja and Margaret Ahmad’s son, Alex.
The Ahmads brought a wrongful death action against the state on the
theory that the pursuit was unnecessary and dispatchers failed to
communicate essential information.

¶3            The jury returned a verdict in favor of the Ahmads, awarding
them $30 million in damages and finding the state 5% at fault for Alex’s
death. The state moved for a remittitur or a new trial on damages. The
state argued that the jury’s award included unavailable punitive and
compensatory damages. The superior court granted the state’s motion,
reducing the damages award to $10 million, thereby reducing the state’s
responsibility from $1.5 million to $500,000, and granted a conditional new
trial on damages only. The court held:

             While courts generally loathe to alter a jury award,
      Rule 59 of the Arizona Rules of Civil Procedure does permit a
      verdict, decision, or judgment to be vacated and a new trial
      granted if a damages award is excessive or insufficient. Based
      upon the evidence presented at trial and the damages



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                             Opinion of the Court

       recoverable in this action, the Court finds that the thirty
       million dollar award was excessive. Although the award by
       the jury was excessive, the Court acknowledges the findings
       of the jury. Based upon the evidence presented at trial, the
       Court finds that the reasonable value of damages is ten
       million dollars. Although this amount is on the high side of a
       reasonable and just damages amount, based upon the facts
       and law in this case and in deference to the jury’s damages
       decision, the Court finds this amount appropriate.

¶4             The court denied the Ahmads’ motion for a complete new
trial on all issues and their motion for reconsideration, and, because the
Ahmads declined to accept the reduced damages amount, ultimately
ordered a new trial on damages. The Ahmads timely appealed, and we
reversed and remanded in Ahmad I. We now reconsider that decision under
Soto.

                                DISCUSSION

¶5             Ariz. R. Civ. P. (“Rule”) 59 authorizes the superior court,
when it finds the jury’s damages award excessive, to grant a new trial
conditioned on the adversely affected party’s rejection of a reduced
damages award. Rule 59(f)(1)(A).1 As Soto held, the court thereby “plays a
role akin to a ‘thirteenth juror’ (a ninth juror in a civil case)”2 and serves the
“indispensable function” of acting as “the primary buffer against unjust
verdicts.” 242 Ariz. at 478, ¶ 8 (citation omitted); see State v. Fischer,
242 Ariz. 44 (2017) (discussing consideration of motions for new trial by the
superior court and on appeal). But the court “should be circumspect in
interfering with a jury verdict by carefully and sparingly exercising its
discretion to reduce . . . a jury’s damage award.” Soto, 242 Ariz. at 477–78,
¶ 7. The court “may not simply substitute its judgment for the jury’s.” Id.
at 477, ¶ 7. Remittitur is proper only when the court “is firmly convinced”
that the verdict “reflects an exaggerated measurement of damages” and “is



1       We cite the current version of the Rule because no changes material
to this decision have been made since the 2014 trial. Compare Ariz. R. Civ.
P. 59(f), (i) (2018) with Ariz. R. Civ. P. 59(i), (m) (2014).

2      Soto’s analogy must not, of course, be read to suggest that the juror-
unanimity requirement of criminal cases pertains to civil trials. See Ariz.
Const. art. 2, § 23; A.R.S. § 21-102.



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                            Opinion of the Court

contrary to the weight of the evidence.”3       Id. at 478, ¶¶ 8–9 (citation
omitted).

¶6             Soto held that the jury has no more discretion in wrongful
death than personal injury actions, and that the foregoing remittitur
standard is identical in both categories of cases. Id. at 481, ¶¶ 18–19. Soto
further held that the superior court must state with particularity the
grounds for a remittitur order. Id. at 479, ¶¶ 11–12 (construing materially
similar provisions of 2016 version of Rule). To satisfy the particularity
requirement, the court must do more than merely quote or paraphrase the
Rule—the court must “describe why the jury award is too high or low” in
“sufficient detail to apprise the parties and appellate courts of the specific
basis for the court’s ruling so that they may avoid speculation.” Id. at 480,
¶¶ 13–14. In the absence of such a description, an appellee bears the burden
to show that the order “was supported by substantial evidence and did not
constitute an abuse of discretion.” Id. at ¶ 15.

¶7             Here, the superior court recited the Rule and concluded,
without elaboration, that the jury’s award was excessive and should be
reduced by two-thirds. In doing so, the court failed to satisfy the
particularity requirement as articulated in Soto. Further, the state has not
offered substantial evidence to support the reduced award, and we reject
the state’s arguments that we must nonetheless affirm.

¶8            The state first contends that the jury verdict was excessive
because it was based on noneconomic damages alone. But the law neither
requires that damages in wrongful death actions include pecuniary harm,
nor imposes constraints on awards that lack an economic component.
Wrongful death is a statutory cause of action, Walsh v. Advanced Cardiac
Specialists Chartered, 229 Ariz. 193, 196, ¶¶ 7–8 (2012), and the statutory
scheme provides “a very broad base for the measure of damages,” City of
Phoenix v. Whiting, 10 Ariz. App. 189, 196 (App. 1969). A.R.S. § 12-613
provides that

       [i]n an action for wrongful death, 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



3      When the court finds that “the damage award is tainted by ‘passion
or prejudice,’ or is ‘shocking[ly] or flagrantly outrageous,’” the court must
order a new trial without a remittitur option. Soto, 242 Ariz. at 478, ¶ 9.


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                            Opinion of the Court

       or aggravating circumstances attending the wrongful act,
       neglect or default.

A survivor’s “injuries ‘resulting from the death’ . . . 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.” Walsh, 229 Ariz. at 196, ¶ 8. The Ahmads presented
considerable undisputed evidence that Alex’s death caused them to suffer
significant and profound emotional distress and a loss of companionship
and comfort. Multiple witnesses testified that Alex shared a close, loving,
and mutually supportive relationship with the Ahmads, and that his death
caused them acute and continuing anguish. The “[t]ranslation into dollars
of the loss of companionship, affection, and society, and the anguish the
parents experienced as a result of their [child]’s death [wa]s peculiarly the
jury’s function.” Hernandez v. State, 128 Ariz. 30, 32 (App. 1980). And
nothing in the amount of the jury’s award suggests that the jury exceeded
its authority or acted out of passion or prejudice. Indeed, the $30 million
sum for the two parents, combined with the attribution of 5% of the fault to
the state, suggests that the verdict was the result of a temperate deliberative
process.

¶9             The state nonetheless contends that a reduction was necessary
because the Ahmads “requested only $10 million each.” As an initial
matter, the state’s characterization of the Ahmads’ position is factually
incorrect—plaintiffs’ counsel stated in closing argument that valuation of
the Ahmads’ damages was dependent on the jurors’ “collective
wisdom . . . in coming up with whatever you think is fair and just
compensation,” and he expressed that he did not “think a verdict of anything
less than $10 million per parent is fair and just compensation.” (Emphasis
added.) Moreover, even if the Ahmads had requested a certain sum, the
jury would not have been limited by that request. The jury’s authority to
award “such damages as it deems fair and just” is not dependent on parties’
damages estimations. See A.R.S. § 12-613.

¶10           With respect to the state’s contentions that the jury was
necessarily influenced by references to unavailable categories of damages,
we acknowledge that plaintiffs’ counsel potentially implicated punitive
damages by suggesting that the jury was tasked with preventing future
deaths. See A.R.S. § 12-820.04 (punitive damages unavailable against public
entities and public employees acting within scope of employment). But the
court considered the state’s objection to the remarks (which objection was
raised both before and after the Ahmads’ closing argument), and
determined that the jury instructions adequately limited the jury to


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                             Opinion of the Court

compensatory damages. In view of that ruling, we are unpersuaded by the
state’s supposition that the court concluded in the remittitur order, by its
reference to “the damages recoverable in this action,” that the jury awarded
punitive damages. Moreover, we hold that the jury was properly instructed
that it could award damages for “[t]he loss of love, affection,
companionship, care, protection, and guidance since the death and in the
future,” and “[t]he pain, grief, sorrow, anguish, stress, shock, and mental
suffering already experienced, and reasonably probable to be experienced
in the future.” See supra ¶ 8. We presume that the jury followed the
instructions, Elliott v. Landon, 89 Ariz. 355, 357 (1961), and the jury’s conduct
does not suggest otherwise.

¶11            Finally, we are unpersuaded by the state’s contention that the
damages were excessive in comparison to verdicts in other cases. Soto held
that comparative-verdicts analyses are “only marginally relevant and the
trial court should not treat other damage awards as conclusive in assessing
whether the jury made a just award,” because “cases may be unique and
turn on fact-intensive determinations, and juries may view similar cases
differently.” 242 Ariz. at 482, ¶ 22. Even if we assume that the state’s
comparisons have some relevance, standing alone they are insufficient to
establish justification for a remittitur.

¶12           We again conclude that the superior court’s remittitur order
constituted an abuse of discretion.

                               CONCLUSION

¶13          We reverse the superior court’s remittitur and remand for
entry of judgment on the jury’s verdict




                            AMY M. WOOD • Clerk of the Court
                            FILED: AA




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