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Ahmad v. State

Court of Appeals of Arizona, First Division

July 12, 2016

SHUJA SAYED AHMAD and MARGARET S. AHMAD, surviving parents of ALEXANDER SAYED AHMAD, deceased, Plaintiffs/Appellants,
STATE OF ARIZONA, a body politic, Defendant/Appellee.

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

          Treon & Aguirre, PLLC, Phoenix By Richard T. Treon Co-counsel for Plaintiffs/Appellants

          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

          Presiding Judge Peter B. Swann delivered the opinion of the court, in which Judge Lawrence F. Winthrop and Judge Donn Kessler joined.


          SWANN, Judge.

         ¶1 Shuja Sayed Ahmad and Margaret S. Ahmad appeal from the trial court's order of remittitur or conditional new trial on damages only, which reduced a jury's damage award arising from the wrongful death of their son. A.R.S. § 12-613 provides that in wrongful death cases, "the jury shall give such damages as it deems fair and just." We hold that this broad provision requires utmost deference to the jury's sense of fairness, and remittitur in such cases must be based upon specific findings demonstrating that no reasonable jury could have reached the verdict based on the evidence presented. The court made no such findings here, and we reverse.


         ¶2 On December 5, 2007, the Ahmads' son, Alex, was killed when the vehicle driven by a suspect pursued by law enforcement officers crossed the center line of a surface street and struck Alex's car.

         ¶3 The chase began after a bank robbery in Tempe. Law enforcement from Tempe, Mesa, Chandler and the Department of Public Safety pursued the suspect. Because the suspect was driving more than 100 mph on surface streets, Tempe police requested all units to slow down "so we don't have any accidents." A Mesa officer also asked dispatch to request that the other agencies turn off their lights and sirens, so they would not alert the suspect to their presence and cause him to flee. This message did not get relayed to DPS officers. When DPS Officer Phillips saw the suspect's car pass his location, he joined the pursuit on the highway, and then followed the suspect onto a surface street where the suspect accelerated to 113 mph. The suspect then crossed the center line and struck Alex's car, killing both of them.

         ¶4 The Ahmads sued the State of Arizona for wrongful death.[1] They presented evidence at trial that DPS was negligent because the pursuit was unnecessary and the dispatchers failed to communicate necessary information to DPS units. The state presented evidence that the suspect intentionally struck Alex's car to avoid capture.

         ¶5 The state objected several times that the Ahmads' counsel improperly asked the jury to "send a message" to the state, urging them to consider exemplary and punitive damages when only compensatory damages were permitted. It also moved the court to strike the Ahmads' counsel's opening statement, give an additional admonition to the jury about permitted damages, and instruct the Ahmads' counsel not to ask the jury to "send a message" during closing arguments. The court declined to instruct the Ahmads' counsel on what arguments he could make during closing but agreed to consider the state's objections on a statement-by-statement basis. The state did not object during the plaintiffs' closing.[2] The court properly instructed the jury on compensatory damages only, but declined to give any additional instructions on damages. And it denied the motion to strike the Ahmads' counsel's closing statement from the record.

         ¶6 The jury entered a verdict in favor of the plaintiffs, awarding them $30 million in damages, and finding the state 5% at fault in Alex's death. The state filed a motion for a new trial on damages or alternatively a remittitur, arguing that the damages were clearly excessive. The state again contended that the plaintiffs' counsel had led the jury improperly to consider punitive or exemplary damages and that the jury had improperly calculated damages based on the value of Alex's life instead of the harm done to his parents. The state also argued that because of the Ahmads' "strength and resilience" in handling their son's death, they presented "no evidence under which the jury could have properly found that Plaintiffs' compensable injuries were so exceptional that they justified a verdict of $30 million."

         ¶7 The Ahmads countered with a conditional motion for a new trial on all issues, arguing that if the court granted the remittitur and a new trial on damages, the issues of liability and damages were so intertwined that a trial on damages only would be unfair.[3] The court granted the remittitur, reducing the amount of damages to $10 million, thereby reducing the state's responsibility from $1.5 million ...

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