SHUJA SAYED AHMAD and MARGARET S. AHMAD, surviving parents of ALEXANDER SAYED AHMAD, deceased, Plaintiffs/Appellants,
STATE OF ARIZONA, a body politic, Defendant/Appellee.
from the Superior Court in Maricopa County No. CV2008-030707
The Honorable David O. Cunanan, Judge
& Aguirre, PLLC, Phoenix By Richard T. Treon Co-counsel
& Shook, PLLC, Phoenix By Daniel B. Treon Co-counsel for
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
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
AND PROCEDURAL HISTORY
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.
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.
The Ahmads sued the State of Arizona for wrongful
death. 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.
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. 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.
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."
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. The court granted the remittitur,
reducing the amount of damages to $10 million, thereby
reducing the state's responsibility from $1.5 million ...