1 

SUPREME COURT OF ARIZONA 

En Banc 

ELIZABETH WALSH, surviving wife ) Arizona Supreme Court 

of JEROME WALSH, deceased; and ) No. CV-11-0198-PR 

ANNETTE FORRESTER, SCOTT WALSH, ) 

STEVEN WALSH, and LISA CLINE, ) Court of Appeals 

surviving children of JEROME ) Division One 

WALSH, deceased, ) No. 1 CA-CV 09-0751 

 ) 

 Plaintiffs/Appellants, ) Maricopa County 

 ) Superior Court 

 v. ) No. CV2006-003676 

 ) 

ADVANCED CARDIAC SPECIALISTS ) 

CHARTERED, ) 

 ) O P I N I O N

 Defendant/Appellee. ) 

 ) 

__________________________________) 

Appeal from the Superior Court in Maricopa County 

The Honorable Thomas Dunevant, III, Judge (Retired) 

The Honorable Dean M. Fink, Judge 

REVERSED AND REMANDED 

________________________________________________________________ 

Opinion of the Court of Appeals Division One 

227 Ariz. 354, 258 P.3d 172 (App. 2011) 

VACATED 

________________________________________________________________ 

COPPLE & COPPLE PC Phoenix 

 By Steven D. Copple 

 S. Christopher Copple 

And 

LAW OFFICE OF SCOTT E. BOEHM PC Phoenix 

 By Scott E. Boehm 

Attorneys for Elizabeth Walsh, Annette Forrester, Scott 

 Walsh, Jerome Walsh, Steven Walsh, and Lisa 

 Cline 
2 

JARDINE BAKER HICKMAN & HOUSTON PLLC Phoenix 

 By Neil C. Alden 

 Curtis M. Bergen 

And 

JENNINGS STROUSS & SALMON PLC Phoenix 

 By John J. Egbert 

Attorneys for Advanced Cardiac Specialists Chartered 

SNELL & WILMER LLP Phoenix 

 By Barry D. Halpern 

 Sara J. Agne 

Attorneys for Amicus Curiae Arizona Medical Association 

HUMPHREY & PETERSEN PC Tucson 

 By Andrew J. Petersen 

Attorney for Amicus Curiae Arizona Association of 

 Defense Counsel 

________________________________________________________________ 

P E L A N D E R, Justice 

¶1 The issue presented is whether wrongful death 

claimants whose trial testimony on damages is uncontroverted, 

but who receive a jury verdict awarding zero damages, are 

entitled to a new trial on damages as a matter of law. We hold 

that a jury may award no compensation in these circumstances if 

it deems that award to be fair and just. Although a new trial 

is not automatically required, the trial court may grant one 

pursuant to Arizona Rule of Civil Procedure 59(a) if it 

determines the award is insufficient or not justified by the 

evidence. 
3 

I. 

¶2 Jerome and Elizabeth Walsh resided in Minnesota and 

wintered in Arizona. Jerome underwent heart surgery in 2003. 

He became ill while in Arizona the next winter and was treated 

by physicians employed by Advanced Cardiac Specialists Chartered 

(ACS). After Jerome returned to Minnesota, doctors determined 

that his replacement valve was infected. Jerome died a day 

after being admitted to a Minnesota hospital. 

¶3 Elizabeth and the couple’s four adult children filed 

this wrongful death action against ACS and its employees, 

claiming they caused Jerome’s death by failing to diagnose and 

treat the infection. At trial, Elizabeth and each of the 

children testified extensively about their warm relationship 

with Jerome and the loss they experienced from his death. This 

testimony was not contested by the defense: the children were 

not cross-examined on the issue, no contradictory evidence was 

presented, and counsel in closing argument did not question the 

damage testimony. The jury found in favor of Elizabeth and the 

children, awarding $1 million to Elizabeth, but noting “0” on 

the verdict form in the spaces designated for each child’s 

damages. 

¶4 The children moved for a new trial under Rule 

59(a)(5), arguing insufficient damages, and Rule 59(a)(8), 
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contending the verdict was not justified by the evidence. 

Citing White v. Greater Arizona Bicycling Association, 216 Ariz. 

133, 163 P.3d 1083 (App. 2007), and Sedillo v. City of 

Flagstaff, 153 Ariz. 478, 737 P.2d 1377 (App. 1987), the trial 

court determined that the verdict was “internally inconsistent 

and not responsive” because “the liability finding required an 

award at least of uncontroverted damages.” But the court denied 

the motion for a new trial, concluding that the children had 

waived the issue under Arizona Rule of Civil Procedure 49(c) by 

not objecting to the inconsistent verdict before the jury was 

discharged. See Trustmark Ins. Co. v. Bank One, Ariz., NA, 202 

Ariz. 535, 543 ¶¶ 38-39, 48 P.3d 485, 493 (App. 2002) (holding 

that plaintiff who failed to object under Rule 49(c) had waived 

argument that new trial was required due to inconsistency of 

jury’s findings for plaintiff without awarding damages in 

negligence action). 

¶5 The court of appeals affirmed, but on different 

grounds. It concluded that “the rule announced in White and 

Sedillo that ‘[t]here must be support in the record, however 

slight, for a jury’s decision to disregard a witness’s 

testimony’ is wrong.” Walsh v. Advanced Cardiac Specialists 

Chartered, 227 Ariz. 354, 360 ¶ 22, 258 P.3d 172, 178 (App. 

2011) (quoting White, 216 Ariz. at 140 ¶ 22, 163 P.3d at 1090). 
5 

Agreeing instead with the White and Sedillo dissents, id. at 356 

¶ 8, 258 P.3d at 174, the court held that a jury in a wrongful 

death action may award zero damages — even absent contradictory 

evidence on damages — “because (1) the burden is on a plaintiff 

to prove damages, (2) that burden does not shift, and (3) a jury 

is free to disregard the evidence that a plaintiff produces.” 

Id. at 360 ¶ 22, 363 ¶ 30, 258 P.3d at 178, 181. Because a 

wrongful death award of zero damages is permissible, the court 

found the Rule 49(c) waiver issue moot and remanded the case for 

the trial court to consider the children’s Rule 59(a) motion for 

a new trial. Id. at 356 ¶ 8, 363 ¶ 34, 258 P.3d at 174, 181. 

¶6 We granted review because the opinion below conflicts 

with White and Sedillo, and the issue presented is one of 

statewide importance. See Ariz. R. Civ. App. P. 23(c)(3). We 

have jurisdiction under Article 6, Section 5(3) of the Arizona 

Constitution and A.R.S. § 12-120.24 (2003). 

II. 

¶7 There was no action for wrongful death at common law. 

In re Lister’s Estate, 22 Ariz. 185, 187, 195 P. 1113, 1113 

(1921). England created such an action by statute in 1846, and 

most states have since enacted wrongful death laws. Id.; 

Summerfield v. Superior Court, 144 Ariz. 467, 470-71, 698 P.2d 

712, 715-16 (1985). Arizona’s statute provides that “[w]hen 
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death of a person is caused by wrongful act, neglect or default, 

. . . the person who . . . would have been liable if death had 

not ensued shall be liable to an action for damages.” A.R.S. 

§ 12-611. The statutory scheme directs that “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 or aggravating circumstances attending the wrongful 

act, neglect or default.” A.R.S. § 12-613. 

¶8 Damages awardable under the wrongful death statutes 

differ in some respects from damages in common-law negligence 

cases. In the latter, damages are based on any injuries 

proximately caused by the defendant’s negligence. Gipson v. 

Kasey, 214 Ariz. 141, 143 ¶ 9, 150 P.3d 228, 230 (2007). In 

contrast, wrongful death damages are statutorily limited to 

injuries “resulting from the death,” § 12-613, which 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, but not the decedent’s own 

pain and suffering. See Summerfield, 144 Ariz. at 472, 698 P.2d 

at 717; Mullen v. Posada Del Sol Health Care Ctr., 169 Ariz. 

399, 400, 819 P.2d 985, 986 (App. 1991). 
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¶9 Damages are an indispensable element of a common-law 

negligence claim. Glaze v. Larsen, 207 Ariz. 26, 29 ¶ 15, 83 

P.3d 26, 29 (2004). Thus, in a negligence case, a verdict in 

favor of the plaintiff awarding zero damages is internally 

inconsistent. See Gipson, 214 Ariz. at 143 ¶ 9, 150 P.3d at 230 

(negligence claim requires proof of “actual damages”); 

Trustmark, 202 Ariz. at 543 ¶ 38, 48 P.3d at 493. But damages 

are not an essential element of a statutory wrongful death 

claim. Because the jury may award whatever amount “it deems 

fair and just,” § 12-613, the jury is not statutorily required 

to award any compensation. See Quinonez ex rel. Quinonez v. 

Andersen, 144 Ariz. 193, 198, 696 P.2d 1342, 1347 (App. 1984) 

(affirming jury award of zero damages in wrongful death case 

when plaintiff, decedent’s husband, had an abusive relationship 

with her). 

¶10 The children acknowledge that a verdict awarding zero 

damages may be appropriate in some wrongful death cases. But 

they contend that they are entitled to a new trial as a matter 

of law, because the testimony about their close, loving 

relationship with their father was uncontested. The children 

cite several cases in which this Court stated that a jury may 

not arbitrarily reject uncontradicted evidence. See O’Donnell 

v. Maves, 103 Ariz. 28, 32, 436 P.2d 577, 581 (1968); Ft. Mohave 
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Farms, Inc. v. Dunlap, 96 Ariz. 193, 198, 393 P.2d 662, 665 

(1964); In re Schade’s Estate, 87 Ariz. 341, 348, 351 P.2d 173, 

178 (1960). 

¶11 Those cases, however, do not involve wrongful death 

claims, in which the jury must subjectively value the 

plaintiff’s damages and award the amount it deems “fair and 

just.” See Hernandez v. State, 128 Ariz. 30, 32, 623 P.2d 819, 

821 (App. 1980) (“Translation into dollars of the loss of 

companionship, affection, and society, and the anguish the 

[survivors] experienced as a result of [the decedent’s] death is 

peculiarly the jury’s function. . . . Each case must be 

considered on its own facts.”); see also Patison v. Campbell, 

337 S.W.2d 72, 75 (Mo. 1960) (“It is difficult to put a 

pecuniary value on human life. The jury has an extraordinarily 

wide discretion in determining the amount of compensation for a 

wrongful death [based on what it deems ‘fair and just’], and the 

verdicts of different juries will differ widely upon similar 

facts.”). 

¶12 Moreover, although Arizona cases generally prohibit 

juries from arbitrarily rejecting undisputed evidence, we have 

long recognized that a jury may appropriately discredit a 

witness’s uncontradicted testimony for various reasons, 

including the witness’s personal interest in the case. Estate 
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of Reinen v. N. Ariz. Orthopedics, Ltd., 198 Ariz. 283, 287 

¶ 12, 9 P.3d 314, 318 (2000) (“The court or jury is not 

compelled to believe the uncontradicted evidence of an 

interested party.”); In re Wainola’s Estate, 79 Ariz. 342, 346, 

289 P.2d 692, 695 (1955) (stating that a factfinder is not 

“bound to accept as true the testimony of disinterested 

witnesses unless in the whole case there are no circumstances or 

matters which cast suspicion upon or impair its accuracy”). 

¶13 White and Sedillo thus erred in concluding as a matter 

of law that, in a wrongful death case, “[a] jury may not 

properly disregard the testimony of a witness, even an 

interested one, without some reason to do so that is apparent 

from the record.” White, 216 Ariz. at 141 ¶ 29, 163 P.3d at 

1091; see also Sedillo, 153 Ariz. at 482-83, 737 P.2d at 1381-

82. 

¶14 In this case, the jury might have accepted the 

children’s testimony about their loss, but nonetheless decided, 

given all the circumstances, that awarding no damages was “fair 

and just.” Moreover, the children’s damage claims are based 

solely on their own testimony. The children are interested 

witnesses, and the jury may thus have discounted their testimony 

on that ground. The jury verdict awarding no damages to the 

children was not impermissible as a matter of law. 
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III. 

¶15 The children argued in their new trial motion that the 

evidence does not support the verdict of zero damages. As the 

court of appeals noted, although the verdict is not defective on 

its face, the trial court may nonetheless determine, in its 

discretion, that a new trial is appropriate. When ruling on a 

motion for new trial, a trial court must “pass on the weight of 

the evidence” to determine if “substantial justice has not been 

done between the parties.” Smith v. Moroney, 79 Ariz. 35, 38, 

282 P.2d 470, 472 (1955) (internal quotation marks omitted). In 

that role, the trial judge sits as a “thirteenth juror (the 

ninth juror in a civil case),” Hutcherson v. City of Phoenix, 

192 Ariz. 51, 55 ¶ 23, 961 P.2d 449, 453 (1998) (internal 

quotation marks omitted), and has broad discretion to find the 

verdict inconsistent with the evidence and grant a new trial. 

See Begay v. City of Tucson, 148 Ariz. 505, 507-08, 715 P.2d 

758, 760-61 (1986) (concluding that trial court did not abuse 

its discretion in ordering a new trial for decedent’s child, who 

was awarded no damages for wrongful death, although decedent’s 

parents obtained damage award). 

¶16 White aptly observed that appellate courts are not in 

the best position to distinguish between verdicts in which the 

jury acted arbitrarily or appropriately. 216 Ariz. at 140 ¶ 22, 
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163 P.3d at 1090. But having had the opportunity to see and 

hear the witnesses, the trial judge, as the “ninth juror,” 

guards against arbitrary verdicts by granting motions for a new 

trial when appropriate. See City of Glendale v. Bradshaw, 114 

Ariz. 236, 238, 560 P.2d 420, 422 (1977) (determining whether 

verdict is against the weight of the evidence “is uniquely 

within the province of the trial judge”). 

¶17 Contrary to the children’s argument, the trial court 

did not address on the merits the children’s motion for a new 

trial under Rule 59(a). Instead, relying on White and Sedillo, 

the court concluded that the children waived the argument by not 

objecting under Rule 49(c) before the jury was discharged.1

 In 

light of our disapproval of those two cases, we remand to the 

superior court to consider, in the first instance, whether the 

award of zero damages was insufficient or not justified by the 

evidence. See State v. Caraveo, 222 Ariz. 228, 233 ¶ 23, 213 

P.3d 377, 382 (App. 2009) (remanding to the superior court to 

decide issue under proper standard “rather than deciding the 

issue in the first instance on the record before us”). We 

                                                           

1

 Because the jury’s award of zero damages to the children 

was neither “defective” nor “[un]responsive to the issue 

submitted to the jury,” the court of appeals correctly concluded 

that “Rule 49(c) is not implicated, and the waiver issue is 

moot.” Walsh, 227 Ariz. at 356 ¶ 8, 258 P.3d at 174. 
12 

express no opinion on whether a new trial is appropriate.2

IV. 

¶18 For the reasons stated, we overrule White and Sedillo, 

vacate the opinion of the court of appeals, reverse the superior 

court’s order denying the children’s motion for a new trial, and 

remand the case for that court to consider the motion on its 

merits. 

 _____________________________________ 

 A. John Pelander, Justice 

CONCURRING: 

_____________________________________ 

Rebecca White Berch, Chief Justice 

_____________________________________ 

Andrew D. Hurwitz, Vice Chief Justice 

_____________________________________ 

W. Scott Bales, Justice 

_____________________________________ 

Robert M. Brutinel, Justice 

                                                           

2

 The children note that the original trial judge has 

retired. That judge, however, may be recalled to consider the 

motion if he agrees to do so. See Ariz. Const. art. 6, § 20; 

see also Kelley v. State, 637 So. 2d 972, 973, 977 (Fla. App. 

1994). If he is not available, the superior court should 

nonetheless consider the motion in the first instance.