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10 A R I Z O N A AT T O R N E Y M AY 2 0 0 6 w w w. m y a z b a r. o r g

Juries in Arizona were notably more generous in 2005 than in the previous

year, turning in 28 verdicts over $1 million dollars. Every one of this year’s

top 10 verdicts is larger, by a considerable margin, than the verdict in the

corresponding position last year. A particularly vicious double-murder by a

delusional drug addict led to the top recovery of $28 million against a med-

ical center for medical malpractice, according to a survey of reported ver-

dicts.1 That verdict was nearly triple the highest Arizona verdict in 2004.

Personal injury and wrongful death cases constituted the majority of the

highest of 2005 Arizona verdicts. The others included insurance, condemna-

tion, wrongful termination and breach of contract cases.

Comparatively, Arizona continues to trail well behind other states such as

Florida, Texas and California in super-sized verdicts. Nationally, the largest ver-

dict in 2005 was for $1.45 billion (not a typo, that’s a “B”) in a Florida fraud

suit. Now, back to the Grand Canyon State. We begin with a look at the 10

largest Arizona recoveries.

11M AY 2 0 0 6 A R I Z O N A AT T O R N E Yw w w. m y a z b a r. o r g

ability claim to Provident Life andAccident Insurance, his insurer. Providentbegan to pay benefits but sought to haveLeavey get cognitive treatment. Leaveyresisted, taking the position that he waspermanently disabled and that any attemptto improve his condition would only makeit worse. In 2001, Provident advised himthe claim was closed and benefits would beterminated, although the next month itreversed its position and continued to pay.Leavey claimed that Provident was moti-vated by money and had oversold profes-sional disability policies. He claimed badfaith and that Provident subsequently liedand tampered with documents. Providentargued that his claim had in fact not beenclosed, that its correspondence was merelypoorly worded, and that it acted reason-ably in questioning his care and his failureto return to practice. The jury awardedhim $4 million for pain and suffering,$809,028 for future benefits and $15 mil-lion in punitive damages. This was thelargest reported punitive award of the yearin Arizona.

Kelly Wilkins MacHenry is ofcounsel with Snell & Wilmer LLP

in Phoenix. She represents peopleand companies in disputes over

products, business, property andinsurance. She has also been

involved in several appeals. Whenserving as a mediator, she helpspeople to resolve legal disputesbefore trial. She can be reached

at [email protected] or(602) 382-6370.

mother Mauricia Aviles and niece AlexiaAviles repeatedly with a blunt object.Plaintiffs alleged that Maricopa MedicalCenter fell below the standard of carewhen it discharged Rodney Aviles. Each ofthe decedent mother’s four adult childrenwas awarded $4 million, and each of thedecedent niece’s parents was awarded $6million. Fault was apportioned as follows:75 percent to Maricopa County MedicalCenter, 18 percent to non-party psychia-trist Dr. Carla Denham, 5 percent toRodney Aviles, 1 percent to decedentmother Mauricia Aviles, and 1 percent toAviles’ sister Anita Watson.

2. $19,809,028.Brett Leavey v. Unum ProvidentCorporation and Provident Life andAccident Insurance, United StatesDistrict Court for the District ofArizona

Brett Leavey worked as a dentist until1998, when he abandoned his practice dueto emotional disabilities, including depres-sion and substance abuse. He made a dis-

BY KELLY WILKINS MACHENRY

Top 10 Largest Arizona Verdicts in 2005

1. $28,000,000.Orlando Aviles, Leonard Aviles, AnitaWatson, Carmen Tallabas and Ella LouSaldana v. Maricopa County MedicalCenter, Maricopa County SuperiorCourt

Rodney Aviles had been mentally unstablefor years. In June 1999, he began to dete-riorate and was ranting uncontrollably,breaking things, threatening to kill thefamily’s dogs and neighbors’ dogs, andfinally threatening his brother-in-law witha knife. His family called the police andAviles was taken to Maricopa CountyMedical Center for evaluation. He wasdiagnosed as delusional, psychotic, schizo-phrenic and probably addicted to cocaine.He was released five days later, and hismother and sister signed off on his release.He was released in part because hospitalstaffers were convinced that his psychosiswas cocaine-induced and that he did notbelong in the psych unit. Approximatelysix hours later, Aviles bludgeoned his

Arizona CivilVerdicts 2005


3. $18,000,000.Richard Jones, Ricky Jones and TristanJones v. Thomas Moffo and MaryvaleEmergency Physicians, MaricopaCounty Superior Court

Sara Jones was a 22-year-old woman whohad a seizure at home and was taken toMaryvale Hospital Medical Center.Plaintiffs alleged emergency physicianThomas Moffo failed to properly diagnoseor rule out a seizure disorder and failed toobtain an EEG. Jones died several dayslater. Plaintiffs alleged wrongful death andmedical malpractice. Jones’ husband wasawarded $4 million, and her two sons wereawarded $7 million each. Dr. Moffo andMaryvale Emergency Physicians, Ltd. werefound collectively 17 percent at fault, non-party Vanguard Health Systems, Inc. (cor-porate owner of the hospital) was found 43percent at fault, and non-parties Dr.

Michael Epstein and Medical Neurology,Ltd. (consulting neurologist and his prac-tice group) were found collectively 40 per-cent at fault.

4. $8,750,000.Daniel Storm and Debra Storm v.Robert Yocum, Grey Rock, L.L.C. andRecwest, Inc., Pima County SuperiorCourt

Plaintiffs alleged personal injury resultingfrom a motorcycle accident. PlaintiffDaniel Storm was operating a motorcyclewhen RecWest’s truck driver RobertYocum turned left into Storm’s path.Storm was operating slightly in excess ofthe speed limit, was not wearing a helmetand was under the influence of marijuanaaccording to a blood test at the hospital.Storm sustained a closed head injury andcervical spine injury, which rendered him

an incomplete paraplegic. Storm wasfound 15 percent at fault, and Yocum wasfound 85 percent at fault. Storm wasawarded $8.5 million, and his wife wasawarded $250,000.

5. $7,000,000.Kenneth Felder v. PhysiotherapyAssociates, Maricopa County SuperiorCourt

Plaintiff alleged personal injury from a bat-ting practice incident. Kenneth Felder wasa 27-year-old outfielder for the MilwaukeeBrewers’ minor league teams. He wasundergoing physical rehabilitation atPhysiotherapy Associates’ office. Heundertook batting practice in the pitchingrehabilitation area, an area in whichPhysiotherapy Associates later contendedhe did not have permission to be. Hefouled a baseball that struck a concrete lip

COCONINO$726,825

PINAL0

PIMA$569,965

YUMA$22,600

LA PAZ0

MOHAVE$35,511

YAVAPAI$1,385,156

GILA$223,339MARICOPA

$969,294

STATEWIDE AVERAGE$992,509

COCHISE$142,500

NAVAJO0

GRAHAM0

APACHE0

GREENLEE0

SANTA CRUZ

0

2005 Reported Arizona Verdict Averages by Venue

U.S. DISTRICT COURT$3,317,311


between the batter’s cage and the sur-rounding flooring. The ball bounced back-ward and struck his left eye. He sustainedpermanent blurred central vision and ablind spot in his peripheral vision. Felderwas found 30 percent at fault andPhysiotherapy Associates was found 70percent at fault.

6. $6,000,000.Jennifer Ward v. Misty Golder, JamesGolder, Paul Ash Management Co.,L.L.C. and Saint Thomas Properties,L.L.C., Pima County Superior Court

Misty and James Golder were babysittingJennifer Ward’s 4-year-old daughter atSaint Thomas apartment complex, whichwas managed by Paul Ash ManagementCompany. The daughter fell into a spa,struck her leg and head, and drowned.Against the corporate defendants, Wardalleged that the lights in the area wereinoperable for over one month and man-agement had ignored complaints regardingthem. She alleged that the lack of lightcontributed to the daughter’s fall and tothe Golders’ inability to see her. Shealleged negligent supervision against theGolders. Misty Golder admitted liability.The jury found the Golders each 15 per-cent at fault and Paul Ash ManagementCompany and St. Thomas Properties col-lectively 70 percent at fault.

7. $5,825,000.Chelby Stephens, Cooper Stephens andWilliam Stephens v. John C. LincolnHealth Network, Maricopa CountySuperior Court

Plaintiff parents alleged medical malprac-tice for injuries associated with CooperStephens’ birth at John C. LincolnHospital. Mother Chelby Stephens’ strep-tococcal infection was transmitted to herson Cooper during his birth. Plaintiffsalleged that health care providers failed toadminister antibiotics to Chelby anddelayed appropriate treatment of Cooperfor seven hours after his birth. CooperStephens developed pneumonia, a pneu-mothorax, meningitis and brain damagewith resulting disorders. Named as non-parties were the mother’s obstetrician, Dr.

Charles Clinch, and the on-call pediatri-cian, Dr. David Scheer. The jury awarded$3.63 million to Cooper Stephens, $1.495million to mother Chelby Stephens, and$700,000 to father William Stephens.John C. Lincoln Health Network wasfound 48.5 percent at fault, with theremainder allocated 45 percent to Clinchand 6.5 percent to Scheer.

8. $5,253,640.60.California Portland Cement Companyv. Grant Goodman and Teri Goodman,Maricopa County Superior Court

Plaintiff California Portland CementCompany alleged the Goodmans, husbandand wife, personally guaranteed a debtowed to plaintiff by Rockland Materials forcement. The Goodmans failed and refusedto pay on the guarantee, and CaliforniaPortland Cement alleged breach of con-tract. The Goodmans claimed they hadbeen released from the guarantee, or alter-natively that they only guaranteed a por-tion of the debt. The jury found that theguarantee covered all the debts ofRockland Materials to California PortlandCement and found that the Goodmanshad not been released of their guarantee.The jury found that the Goodmans owedCalifornia Portland Cement$5,253,640.60.

9. $4,750,000.Michael Walters v. Maricopa County,Yavapai County Superior Court

Michael Walters was employed as an envi-ronmental analyst by Maricopa County.He alleged that he advised its chief finan-cial officer that administrators had used fic-tional environmental liability figures inreports submitted to bond underwritersand others. He claimed he was fired afterdoing so and after he threatened exposureunless the mistake was corrected. MaricopaCounty argued that he was terminated forpoor performance. Walters alleged wrong-ful termination, violation of the ArizonaWhistleblower Act, defamation and emo-tional distress. He sought $3.2 million inpast and future lost wages. The judgmentwas believed to be the first under Arizona’swhistleblower protection law.



10. $4,711,528.38.Salt River Project AgriculturalImprovement District v. Miller Park,L.L.C., Maricopa County Superior Court

Plaintiff SRP brought a condemnationaction. SRP sought a 15.6-acre corridortaken across a parcel of commercial prop-erty owned by Miller Park in Buckeye.SRP’s appraiser testified that the property’svalue was $270,555 and allocated zero indamages to the surrounding property.Miller Park’s appraiser testified that thevalue of the property plus damage to thesurrounding area was more than $4.1 mil-lion. The jury awarded $2,467,790.37 asthe fair market value of the property takenplus $2,243,738.01 as severance damagesto the remaining property. Although thiswas the largest verdict of this type, therewere several other sizable awards in thecondemnation or eminent domain area,including six other verdicts over $1 mil-lion. This trend may have been a reflectionof the rapidly increasing property values inArizona in recent years.

Averages and Medians by VenueIn several venues in 2005, a few large ver-dicts drove the averages higher to a greatextent. Thus it may be helpful to considerthe medians as well as the averages.

To calculate an average, we add up allthe numbers, then divide by how manynumbers there are. To calculate the medi-an, we place the numbers in value orderand find the middle number, where exact-ly half of the numbers are higher and halfare lower. Both the average and the medi-an verdicts are analyzed for each venuebelow and are summarized in the chart onpage 16.

The statewide average verdict2 in 2005was $992,509, but the statewide medianwas remarkably lower, at $70,000. TheU.S. District Court for the District ofArizona reported the highest average ver-dict, of $3,317,311. This average waslargely driven by four verdicts over $2 mil-lion, as the court reported only nine plain-tiff ’s verdicts in total. One of those was thesecond highest for the year (see Leavey v.Unum Provident, above). The median ver-

15M AY 2 0 0 6 A R I Z O N A AT T O R N E Yw w w. m y a z b a r. o r g

dict was less than a third of the average, at$1,000,000.

Yavapai County reported the second-highest average verdict, of $1,385,156. Italso had a relatively small number ofreported verdicts, one of which was for$4.75 million (see Walters v. MaricopaCounty, above). Yavapai County’s medianverdict was $395,000.

Maricopa County reported the third-highest average verdict of $969,294. Thisfigure was extremely close to the statewideaverage of $992,509, likely in part becauseMaricopa County rendered nearly a thirdof all the verdicts in the state. MaricopaCounty produced the number-one verdictof the year, of $28 million (see Aviles v.Maricopa County Medical Center, above)as well as the number-three verdict, of $18million (see Jones v. Moffo, above). Therewere also many smaller verdicts, makingMaricopa County’s median verdict only$60,209.

Coconino County reported two plain-tiff ’s verdicts, making its average andmedian both $726,825. Pima Countyreported the next-highest average verdictat $569,965, with a median of $50,000.The average verdict for Gila County was$223,339, and its median was $85,817.Next in line was Cochise County with bothan average and median of $142,500, fol-lowed by Mohave County with both anaverage and median of $35,511. YumaCounty reported the lowest average andmedian verdict in the state of $22,600.

Navajo County reported three defenseverdicts and no plaintiff ’s verdicts. GrahamCounty reported one defense verdict andno plaintiff ’s verdicts. No civil verdictswere reported in Apache, Greenlee, LaPaz, Pinal or Santa Cruz Counties. Thiswas especially remarkable as to PinalCounty, which reported the highest aver-age verdicts in 2004. The average by venue

is highlighted in the chart on page 12.

Federal Court Slightly Higherin Defense VerdictsFederal court is generally viewed as a venuemore favorable to civil defendants. In theUnited States District Court for the Districtof Arizona in 2005, defendants prevailed in53 percent of the reported verdicts. Thatfigure is indeed higher than the statewideaverage of 47 percent defense verdicts. Butas in 2004, it again was not markedly high-er. Thus in 2005 verdicts, defendants didnot prevail in Arizona federal court at a sta-tistically greater rate than in state court. Andas noted above, when plaintiffs prevailed inthis court, they achieved some of the largestverdicts of the year.

Punitive AwardsPunitive damages were rare, awarded inonly 11 cases. When imposed, however,they were generally a considerable amount.The punitive awards ranged from a low of$7,500 to a high of $15 million. At least asto the ratio of compensatory to punitivedamages, most of the awards appeared tofollow the guidelines outlined in StateFarm Mutual Automobile Insurance Co. v.Campbell, 538 U.S. 408 (2003), andBains LLC v. Arco Products Co., 405 F.3d764 (9th Cir. 2005). Degree of reprehen-sibility and legislatively established penal-ties for similar conduct are other factors tobe considered.

Reductions for Comparative and Non-Party FaultArizona juries made allocations of fault inmany personal injury cases in 2005. Afteraccounting for these reductions, verdictswere reduced by an overall 32 percent inpersonal injury and wrongful death cases.In the most notable instance, a verdict wasreduced by 90 percent when that percent-

age of fault was allocated to a non-party.This demonstrates the striking impactthese procedures can have on judgments.

Commercial Verdict Averageand Median Higher ThanPersonal InjuryIn 2005, Arizona commercial verdictswere again higher than personal injury ver-dicts in their averages and medians. Theaverage commercial verdict was$1,122,881, with a median of $112,983.Such business or commercial cases includ-ed breach of contract, breach of fiduciaryduty, fraud, takings and property damage.

The average personal injury verdict wasnot far behind, at $931,098, although itsmedian was lower at $50,000. These indi-vidual injury cases included bodily injuryand wrongful death matters. In terms ofvolume, there were almost 2.5 times asmany bodily injury verdicts as there werecommercial verdicts. There was much lessdisparity in averages than last year, whenthe average commercial verdict was nearlytwice that of the average personal injuryverdict.

Significant Defense VerdictsAdmittedly, the “significance” of defenseverdicts is a more subjective area. Defenseverdicts can be significant for all sorts ofreasons. Those highlighted here are thosein which the claimed damages were high,or those in which liability appeared strongbased on the given facts. In no particularorder, here are a few of the year’s signifi-cant defense verdicts:Terry Henderson, Timothy Henderson,Kendra Henderson, and Charles Hendersonv. Kimberly Qualitycare, Inc., KimberlyHome Health Care, Inc., Lynn Colemanand Chip Coleman, Maricopa CountySuperior CourtThis was the third trial of this medical mal-


2005 Reported Arizona Verdict Averages vs. Medians


USDC YAVAPAI MARICOPA COCONINO PIMA GILA COCHISE MOHAVE YUMA STATEWIDE

AVERAGE $ $3,317,311 1,385,156 969,294 726,825 569,965 223,339 142,500 35,511 22,600 $992,509

MEDIAN $ $1,000,000 395,000 60,209 726,825 50,000 85,817 142,500 35,511 22,600 $70,000

practice case, in which a previous verdicthad been $10 million. Decedent KennethHenderson was a bank vice-president whounderwent spinal surgery in 1993 and wasrendered a paraplegic during surgery. Hishome caregiver, Lynn Coleman, wasalleged to have had a sexual relationshipwith him, which continued after her con-tract was terminated. In 1994, Hendersondied of an overdose of medication.Plaintiffs, his wife and children, allegeddefendants fell below the standard of carewith respect to his home health care. Theyasked the jury to award $10 million.Defendants maintained Henderson eitherdied of an accidental overdose or commit-ted suicide because of his paralysis.

Veronica Hunter, Betty Melgren and AliceSemon v. Gordon Atteberry dba Sign-InnLounge, Mohave County Superior CourtThree retired women were driving homefrom Nevada when they were struck head-on and injured by a truck operated by non-party Heintz. At the time of the collision,Heintz had a blood-alcohol level ofapproximately 0.22. Plaintiffs allegedHeintz was overserved alcohol at the Sign-Inn Lounge, where he drank approximate-ly 180 ounces of beer in a little more thantwo hours. Atteberry contended thatHeintz consumed at least some of the alco-hol at another location and left the loungetwo and a half hours before the accident.

Melvina Johnston v. RRSSP I-10 Wilmot,Inc., dba Travel Inn, Pima CountySuperior CourtIn this premises liability case, the decedenthotel guest fell from the top of the hotelstairs to the parking lot, which resulted inhis death. Plaintiff, the decedent’s wife,alleged that the owners failed to repair thestairs. She asked the jury to award $10million. Defendant Travel Inn admitted

the stairs were unreasonably dangerousbut argued there were numerous causesfor the fall.

Lydia Caudillo v. City of Phoenix andLowell Spalla, Maricopa County SuperiorCourtIn this civil rights and excessive force casefor wrongful death, off-duty Phoenixpolice officer Lowell Spalla shot the dece-dent in the back of the head and killedhim. The decedent was alleged to be aninnocent bystander to a fight. Plaintiffasked the jury for $1 million. The City ofPhoenix and Spalla alleged that there wasno time for Spalla to announce or warn ofhis presence and that the decedent hadpointed a gun at the crowd.

Standard Fire Insurance Company v.Classic Coatings Corporation and SpectrumPaint Company, Yavapai County SuperiorCourtThis was a subrogation action in whichplaintiff Standard Fire Insurance allegedthat rags soaked in a stain product madeby Classic Coatings and sold by SpectrumPaint spontaneously combusted andcaused a fire that burned down a house.Plaintiff sought reimbursement of its pay-ment for $1,133,753 in property damage.Classic and Spectrum defended that thecause of the fire was undetermined andthat arson or an electrical malfunctioncould not be ruled out.

Stephanie Pena, Albert Lara and MichelleLara v. Ford Motor Company, MaricopaCounty Superior Court.In this product liability case, decedentSilveria Olivar was driving her FordExpedition when it was struck by anothervehicle and rolled over. Olivar was ejectedand died. Plaintiffs, her children, allegedthat because Olivar habitually wore her

seat belt, it must have “false latched”when it was buckled and then unlatchedin the collision, allowing her to be eject-ed. Plaintiffs asked the jury to award $3.6million. Ford Motor Company demon-strated that the seat belt worked properlyfollowing the crash. Despite the habit tes-timony, Ford also presented evidencethat Olivar was late for work and speedingwhen the crash occurred and simplynever buckled up that day.

Research Corporation Technologies v.Microsoft Corporation, United StatesDistrict Court for the District of ArizonaPlaintiff Research CorporationTechnologies claimed that MicrosoftCorporation infringed six of its patentsrelated to a “blue noise mask” technologyfor the creation of images displayed byMicrosoft’s Windows program. Plaintiffsought royalties of $600 million, plus tre-ble damages for willful patent infringe-ment. Microsoft won summary judgmentas to half of the patents. After a benchtrial, the judge ruled that the remainingthree patents were unenforceable due toinequitable conduct by the patent appli-cants.

ConclusionIn describing statistics, W. Allen Willisdefined them as “a body of methods formaking wise decisions in the face ofuncertainty.” Uncertainty, particularly inlitigation, is to some degree inevitable. Infacing it, corporate clients frequently askfor an evaluation of the trial venue inmaking case assessments. Plaintiffs areinterested to know about how others havefared recently in cases similar to theirs.Recent verdict trend information helpsour clients, and ourselves, in making thewisest decisions and recommendationsthat we can.



1. This article analyzes 313 civil verdicts reported to date from the Superior Courts of Arizona and the United States DistrictCourt for the District of Arizona in 2005. Although the great majority were jury verdicts, some were bench trials. This arti-cle does not analyze or include cases that settled before or during trial, mistrials, cases tried only on liability or comparativefault issues, judgments as a matter of law, criminal cases or cases not yet reported. The judgments analyzed do not includecosts, fees or reductions, which may have been established later. This article makes no comment on the merits of the claimsor defenses, or the lawyering abilities of those involved, in these cases.

2. Average verdicts and median verdicts are computed from all plaintiffs’ verdicts in the particular venue. Defense verdicts andreductions for comparative negligence or non-party fault are deliberately not factored into the analyses of averages andmedians.

endnotes

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