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Monaco v. Healthpartners of Southern Arizona6/29/1999
hat PTSD is "as real a medical condition as you can have, as broken legs or anything else."
Based on this record, we conclude that Monaco's P32 treatment resulted in substantial, long-term emotional disturbances sufficient to support the claim for negligent infliction of emotional distress. The emotional disturbances were not "temporary," "transitory," "inconsequential," or "harmless in themselves." Restatement ยง 436A cmt. c. Accordingly, the trial court properly denied appellants' motions for JMOL.
MOTION FOR NEW TRIAL OR REMITTITUR
After entry of judgment, appellants timely moved for a new trial or remittitur pursuant to Rule 59, Ariz. R. Civ. P., 16 A.R.S. They argued to the trial court, as they do on appeal, that the $1.5 million verdict was excessive, the result of passion or prejudice, and unsupported by the evidence or the law. Appellants claim the jury returned an excessive verdict because the trial court precluded them from responding to a juror's question about remedial measures they had taken after Monaco's P32 treatment and because the Monacos' attorney improperly told the jurors in closing argument to send a message to TMC. We review the trial court's denial of a motion for new trial or remittitur for a clear abuse of discretion. Delbridge v. Salt River Project Agric. Improvement & Power Dist., 182 Ariz. 46, 893 P.2d 46 (App. 1994).
Subsequent Remedial Measures
At the Conclusion of Dr. Ramanna's direct examination, the trial court received this question from a juror: "What changes (if any) have been made in the procedures of the TMC Nuclear Medicine Dept. since this incident?" After the court excused the jury, appellants' counsel stated, "I am going to ask it. I have no secrets." When the Monacos' attorney objected on the basis of relevance, the court reviewed Rule 407, Ariz. R. Evid., 17A A.R.S., and determined that none of its exceptions for the admission of subsequent remedial measures applied. In response, appellants' counsel remarked: "Well, as long as [the Monacos' attorney] doesn't, in closing argument, stand up and say, let's send a message to T.M.C. . . . e've already got the message and we've changed our procedures." After the Monacos' attorney reasserted his relevance objection, the court sustained the objection and ruled that " he sending-the-message argument is stricken."
Appellants argue that the evidence of their subsequent remedial measures was "admissible to avoid any inadvertent award of punitive damages," relying on Baroldy v. Ortho Pharmaceutical Corp., 157 Ariz. 574, 760 P.2d 574 (App. 1988), and Readenour v. Marion Power Shovel, 149 Ariz. 442, 719 P.2d 1058 (1986). Appellants' reliance on these cases is misplaced. Neither stands for the proposition that Rule 407 allows a party to introduce evidence of subsequent remedial measures to deter or prevent an award of punitive damages. In Baroldy, such evidence was admitted for impeachment purposes, which Rule 407 expressly allows, and in Readenour, it was admitted to prove, rather than preclude, punitive damages. "[The evidence] was relevant to the punitive damage argument based upon defendant's failure to take safety measures with regard to the particular shovel in question after it discovered the danger and realized what could be done to prevent accidents from occurring. . . . The large punitive damage award may well be attributable to effective use of the evidence in question." Readenour, 149 Ariz. at 448, 719 P.2d at 1064. And, unlike Readenour, the Monacos were not seeking punitive damages; therefore, the trial court correctly ruled that evidence of appellants' subsequent remedial measures was irrelevant. Such evidence would not have made "the ex
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