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Monaco v. Healthpartners of Southern Arizona6/29/1999
ined the third.
Appellants also claim, citing Grant and Maxwell, that they did not waive the issue because the misconduct was so serious it could not be corrected by a jury admonition and that the misconduct probably influenced the verdict. In support of their position, appellants point to the size of the verdict and the post-trial statements some jurors made to the media.() We agree that waiver does not apply when serious misconduct occurs. See Schmerfeld v. Hendry, 74 Ariz. 159, 245 P.2d 420 (1952); City of Prescott v. Sumid, 30 Ariz. 347, 247 P. 122 (1926); Liberatore. Nevertheless, we have already determined that the argument in question was not improper; thus, no misconduct occurred here. Also, even if we assume misconduct did occur, the trial court's denial of appellants' motion for new trial necessarily implies that the court did not find the misconduct of such magnitude that it actually influenced the verdict. "We do not reverse that discretionary, factual finding unless the record clearly establishes that the trial court was incorrect." Grant, 133 Ariz. at 455, 652 P.2d at 528. The record here does not clearly demonstrate reversible error.
Remittitur
Appellants maintain that the trial court erred in denying a remittitur, claiming the $1.5 million verdict is excessive. Appellants' sole basis for their claim is that the jury "wanted to send a message to TMC to change its procedures" and thus "used the wrong legal standard to award damages." Having already resolved this issue against appellants, we need not discuss it further. Moreover, we defer to the trial court's ruling on appellants' motion for remittitur because its ruling is "nearly always . . . more soundly based than ours can be." Creamer v. Troiano, 108 Ariz. 573, 575, 503 P.2d 794, 796 (1972).
We therefore affirm the verdict and judgment entered in favor of the Monacos and against appellants.
WILLIAM E. DRUKE, Chief Judge
CONCURRING: J. WILLIAM BRAMMER, JR., Judge, JOSEPH W. HOWARD, Judge
Page 1 2 3 4 5 6 Arizona Personal Injury Attorneys
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