KELLY WILKINS MACHENRY is a Partner with Snell & Wilmer L.L.P. This is her eighth year writingthis feature. She represents clients in product liability, financial services and business litigation. She

advises, defends and tries cases for companies throughout the United States. She is co-chair of Snell& Wilmer’s Consumer Product Safety team, which counsels businesses on regulations, warnings, and

recalls. Snell & Wilmer has eight offices in the western U.S. and Mexico.

Her full bio is at swlaw.com/attorneys/kelly_machenry and her email is kmachenry@swlaw.com.

14 A R I Z O N A AT T O R N E Y J U N E 2 0 1 2 15J U N E 2 0 1 2 A R I Z O N A AT T O R N E Y

The best trial lawyers know how to tell their clients’ stories in a meaningful,enthralling way. It’s interesting to read about the strategies behind a big win, but it’s at times more intrigu-ing to read the real-life stories that make up cases. Jurors reach their verdicts through their own internalstories (see excellent Q&A with jury consultant Dr. Dru Sherrod on page 28). All of the verdicts you’reabout to read about1 are stories from a vital part of someone’s career, livelihood, health—or even life.

The “Top 10” Arizona verdicts were markedly lower this past year than in recent years. That reverseda recent upward trend. The top verdicts in 2011 were lower than they have been since 2004. There wereonly two verdicts of more than $10 million. There were 15 verdicts over $1 million.

A Tempe, Arizona manufacturer of computer-chip inspection systems sued for patent infringementand claimed the top verdict of $15.475 million.2 Also among the highest Arizona verdicts were actionsby doctors who sued a patient for complaints she made about them on a website, an injury case broughtby a man who fell off a roof on a volunteer construction site, and investors who sued property devel-opers with whom they invested.

CIVILVERDICTS2011

BY KELLY WILKINS MACHENRY

PHOTO CREDITS: © SHUTTERSTOCK.COMLAKE HAVASU, FLAGSTAFF, PHOENIX: TIM ROBERTS PHOTOGRAPHYSKYHARBOR: ANTON FOLTONSEDONA, DESERT LANDSCAPE: LOULOUPHOTOSBISBEE: HARRIS SHIFFMANTUCSON: FRONTPAGE

KELLY WILKINS MACHENRY is a Partner with Snell & Wilmer L.L.P. This is her eighth year writingthis feature. She represents clients in product liability, financial services and business litigation. She

advises, defends and tries cases for companies throughout the United States. She is co-chair of Snell& Wilmer’s Consumer Product Safety team, which counsels businesses on regulations, warnings, and

recalls. Snell & Wilmer has eight offices in the western U.S. and Mexico.

Her full bio is at swlaw.com/attorneys/kelly_machenry and her email is kmachenry@swlaw.com.

14 A R I Z O N A AT T O R N E Y J U N E 2 0 1 2 15J U N E 2 0 1 2 A R I Z O N A AT T O R N E Y

The best trial lawyers know how to tell their clients’ stories in a meaningful,enthralling way. It’s interesting to read about the strategies behind a big win, but it’s at times more intrigu-ing to read the real-life stories that make up cases. Jurors reach their verdicts through their own internalstories (see excellent Q&A with jury consultant Dr. Dru Sherrod on page 28). All of the verdicts you’reabout to read about1 are stories from a vital part of someone’s career, livelihood, health—or even life.

The “Top 10” Arizona verdicts were markedly lower this past year than in recent years. That reverseda recent upward trend. The top verdicts in 2011 were lower than they have been since 2004. There wereonly two verdicts of more than $10 million. There were 15 verdicts over $1 million.

A Tempe, Arizona manufacturer of computer-chip inspection systems sued for patent infringementand claimed the top verdict of $15.475 million.2 Also among the highest Arizona verdicts were actionsby doctors who sued a patient for complaints she made about them on a website, an injury case broughtby a man who fell off a roof on a volunteer construction site, and investors who sued property devel-opers with whom they invested.

CIVILVERDICTS2011

BY KELLY WILKINS MACHENRY

PHOTO CREDITS: © SHUTTERSTOCK.COMLAKE HAVASU, FLAGSTAFF, PHOENIX: TIM ROBERTS PHOTOGRAPHYSKYHARBOR: ANTON FOLTONSEDONA, DESERT LANDSCAPE: LOULOUPHOTOSBISBEE: HARRIS SHIFFMANTUCSON: FRONTPAGE

16 A R I Z O N A AT T O R N E Y J U N E 2 0 1 2 w w w. a z b a r. o r g / A Z A t t o r n e y 17J U N E 2 0 1 2 A R I Z O N A AT T O R N E Yw w w. a z b a r. o r g / A Z A t t o r n e y

es due to a steep drop in the number oftheir patients, as well as humiliation andemotional distress. Petta defended that shewas expressing her opinions under the FirstAmendment, that the information was trueand/or her opinion, and that she wasdefending her own reputation. The juryawarded $11 million in compensatorydamages plus $1 million in punitive dam-ages, the largest punitive award of the yearin Arizona.

This was a personal injury case that cameout of a volunteer construction site acci-dent. In November 2006, Ronald Day waspart of a volunteer group from his church,Central Christian Church. They were help-ing to build a church roof in Rocky Point,Mexico. Amor Ministries constructs hous-es and churches in Mexico and providessuch volunteer groups with designs, safetyguidelines and training. Day stepped on arafter board that could not support hisweight, and it broke. He fell to the con-crete floor below, landing on his head andback. He fractured multiple spinal verte-brae, requiring spinal fusion surgery, andhad lasting cognitive and psychiatricimpairments including loss of taste, smell

and hearing. The Days lost the businessthey had been running since 1993 due tohis inability to work. Day argued that hedid not receive any training in roof con-struction or safety, and that AmorMinistries and Central Christian Churchknew or should have known the boardswould not support the weight of an adult.Amor and Central Christian defended thatthe condition was open and obvious andthat Day had framing construction experi-ence. The jury awarded $4,695,000 toRonald Day and $1,250,000 to his wifeHeather Day. The jury found CentralChristian Church 80 percent at fault, AmorMinistries 15 percent at fault, and Day 5percent at fault.

This case was brought by investors inshopping center deals who alleged fraud,misconduct, mismanagement and improp-er self-dealing. The investors, includingplaintiffs Richard and Cecelia Goodman,claimed that Ron Barness and Alex Papastold them their money would go towardbuying Greenfield Plaza Shopping Centerin Mesa for $8 million from an owner whohad mismanaged the property. In fact, afew months earlier, Barness and Papas had

bought the shopping center themselves for$4 million and were effectively selling it tothemselves for twice that. They did notdisclose their interest. They charged theinvestors monthly payments as though theloan was for $3.2 million more than theyactually took, and they pocketed the dif-ference. The investors alleged Barness andPapas similarly overcharged for a secondshopping center in New Mexico. Barnessand Papas and their companies defendedthat the investors concocted their claimsafter they lost money on their investment.The jury found for the investors on allcounts of securities fraud, fraud and fraud-ulent nondisclosure, consumer fraud,breach of fiduciary duty, and conspiracy.The jury awarded a total of $4,415,000 incompensatory damages to the investorgroup and declined to award punitivedamages.

This was a breach of lease case against acompany that appears to have been a casu-alty of the recession. Phoenix Van BurenPartners leased an industrial property toSmith Moulding Wholesale on a 10-yearlease that started in 2006. Smith Mouldingwas a lumber and millwork company that

allegedly suffered a catastrophic loss ofsales and income as a result of the reces-sion. It ended its operations and left theproperty in August 2009. Phoenix VanBuren Partners claimed breach of contractfor the default and sued to recover theunpaid rent.

Smith Moulding defended that the roofleaked and that it was never completelyfixed, and that thus it was constructivelyevicted. Smith Moulding also argued thatPhoenix Van Buren Partners failed to miti-gate its damages. The jury awarded$4,203,546 to Phoenix Van BurenPartners.

On June 5, 2008, Larry Hoepner was driv-ing a tractor-trailer in Oklahoma for hisemployer, Logix Transportation. As heapproached a construction zone, he hitanother stopped vehicle that in turn hit astopped SUV that held the Spitzer family.Frances Spitzer was driving and passengerswere her husband Darrell Spitzer, brotherKenneth Spitzer, sister-in-law ElaineSpitzer and sister-in-law Doris SpitzerEstes. The Spitzers alleged the truck wastraveling 72 mph at impact, thoughHoepner and his company argued it was

One day in very early 2011 inflicted a terrible loss onArizona’s legal community. On January 8, 2011, a deranged manshot 18 people and killed six of them in a Tucson-area shoppingcenter where United States Representative Gabrielle Giffordshosted a neighborhood event. Giffords was shot in the head andsurvived. The Chief Judge for the United States District for theDistrict of Arizona, John Roll, was assassinated.

Judge Roll presided over many civil verdicts in his 20 years onthe federal bench. One was the high-profile case of Vicente v.Barnett in 2009. The lawsuit brought by 16 undocumentedimmigrants from Mexico against Arizona rancher Roger Barnett

charged that the immigrants were assaulted, threatened and heldat gunpoint by Barnett and members of his family. After JudgeRoll’s ruling allowed the suit to proceed, he became the subject ofhundreds of complaining phone calls and death threats. Hedeclined to press charges against those who made threats afterthey were identified, and he conducted the trial in February 2009.We honor Judge Roll’s central part in justice in Arizona verdicts.

Nationally, the largest award in 2011 was for $150.37 billionin a wrongful death case, the biggest verdict in U.S. history.3 Thatwas in a Texas case to the parents of a child who was tied to a tree,doused with gasoline and set on fire. Large individual recoveries

between $482 million and $89 million were also handed down inMaryland, Virginia, Nevada, Michigan, Illinois and WestVirginia.4

Intellectual property verdicts nearly tripled among the top100 cases compared to 2010, due in part to a $2.3 billion ver-dict.5 Other areas that had substantial increases in large verdictson the national level were medical malpractice, toxic torts andfraud cases. Notable decreases in number and scale were seen inproduct liability and motor vehicle verdicts.

As it does every year, this article focuses on what the Arizonajuries did in the following cases. Please see the endnotes for any

notable post-verdict activity or appeals, as occurred in many ofthe cases as of the time we went to press.6 The case numbers arealso listed with the case name, and online dockets are available ifyou want to look at the post-trial lawyering in more depth or seewho the lawyers were.7

This article does not analyze or include cases that settledbefore or during trial, mistrials, stipulated judgments, judgmentsas a matter of law, or criminal cases. The verdicts as summarizeddo not include costs, fees or reductions that may have been estab-lished later. The focus is on how the Arizona juries decided thesecases, and what they awarded.

This was a patent infringement case, andthose kinds of cases have generated some ofthe biggest verdicts nationwide the past fewyears. Both companies involved in this suitmake probe card inspection systems, whichare used to test integrated circuits (“chips”)while they are being manufactured.Integrated Technology claimed that it helda patent on one particular system and thatRudolph Technologies made and sold asystem that was the equivalent of the one ithad patented. Integrated Technologyclaimed that as a result, it lost profits dur-ing the years 2001 through 2011. RudolphTechnologies defended that IntegratedTechnology had narrowed the scope of itspatent while obtaining it, that the compa-nies’ products had substantial differencesand thus were not equivalent, and that thejury did not have a sufficient basis to findlost profits. The jury agreed that RudolphTechnologies’ products did not literallyinfringe the patent. The jury found that theinfringing device was the equivalent of theclaimed invention. The jury awardedIntegrated Technology $15,475,482 inlost-profit damages. This was the fourth-to-last Arizona verdict given out in 2011,handed down on December 20.

Here’s a cautionary tale for this age ofsocial media. Sherry Petta was a patient ofDesert Palm Surgical Group and Dr. AlbertCarlotti and Michelle Cabret-Carlotti. In2007, Petta had a nose job, skin resurfac-ing and other cosmetic treatments. She hadproblems with healing and developed askin infection, and she started a websitedevoted to complaining about the treat-ment she received. Petta also claimed thesurgeons intentionally shortened andcurved her nose upward against her wishes.After a judge ordered Petta to take downthe website, she did so, but then she filed acomplaint with the Arizona Medical Boardand with other state officials, posted com-ments on doctor review websites and otherblogs, and spoke out at public meetings. Inthe various forums, she accused the sur-geons of falsifying or altering medicalrecords, evidence and witness tampering,perjury, abusing narcotics, and assault andbattery. The Carlottis asserted that Petta’snon-healing was because she was receivingtreatments from other doctors and usingunauthorized products such as liquid nitro-gen. The Carlottis sued for defamation,portraying them in a false light, and inva-sion of privacy. They claimed financial loss-

$12,000,000Desert Palm SurgicalGroup PLC, AlbertCarlotti and MichelleCabret-Carlotti v. SherryPetta, Maricopa CountySuperior Court,CV2008-010464

$5,945,000Ronald Day andHeather Day v. AmorMinistries and CentralChristian Church,9

Maricopa CountySuperior Court,CV2008-028673

$4,415,000Richard Goodman et al. v. Barness PapasInvestments LLC et al.,10

Maricopa CountySuperior Court,CV2009-018049

$4,203,546Phoenix Van BurenPartners LLC v. SmithMoulding WholesaleInc., Maricopa CountySuperior Court,CV2009-037646

$3,250,000Frances Spitzer et al. v.Logix Transportation,Inc. and LarryHoepner,11 Pima CountySuperior Court,C2009-6310

$15,475,482Integrated Technology Corp.and Nevada IntegratedTechnology Corp. v. RudolphTechnologies, Inc.,8 UnitedStates District Court for theDistrict of Arizona, 06-02182

16 A R I Z O N A AT T O R N E Y J U N E 2 0 1 2 w w w. a z b a r. o r g / A Z A t t o r n e y 17J U N E 2 0 1 2 A R I Z O N A AT T O R N E Yw w w. a z b a r. o r g / A Z A t t o r n e y

es due to a steep drop in the number oftheir patients, as well as humiliation andemotional distress. Petta defended that shewas expressing her opinions under the FirstAmendment, that the information was trueand/or her opinion, and that she wasdefending her own reputation. The juryawarded $11 million in compensatorydamages plus $1 million in punitive dam-ages, the largest punitive award of the yearin Arizona.

This was a personal injury case that cameout of a volunteer construction site acci-dent. In November 2006, Ronald Day waspart of a volunteer group from his church,Central Christian Church. They were help-ing to build a church roof in Rocky Point,Mexico. Amor Ministries constructs hous-es and churches in Mexico and providessuch volunteer groups with designs, safetyguidelines and training. Day stepped on arafter board that could not support hisweight, and it broke. He fell to the con-crete floor below, landing on his head andback. He fractured multiple spinal verte-brae, requiring spinal fusion surgery, andhad lasting cognitive and psychiatricimpairments including loss of taste, smell

and hearing. The Days lost the businessthey had been running since 1993 due tohis inability to work. Day argued that hedid not receive any training in roof con-struction or safety, and that AmorMinistries and Central Christian Churchknew or should have known the boardswould not support the weight of an adult.Amor and Central Christian defended thatthe condition was open and obvious andthat Day had framing construction experi-ence. The jury awarded $4,695,000 toRonald Day and $1,250,000 to his wifeHeather Day. The jury found CentralChristian Church 80 percent at fault, AmorMinistries 15 percent at fault, and Day 5percent at fault.

This case was brought by investors inshopping center deals who alleged fraud,misconduct, mismanagement and improp-er self-dealing. The investors, includingplaintiffs Richard and Cecelia Goodman,claimed that Ron Barness and Alex Papastold them their money would go towardbuying Greenfield Plaza Shopping Centerin Mesa for $8 million from an owner whohad mismanaged the property. In fact, afew months earlier, Barness and Papas had

bought the shopping center themselves for$4 million and were effectively selling it tothemselves for twice that. They did notdisclose their interest. They charged theinvestors monthly payments as though theloan was for $3.2 million more than theyactually took, and they pocketed the dif-ference. The investors alleged Barness andPapas similarly overcharged for a secondshopping center in New Mexico. Barnessand Papas and their companies defendedthat the investors concocted their claimsafter they lost money on their investment.The jury found for the investors on allcounts of securities fraud, fraud and fraud-ulent nondisclosure, consumer fraud,breach of fiduciary duty, and conspiracy.The jury awarded a total of $4,415,000 incompensatory damages to the investorgroup and declined to award punitivedamages.

This was a breach of lease case against acompany that appears to have been a casu-alty of the recession. Phoenix Van BurenPartners leased an industrial property toSmith Moulding Wholesale on a 10-yearlease that started in 2006. Smith Mouldingwas a lumber and millwork company that

allegedly suffered a catastrophic loss ofsales and income as a result of the reces-sion. It ended its operations and left theproperty in August 2009. Phoenix VanBuren Partners claimed breach of contractfor the default and sued to recover theunpaid rent.

Smith Moulding defended that the roofleaked and that it was never completelyfixed, and that thus it was constructivelyevicted. Smith Moulding also argued thatPhoenix Van Buren Partners failed to miti-gate its damages. The jury awarded$4,203,546 to Phoenix Van BurenPartners.

On June 5, 2008, Larry Hoepner was driv-ing a tractor-trailer in Oklahoma for hisemployer, Logix Transportation. As heapproached a construction zone, he hitanother stopped vehicle that in turn hit astopped SUV that held the Spitzer family.Frances Spitzer was driving and passengerswere her husband Darrell Spitzer, brotherKenneth Spitzer, sister-in-law ElaineSpitzer and sister-in-law Doris SpitzerEstes. The Spitzers alleged the truck wastraveling 72 mph at impact, thoughHoepner and his company argued it was

One day in very early 2011 inflicted a terrible loss onArizona’s legal community. On January 8, 2011, a deranged manshot 18 people and killed six of them in a Tucson-area shoppingcenter where United States Representative Gabrielle Giffordshosted a neighborhood event. Giffords was shot in the head andsurvived. The Chief Judge for the United States District for theDistrict of Arizona, John Roll, was assassinated.

Judge Roll presided over many civil verdicts in his 20 years onthe federal bench. One was the high-profile case of Vicente v.Barnett in 2009. The lawsuit brought by 16 undocumentedimmigrants from Mexico against Arizona rancher Roger Barnett

charged that the immigrants were assaulted, threatened and heldat gunpoint by Barnett and members of his family. After JudgeRoll’s ruling allowed the suit to proceed, he became the subject ofhundreds of complaining phone calls and death threats. Hedeclined to press charges against those who made threats afterthey were identified, and he conducted the trial in February 2009.We honor Judge Roll’s central part in justice in Arizona verdicts.

Nationally, the largest award in 2011 was for $150.37 billionin a wrongful death case, the biggest verdict in U.S. history.3 Thatwas in a Texas case to the parents of a child who was tied to a tree,doused with gasoline and set on fire. Large individual recoveries

between $482 million and $89 million were also handed down inMaryland, Virginia, Nevada, Michigan, Illinois and WestVirginia.4

Intellectual property verdicts nearly tripled among the top100 cases compared to 2010, due in part to a $2.3 billion ver-dict.5 Other areas that had substantial increases in large verdictson the national level were medical malpractice, toxic torts andfraud cases. Notable decreases in number and scale were seen inproduct liability and motor vehicle verdicts.

As it does every year, this article focuses on what the Arizonajuries did in the following cases. Please see the endnotes for any

notable post-verdict activity or appeals, as occurred in many ofthe cases as of the time we went to press.6 The case numbers arealso listed with the case name, and online dockets are available ifyou want to look at the post-trial lawyering in more depth or seewho the lawyers were.7

This article does not analyze or include cases that settledbefore or during trial, mistrials, stipulated judgments, judgmentsas a matter of law, or criminal cases. The verdicts as summarizeddo not include costs, fees or reductions that may have been estab-lished later. The focus is on how the Arizona juries decided thesecases, and what they awarded.

This was a patent infringement case, andthose kinds of cases have generated some ofthe biggest verdicts nationwide the past fewyears. Both companies involved in this suitmake probe card inspection systems, whichare used to test integrated circuits (“chips”)while they are being manufactured.Integrated Technology claimed that it helda patent on one particular system and thatRudolph Technologies made and sold asystem that was the equivalent of the one ithad patented. Integrated Technologyclaimed that as a result, it lost profits dur-ing the years 2001 through 2011. RudolphTechnologies defended that IntegratedTechnology had narrowed the scope of itspatent while obtaining it, that the compa-nies’ products had substantial differencesand thus were not equivalent, and that thejury did not have a sufficient basis to findlost profits. The jury agreed that RudolphTechnologies’ products did not literallyinfringe the patent. The jury found that theinfringing device was the equivalent of theclaimed invention. The jury awardedIntegrated Technology $15,475,482 inlost-profit damages. This was the fourth-to-last Arizona verdict given out in 2011,handed down on December 20.

Here’s a cautionary tale for this age ofsocial media. Sherry Petta was a patient ofDesert Palm Surgical Group and Dr. AlbertCarlotti and Michelle Cabret-Carlotti. In2007, Petta had a nose job, skin resurfac-ing and other cosmetic treatments. She hadproblems with healing and developed askin infection, and she started a websitedevoted to complaining about the treat-ment she received. Petta also claimed thesurgeons intentionally shortened andcurved her nose upward against her wishes.After a judge ordered Petta to take downthe website, she did so, but then she filed acomplaint with the Arizona Medical Boardand with other state officials, posted com-ments on doctor review websites and otherblogs, and spoke out at public meetings. Inthe various forums, she accused the sur-geons of falsifying or altering medicalrecords, evidence and witness tampering,perjury, abusing narcotics, and assault andbattery. The Carlottis asserted that Petta’snon-healing was because she was receivingtreatments from other doctors and usingunauthorized products such as liquid nitro-gen. The Carlottis sued for defamation,portraying them in a false light, and inva-sion of privacy. They claimed financial loss-

$12,000,000Desert Palm SurgicalGroup PLC, AlbertCarlotti and MichelleCabret-Carlotti v. SherryPetta, Maricopa CountySuperior Court,CV2008-010464

$5,945,000Ronald Day andHeather Day v. AmorMinistries and CentralChristian Church,9

Maricopa CountySuperior Court,CV2008-028673

$4,415,000Richard Goodman et al. v. Barness PapasInvestments LLC et al.,10

Maricopa CountySuperior Court,CV2009-018049

$4,203,546Phoenix Van BurenPartners LLC v. SmithMoulding WholesaleInc., Maricopa CountySuperior Court,CV2009-037646

$3,250,000Frances Spitzer et al. v.Logix Transportation,Inc. and LarryHoepner,11 Pima CountySuperior Court,C2009-6310

$15,475,482Integrated Technology Corp.and Nevada IntegratedTechnology Corp. v. RudolphTechnologies, Inc.,8 UnitedStates District Court for theDistrict of Arizona, 06-02182

18 A R I Z O N A AT T O R N E Y J U N E 2 0 1 2 w w w. a z b a r. o r g / A Z A t t o r n e y

only 55 mph. The force of the collisionpushed the Spitzer SUV off the road anddown an embankment. All five occupantssustained back injuries, three of whichrequired surgeries, and they also had otherleg, chest and shoulder injuries. LogixTransportation and Hoepner admittedfault. The jury awarded $1,500,000 toFrances Spitzer, $1,000,000 to DarrellSpitzer, $400,000 to Kenneth Spitzer,$200,000 to Doris Spitzer Estes, and$150,000 to Elaine Spitzer.

This was a second “Top 10” verdictbrought by a group of investors against aproperty developer. Investors in the EstrellaVista subdivision in Buckeye, Arizonabought promissory notes and deeds of truston residential lots in subdivisions owned byJackson Properties. The investors claimedthat Jackson Properties failed to make quar-terly payments due on the properties, caus-ing their default. They also claimed theJacksons fraudulently induced the purchaseof the securities. The property developmentproject came to a standstill in 2008. Theinvestors received unopposed judgments ontheir breach of contract claims againstJackson Properties, and the common lawfraud claims were dismissed. The securitiesfraud claim remained and went to the jury.The jury awarded 11 sets of investorsamounts ranging from $435,000 to$30,000, and the total of the awards was$1,980,000.

InMotion Simulation and its owner MarkBarry design and build motion simulatorsthat create the effect of being in a moving

vehicle. Research Applications had a proto-type motion simulator for use with com-puter games. Robert Childress was thePresident of Research Applications andGreg Clark was its Vice President. In 2007,the two companies discussed forming ajoint venture and worked together on aproject known as the BlueTiger simulator.The BlueTiger is a one-person seated simu-lator for racing and flying games, and itmoves and replicates dynamic forces. A fewmonths after the companies’ discussion,Research Applications began manufactur-ing and selling BlueTiger simulators.InMotion alleged that ResearchApplications failed to pay it for its efforts onthe project and breached their contract.Barry also alleged that Childress and Clarkagreed to a partnership in which Barry hada 50 percent ownership interest in theBlueTiger venture, and based upon thatdeal Barry and his company provided theirexpertise and assistance. ResearchApplications defended that other peopledid much of the work and that Barry exag-gerated his claims about what he did for theproject. Research Applications claimed itdid not need Barry’s assistance to completethe simulator and that it had hired him onlyas a consultant. The jury found in favor ofInMotion and Barry on claims of breach ofcontract, breach of fiduciary duty, misap-propriation of trade secrets, and unjustenrichment, for a total award of$1,845,000.

There have been significant awards oncounterclaims in recent years, and this wasanother example of a case where the defen-dant prevailed on the main claim madeagainst it, plus received a major award onits counterclaim. Tempe, Arizona was onthe leading edge of U.S. cities to set up acitywide Wi-Fi network. Tempe contractedwith non-party MobilePro for the project,and when the system went live in February2006 it was the largest municipal Wi-Finetwork in the country. A licensing agree-

ment allowed MobilePro to install Wi-Fiantennas on Tempe’s streetlight poles, inexchange for MobilePro providing Tempefree Wi-Fi instead of rent for use of thepoles. MobilePro later sold the system toGobility Inc., which abandoned the net-work in December 2007. Part of the agree-ment was that if Gobility abandoned thesystem, Tempe would then own all of theWi-Fi antennas on the street poles. Thus,Tempe then tried to assert its ownership.Commonwealth Capital Corporationstepped in and informed Tempe that it hadbought about two-thirds of the antennasand was trying to sell the system to a newprovider. Tempe said that CommonwealthCapital needed to provide free Wi-Fi or payrent. Commonwealth Capital insisted it didnot owe rent and wanted nearly $1 millionfor its part of the system. CommonwealthCapital sued Tempe for the return of theantennas (a claim it later dismissed), andTempe counterclaimed for the rent due.Commonwealth Capital defended that ithad recovered only about half of themoney it paid for the antennas, and thatthe fair market rental rate was only about$5,000. The case was tried to a judge andan advisory jury. The jury awarded Temperent of $450 for each of the 667 antennas(plus $2 per antenna for electricity) for sixmonths, totaling $1,808,904. Unusually,the jury wrote on its verdict slip a specialrequest to the judge asking that Tempealso be awarded ownership of the Wi-Fiequipment, and the judge accepted thejury’s advisory verdict in all respects.

Valley Aviation Services was the operator ofan airport hangar at the Glendale munici-pal airport. Valley Aviation alleged thatGlendale unfairly ordered it to lower its

$1,980,000George Blare et al. v.Jackson PropertiesEVB, Inc. et al.,12

Maricopa CountySuperior Court,CV2008-090954

$1,808,904City of Tempe v.CommonwealthCapital Corp.,14

United States DistrictCourt for the Districtof Arizona, 09-00274

$1,845,000InMotion Simulation LLCand Mark Barry et al. v.Research Applications,Inc., Richard Childressand Greg Clark et al.,13

Maricopa CountySuperior Court, CV2009-007404

$1,777,918Valley Aviation Services, LLP v. Cityof Glendale,15 Maricopa CountySuperior Court, CV2009-013582

an to report here. Of the verdicts in federalcourt, plaintiffs prevailed in 18 percent,whereas defendants prevailed in 82 percent.

Sixty percent of all Arizona verdictscame from Maricopa County, which ishome to Phoenix and is the fourth-largesttrial court in the nation.17 The average of all

its plaintiffs’ verdicts was$486,935. That is lessthan 20 percent of theaverage of its plaintiffs’verdicts in 2010.Maricopa County’s medi-an plaintiff’s verdict was$51,450. Plaintiffs won65 percent of the verdictsin Maricopa County,whereas defendants won35 percent of the verdictsthere.

Mohave County hadone plaintiff’s verdict thatwas higher than usual forthere, at $325,000. It alsohad one defense verdict,so it was an even 50/50split on the win statistics.Cochise County reportedtwo plaintiffs’ verdicts,with an average and medi-an of $262,099. Plaintiffsprevailed in 66 percent ofthe verdicts there, anddefendants prevailed in 33percent.

Arizona’s second-largest city is Tucson, andPima County that encom-passes it produced the sec-

ond-highest volume of verdicts. PimaCounty’s verdict averages have been in fluxover the past few years. The average of itsplaintiffs’ verdicts in 2011 was among thelowest since we’ve been tracking them, at$159,927. Its plaintiff verdict median hasgenerally remained around $50,000, butthis year it was a little more than half that,at $29,268. Plaintiffs won 69 percent of theverdicts; defendants won 31 percent.

Yuma County in the southwestern partof the state had three plaintiffs’ verdicts thataveraged $136,389, with a median of$20,000. It had an equal number ofdefense verdicts, so this county also was50/50 on the win statistics.

Only one plaintiff’s verdict was reportedout of several counties. Those included

damages were awarded, then divide by howmany plaintiffs’ verdicts there were in thatcounty. To calculate the median in a venue,we place the plaintiffs’ verdicts in valueorder and find the middle number, whereexactly half of those verdicts are higher andhalf are lower.

The statewide average plaintiff’s ver-dict16 in 2011 was $467,111. That wasabout 25 percent of 2010’s statewide aver-age. It was also the lowest plaintiff’s aver-age in the eight years we’ve been trackingverdicts. The statewide median in 2011 was$37,500, also the lowest median in eightyears.

The United States District Court for theDistrict of Arizona court reported only twocivil verdicts in 2011, many fewer thanusual. It included the Number-1 verdict(see Integrated Technology v. RudolphTechnologies, above), and the other was insix figures. The average between those twoplaintiffs’ verdicts was $8,172,117, thoughthis is obviously based on limited data forthis particular year. There is no true medi-

rents and enforced stricter airport rulesthan it did on other hangar owners. Itaccused Glendale of trying to force it out ofbusiness.

Glendale defended that Valley Aviationalienated its own tenants by evicting themand for hangar renovations and raisingrents, and that it con-ducted the same activi-ties in its hangars as oth-ers. The jury awarded$1,777,918.

Plaintiffs Won61Percent of

the TrialsStatewide, plaintiffs pre-vailed in 61 percent ofthe trials, and defendantsprevailed in 39 percent.In the past eight years,this statistical chance ofprevailing in any givencase has remained in aclose statistical range.Plaintiffs’ statistical per-centage of prevailing hasranged from 56 percentto 66 percent in the pastfive years.

In every one of thelast eight years, federalcourt has been distinctlymore statistically favor-able to defendants thanstate court on verdicts.In 2011, it was evenmore so. In the UnitedStates District Court forthe District of Arizona in 2011, civil defen-dants prevailed in 82 percent of the report-ed verdicts. There were nine defense ver-dicts and only two plaintiffs’ verdicts. In2011, that was statistically a dramatic 21percentage points better for defendantswhen we compare it to verdicts given onlyin state court.

Venue ComparisonNow that we’ve looked at the statisticalodds of a win, how do jury awards vary bycounty? Once a jury decides to awardmoney, how much did it give in 2011 onaverage? Averages and medians of plaintiffs’verdicts in each venue are as follows. To cal-culate an average for a particular county, weadd up all the plaintiffs’ verdict totals where

20 A R I Z O N A AT T O R N E Y J U N E 2 0 1 2 w w w. a z b a r. o r g / A Z A t t o r n e y

Yavapai County, at $53,000. YavapaiCounty also had three defense verdicts, soplaintiffs won 25 percent here and defen-dants won 75 percent. Graham County hadonly one plaintiff’s verdict of $50,000, andone defense verdict, for a 50/50 split. GilaCounty had one plaintiff ’s verdict of$33,000 and two defense verdicts; thus,plaintiffs won 33 percent of the verdicts inGila County and defendants won 66 per-cent. Navajo County was the last countywith one plaintiff’s verdict, that one of$20,000, and it had one defense verdict aswell for another 50/50 split.

No plaintiffs’ verdicts were reported outof Apache or Coconino Counties, and eachof those had one defense verdict; defen-dants thus won 100 percent there. It wasthe first time in the past eight years that noplaintiff ’s verdict was reported out ofCoconino County, which covers theFlagstaff area.

No verdicts for either side were report-ed out of Pinal, Santa Cruz, La Paz orGreenlee Counties. That was somewhatunusual for Pinal, which in some years hasreported some of the highest verdicts.Greenlee County still has not reported asingle civil verdict in the past eight years.

Steeper Declinein Numberof Verdicts

The number of Arizona casesthat are tried all the way toverdict has been on a gener-ally declining trend since2008.

We first commented onthis development in the arti-cle about 2008’s verdicts.From 2004 through 2007,the reported number ofArizona civil cases taken toverdict18 stayed within arather close range (305 to368). In 2008, it dropped by10 percent to 20 percent.The next year it went backup some, but in 2010 itdeclined again, to 288. In 2011, the num-ber of verdicts was way down, to 254.That’s about 20 percent to 30 percentfewer verdicts than just a few short yearsago.

What’s driving this? It sure doesn’t seemto be fewer case filings. In Maricopa County

alone, since fiscal year 2007, the number ofnew civil cases filed has actually increased by35 percent.19 The number of verdicts didn’tvary during the course of 2011, becauseboth plaintiffs’ verdicts and defense verdictswere split exactly down the middle—50 per-cent of each occurred during the first sixmonths of 2011. Both business and injurytrials seem equally reduced in quantity, as docases at lower and higher levels of claimeddamages. Perhaps it’s a lingering effect ofthe recession. Perhaps it’s due to more com-mon or more successful alternative disputeresolution. Whatever the reason, this is nowan observable multi-year trend.

Punitive AwardsPunitive damages were awarded in only

four cases in 2011. That marked the fewesttimes that punitive awards were given in thepast eight years, and was quite a switchfrom two years ago when Arizona had itsbiggest number of punitive awards.

Punitive awards tend to be given inArizona generally only when there areaggravating or extreme facts. The largest in2011 was in the Number-2 verdict involv-ing alleged defamation. (See Desert SurgicalGroup v. Petta, supra.) The other cases from2011 included one alleging exploitation ofan elderly woman, in which neighbors

depleted her bank accounts and got title toher home, which they then sold for profit;$100,000 in punitive damages was award-ed. In a job harassment and retaliation case,a woman who alleged she was subjected topornographic drawings was awarded puni-tive damages of $868,750 against her for-

mer employer. A passenger in a car that wasrear-ended by a street sweeper as it wasspeeding and changing lanes was awarded$90,000 in punitive damages.

Business andPersonal Injury Verdicts

The average business plaintiff’s verdict was$953,577 (less than 25 percent of the pre-vious year), with a median of $143,950.Such cases included breach of contract,breach of fiduciary duty, fraud, insurancebad faith, professional malpractice, andproperty damage. Of all of the businesscases tried in 2011, plaintiffs won 69 per-cent of them (more than the overall statis-tical percentage) and defendants won 31percent.

The average plaintiff’s personal injury ver-dict was $188,535 (less than half of the pre-vious year), and its median was $20,000. Thecases in this category had one or more personwho was physically injured. They includedmotor vehicle accident injury, product liabili-ty, medical malpractice, excessive force, andwrongful death cases. These kinds of casesmade up about 40 percent of all the casestried to verdict. Of all of the personal injurycases tried in 2011, plaintiffs won 58 percentof them and defendants won 42 percent,

close to the overall percentage.

SignificantDefense Verdicts

In the interest of equal timeand coverage, we highlightsome noteworthy defenseverdicts below. These arefrom a variety of differenttypes of cases in which theclaimed damages at trial werehigh. Here are a few of theyear’s significant Arizonadefense verdicts:

Melody Bullock v.Teufel Management,

LLC,20 Maricopa CountySuperior Court, CV2008-092955Melody Bullock was a cashier who wasdriving home when she was hit broadsideby non-party Eliodoro Lopez Gamez.Ninety minutes after the crash, Gamez’sblood alcohol concentration was 0.242,and he was arrested for extreme DUI.

21J U N E 2 0 1 2 A R I Z O N A AT T O R N E Yw w w. a z b a r. o r g / A Z A t t o r n e y

COCONINOnone

PINALnone

PIMA$159,927

LA PAZnone

NAVAJO$20,000

GREE

NLEE

MOHAVE$325,000

GILA$33,000

YAVAPAI$53,000

APACHEnone

GRAHAM$50,000

MARICOPA$486,935

SANTA CRUZ

YUMA$136,389

STATEWIDE PLAINTIFF VERDICT AVERAGE $467,111U.S. DISTRICT COURT $8,172,117

2011ARIZONA PLANTIFF VERDICT AVERAGES BY VENUE

DECLINE IN NUMBER OF VERDICTSCOCHISE$262,099

2004 2005 2006 2007 2008 2009 2010 2011

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none 400

350

300

250

200

150

100

50

0

an to report here. Of the verdicts in federalcourt, plaintiffs prevailed in 18 percent,whereas defendants prevailed in 82 percent.

Sixty percent of all Arizona verdictscame from Maricopa County, which ishome to Phoenix and is the fourth-largesttrial court in the nation.17 The average of all

its plaintiffs’ verdicts was$486,935. That is lessthan 20 percent of theaverage of its plaintiffs’verdicts in 2010.Maricopa County’s medi-an plaintiff’s verdict was$51,450. Plaintiffs won65 percent of the verdictsin Maricopa County,whereas defendants won35 percent of the verdictsthere.

Mohave County hadone plaintiff’s verdict thatwas higher than usual forthere, at $325,000. It alsohad one defense verdict,so it was an even 50/50split on the win statistics.Cochise County reportedtwo plaintiffs’ verdicts,with an average and medi-an of $262,099. Plaintiffsprevailed in 66 percent ofthe verdicts there, anddefendants prevailed in 33percent.

Arizona’s second-largest city is Tucson, andPima County that encom-passes it produced the sec-

ond-highest volume of verdicts. PimaCounty’s verdict averages have been in fluxover the past few years. The average of itsplaintiffs’ verdicts in 2011 was among thelowest since we’ve been tracking them, at$159,927. Its plaintiff verdict median hasgenerally remained around $50,000, butthis year it was a little more than half that,at $29,268. Plaintiffs won 69 percent of theverdicts; defendants won 31 percent.

Yuma County in the southwestern partof the state had three plaintiffs’ verdicts thataveraged $136,389, with a median of$20,000. It had an equal number ofdefense verdicts, so this county also was50/50 on the win statistics.

Only one plaintiff’s verdict was reportedout of several counties. Those included

damages were awarded, then divide by howmany plaintiffs’ verdicts there were in thatcounty. To calculate the median in a venue,we place the plaintiffs’ verdicts in valueorder and find the middle number, whereexactly half of those verdicts are higher andhalf are lower.

The statewide average plaintiff’s ver-dict16 in 2011 was $467,111. That wasabout 25 percent of 2010’s statewide aver-age. It was also the lowest plaintiff’s aver-age in the eight years we’ve been trackingverdicts. The statewide median in 2011 was$37,500, also the lowest median in eightyears.

The United States District Court for theDistrict of Arizona court reported only twocivil verdicts in 2011, many fewer thanusual. It included the Number-1 verdict(see Integrated Technology v. RudolphTechnologies, above), and the other was insix figures. The average between those twoplaintiffs’ verdicts was $8,172,117, thoughthis is obviously based on limited data forthis particular year. There is no true medi-

rents and enforced stricter airport rulesthan it did on other hangar owners. Itaccused Glendale of trying to force it out ofbusiness.

Glendale defended that Valley Aviationalienated its own tenants by evicting themand for hangar renovations and raisingrents, and that it con-ducted the same activi-ties in its hangars as oth-ers. The jury awarded$1,777,918.

Plaintiffs Won61Percent of

the TrialsStatewide, plaintiffs pre-vailed in 61 percent ofthe trials, and defendantsprevailed in 39 percent.In the past eight years,this statistical chance ofprevailing in any givencase has remained in aclose statistical range.Plaintiffs’ statistical per-centage of prevailing hasranged from 56 percentto 66 percent in the pastfive years.

In every one of thelast eight years, federalcourt has been distinctlymore statistically favor-able to defendants thanstate court on verdicts.In 2011, it was evenmore so. In the UnitedStates District Court forthe District of Arizona in 2011, civil defen-dants prevailed in 82 percent of the report-ed verdicts. There were nine defense ver-dicts and only two plaintiffs’ verdicts. In2011, that was statistically a dramatic 21percentage points better for defendantswhen we compare it to verdicts given onlyin state court.

Venue ComparisonNow that we’ve looked at the statisticalodds of a win, how do jury awards vary bycounty? Once a jury decides to awardmoney, how much did it give in 2011 onaverage? Averages and medians of plaintiffs’verdicts in each venue are as follows. To cal-culate an average for a particular county, weadd up all the plaintiffs’ verdict totals where

20 A R I Z O N A AT T O R N E Y J U N E 2 0 1 2 w w w. a z b a r. o r g / A Z A t t o r n e y

Yavapai County, at $53,000. YavapaiCounty also had three defense verdicts, soplaintiffs won 25 percent here and defen-dants won 75 percent. Graham County hadonly one plaintiff’s verdict of $50,000, andone defense verdict, for a 50/50 split. GilaCounty had one plaintiff ’s verdict of$33,000 and two defense verdicts; thus,plaintiffs won 33 percent of the verdicts inGila County and defendants won 66 per-cent. Navajo County was the last countywith one plaintiff’s verdict, that one of$20,000, and it had one defense verdict aswell for another 50/50 split.

No plaintiffs’ verdicts were reported outof Apache or Coconino Counties, and eachof those had one defense verdict; defen-dants thus won 100 percent there. It wasthe first time in the past eight years that noplaintiff ’s verdict was reported out ofCoconino County, which covers theFlagstaff area.

No verdicts for either side were report-ed out of Pinal, Santa Cruz, La Paz orGreenlee Counties. That was somewhatunusual for Pinal, which in some years hasreported some of the highest verdicts.Greenlee County still has not reported asingle civil verdict in the past eight years.

Steeper Declinein Numberof Verdicts

The number of Arizona casesthat are tried all the way toverdict has been on a gener-ally declining trend since2008.

We first commented onthis development in the arti-cle about 2008’s verdicts.From 2004 through 2007,the reported number ofArizona civil cases taken toverdict18 stayed within arather close range (305 to368). In 2008, it dropped by10 percent to 20 percent.The next year it went backup some, but in 2010 itdeclined again, to 288. In 2011, the num-ber of verdicts was way down, to 254.That’s about 20 percent to 30 percentfewer verdicts than just a few short yearsago.

What’s driving this? It sure doesn’t seemto be fewer case filings. In Maricopa County

alone, since fiscal year 2007, the number ofnew civil cases filed has actually increased by35 percent.19 The number of verdicts didn’tvary during the course of 2011, becauseboth plaintiffs’ verdicts and defense verdictswere split exactly down the middle—50 per-cent of each occurred during the first sixmonths of 2011. Both business and injurytrials seem equally reduced in quantity, as docases at lower and higher levels of claimeddamages. Perhaps it’s a lingering effect ofthe recession. Perhaps it’s due to more com-mon or more successful alternative disputeresolution. Whatever the reason, this is nowan observable multi-year trend.

Punitive AwardsPunitive damages were awarded in only

four cases in 2011. That marked the fewesttimes that punitive awards were given in thepast eight years, and was quite a switchfrom two years ago when Arizona had itsbiggest number of punitive awards.

Punitive awards tend to be given inArizona generally only when there areaggravating or extreme facts. The largest in2011 was in the Number-2 verdict involv-ing alleged defamation. (See Desert SurgicalGroup v. Petta, supra.) The other cases from2011 included one alleging exploitation ofan elderly woman, in which neighbors

depleted her bank accounts and got title toher home, which they then sold for profit;$100,000 in punitive damages was award-ed. In a job harassment and retaliation case,a woman who alleged she was subjected topornographic drawings was awarded puni-tive damages of $868,750 against her for-

mer employer. A passenger in a car that wasrear-ended by a street sweeper as it wasspeeding and changing lanes was awarded$90,000 in punitive damages.

Business andPersonal Injury Verdicts

The average business plaintiff’s verdict was$953,577 (less than 25 percent of the pre-vious year), with a median of $143,950.Such cases included breach of contract,breach of fiduciary duty, fraud, insurancebad faith, professional malpractice, andproperty damage. Of all of the businesscases tried in 2011, plaintiffs won 69 per-cent of them (more than the overall statis-tical percentage) and defendants won 31percent.

The average plaintiff’s personal injury ver-dict was $188,535 (less than half of the pre-vious year), and its median was $20,000. Thecases in this category had one or more personwho was physically injured. They includedmotor vehicle accident injury, product liabili-ty, medical malpractice, excessive force, andwrongful death cases. These kinds of casesmade up about 40 percent of all the casestried to verdict. Of all of the personal injurycases tried in 2011, plaintiffs won 58 percentof them and defendants won 42 percent,

close to the overall percentage.

SignificantDefense Verdicts

In the interest of equal timeand coverage, we highlightsome noteworthy defenseverdicts below. These arefrom a variety of differenttypes of cases in which theclaimed damages at trial werehigh. Here are a few of theyear’s significant Arizonadefense verdicts:

Melody Bullock v.Teufel Management,

LLC,20 Maricopa CountySuperior Court, CV2008-092955Melody Bullock was a cashier who wasdriving home when she was hit broadsideby non-party Eliodoro Lopez Gamez.Ninety minutes after the crash, Gamez’sblood alcohol concentration was 0.242,and he was arrested for extreme DUI.

21J U N E 2 0 1 2 A R I Z O N A AT T O R N E Yw w w. a z b a r. o r g / A Z A t t o r n e y

COCONINOnone

PINALnone

PIMA$159,927

LA PAZnone

NAVAJO$20,000

GREE

NLEE

MOHAVE$325,000

GILA$33,000

YAVAPAI$53,000

APACHEnone

GRAHAM$50,000

MARICOPA$486,935

SANTA CRUZ

YUMA$136,389

STATEWIDE PLAINTIFF VERDICT AVERAGE $467,111U.S. DISTRICT COURT $8,172,117

2011ARIZONA PLANTIFF VERDICT AVERAGES BY VENUE

DECLINE IN NUMBER OF VERDICTSCOCHISE$262,099

2004 2005 2006 2007 2008 2009 2010 2011

none

none 400

350

300

250

200

150

100

50

0

fraud, False Claims and other theories.MER designed and made high-technologyproducts for federal agencies. The govern-ment claimed that MER falsified docu-ments to get government contractsthrough small-business research grants andthat MER did not have required backupprivate funding in place if its products werecommercialized. The government alsoattacked the MER professionals, contend-ing that some of them did not have thequalifications stated in their resumes. Thegovernment made a pretrial demand of $15million. MER denied any wrongdoing,defended that all documents and resumeswere true and that MER had its backupfunding in place. MER also defended thatthe government got a good product fromMER, never complained about MER’sproduct, and sustained no loss because thegovernment got the product for which itcontracted and paid.

Judith Neuharth v. Aqua Speed, Inc.dba International Hot Boat

Association,23 Maricopa County SuperiorCourt, CV2006-012065Michael Neuharth was driving a drag boatin a race at Firebird Lake. He had justcrossed the finish line at more than 170miles an hour when one of the boat’s stabi-lizing platforms lifted and the boat nose-dived and rolled over about five times. Hedied immediately of severe head injuries.The Neuharth family claimed that the racesponsor, International HotboatAssociation, started the race in spite of highwinds and rough water. They asked the juryto award $10 million for Neuharth’s death.International Hotboat Association defend-

ed that Neuharth was able todetermine whether thecourse was safe for his run,and that he had signedrelease forms and assumedthe risk of the race.

Leesa Irwin v. CooperTire & Rubber Co.

and Discount Tire Co., Inc.,Pima County SuperiorCourt, C2008-8135In this product liability case,Leesa Irwin was a passengerin a 2001 Ford ExplorerSport that Salvatore Celi was

driving on Interstate 8. The SUV had a tireon its left rear that was manufactured byCooper Tire and sold by Discount Tire.Irwin alleged that the tire failed and causedthe SUV to roll over multiple times. Irwinclaimed that the tire had two design defectsand multiple manufacturing defects. Irwinsustained a closed-head injury, brain dam-age, a degloving injury to her leg, and anerve injury that resulted in loss of use ofher right arm and hand. She asked the juryto award $10 million. Cooper Tire andDiscount Tire demonstrated that the tirewas not defective and that it failed becauseof earlier road hazard damage. They alsodefended that Celi was driving 80 to 85mph, that he steered excessively after thetire failure, and he thus failed to controlthe vehicle.

Janie Torrio v. Joseph Abdo andDaniel Randall,24 Gila County

Superior Court, CV20070149Francie Luz, age 67, underwent surgery toremove material from the inside of hercarotid artery, developed hypertension andthen died of a stroke. Her family claimedshe developed hyperperfusion syndrome ofthe brain (hypertension and doubling ofblood flow to the brain), causing her deathby stroke. The family claimed the surgeonJoseph Abdo and the nurse anesthetistDaniel Randall mismanaged her bloodpressure and that the stroke occurred post-operatively. They asked the jury to awardup to $6 million to her six children. Abdoand Randall defended that they managedher blood pressure properly and met thestandard of care, that this was a known riskof the surgery, and that the stroke occurred

Bullock sustained a fracturedleft wrist and developed infec-tions that resulted in the ampu-tation of three fingers. Shealleged that Gamez was over-served at the restaurant andsports bar Native New Yorker,which was owned by TeufelManagement. Bullock askedthe jury to award $40 million.Teufel Management defendedthat Gamez did not drink anyalcohol at its restaurant.

Raymond Greenwood etal. v. Mepamsa and

Camping World, Inc.,21 Apache CountySuperior Court, CV2008-087On December 10, 2007, the Greenwoodfamily was severely burned when a flash fireerupted as Raymond Greenwood attempt-ed to start a propane-fueled catalytic heater.The heater was manufactured by Mepamsaand sold by Camping World, Inc. TheGreenwoods claimed that it did not havean inlet filter in its propane supply lineupstream from a safety control valve. Theyalso claimed that soil or sediment got intothe heater and caused the safety valve tostay open, resulting in a propane leak.Raymond and Tasha Greenwood hadthird-degree burns over much of theirbody, were hospitalized for weeks and hadmultiple surgeries. The daughters had sec-ond-degree burns to their faces. TheGreenwoods told the jury that their dam-ages were probably more than $15 millionfor the family. Mepamsa and CampingWorld denied that the heater was defectiveand showed that the fire was caused by theimproper installation of a pressure regula-tor by non-party Amerigas three daysbefore the fire. The pressure regulatorbecame contaminated with moisture thatfroze and caused it to malfunction. Theheater had worked properly for the 14months before the fire.

United States of America ex rel.Masoud Samandi v. Materials and

Electrochemical Research Corp.,22 UnitedStates District Court for the District ofArizona, 05-00124The United States of America suedMaterials and Electrochemical ResearchCorporation (“MER”) and its principals on

22 A R I Z O N A AT T O R N E Y J U N E 2 0 1 2 w w w. a z b a r. o r g / A Z A t t o r n e y

FIVE YEAR “TOP 10” RANGES

2007 2008 2009 2010 2011

40

35

30

25

20

15

108642

MILLIONS 360 269 57 110

15

6 6 53

24 A R I Z O N A AT T O R N E Y J U N E 2 0 1 2 w w w. a z b a r. o r g / A Z A t t o r n e y

vations on Arizona verdict trends.Arizona had peak verdicts in 2007 and

2008, and they have leveled off anddeclined in the years that have followed.Punitive damages have remained rarethroughout and are generally awarded onlywhen there are aggravating facts. The sta-tistical chance of prevailing as a plaintiff inany given case that goes to the jury hasranged from 53 to 66 percent each year,and the eight-year average chance of win-ning as a plaintiff was 59 percent. Theaverage verdict in commercial cases spikedin 2007 and 2008 up in the $7 million to$9 million range, but the medians havestayed in a much closer range of $75,000to $250,000. The median personal injuryverdict has been in the $20,000 to$30,000 range since 2006.

Some more trivia about Arizona verdictsover the past eight years:• The largest overall verdict was in 2007,

for $360 million. This was also thelargest business verdict.

• The largest personal injury verdict wasin 2008 for $43.112 million, in a prod-uct liability case.

• There were 30 verdicts of more than$10 million in the eight years between2004 and 2011. Of those, 21 werebusiness verdicts and 9 were personalinjury verdicts.

• The largest punitive award was $155million, handed down in 2009. Thatwas also the year for the highest quan-tity of punitive awards. The fewestpunitive awards were in 2011.

• The highest percentage of defense ver-dicts (47 percent) was in 2005.

• Four of 2011’s highest 12 verdicts werehanded down in December, includingthe Number-1 and -2 verdicts of 2011.

Where Are They Now?After the drama of a major verdict such asthose above, what happens next? Very oftenthe post-verdict developments are not near-ly as exciting, except on noteworthy legalissues to those of us who like doing appeals.Many of the significant verdicts for eitherside are appealed, some are paid, and mostare ultimately settled. This is not a compre-hensive history of all the recent verdicts,but here are a few of our past years’ notableverdicts that had key developments in2011:

Jose Rincon Sr. and Adriana Rincon v. Cityof Tucson and Glenda Rumsey, Court ofAppeals of Arizona, No. 2 CA-CV 2010-0150. This was the Number-4 verdict in2010 and the largest individual judgmentawarded against the city of Tucson. It was aroad design case involving a drunk driverwho struck and killed a teenager on hisbike. Post-trial, the trial court ordered thejudgment reduced to $12 million. In 2011,the Arizona Court of Appeals found that ajury instruction on damages and the admis-sion of other-incident evidence was appro-priate. The appeals court found reversibleerror in the admission of testimony by theRincon parents about whom they believedwas “at fault” or “responsible” for theirson’s death, and remanded the case for anew trial.

Bard Peripheral Vascular, Inc. and DavidGoldfarb v. W.L. Gore & Associates, Inc.,United States Court of Appeals for theFederal Circuit, 2010-1510. This is one ofthe longest patent cases to continue to belitigated, and it relates to a prosthetic vas-cular surgical graft first developed in 1974.It was the Number-2 jury verdict in 2007at $185 million. Double damages, interestand attorneys’ fees were later awarded anda royalty rate was set. After final judgmentwas entered in Arizona federal district courtin 2010 for approximately $660 million,Gore again appealed. The United StatesCourt of Appeals for the Federal Circuitaffirmed the judgment in 2011, opening itsopinion with, “This has been a long andarduous journey for the parties in this liti-gation, but this should be the final curtainof the saga.” Gore has petitioned for reviewto the United States Supreme Court.

Oracle USA, Inc. et al. v. SAP AG et al.,United States District Court for theNorthern District of California, 07-1658.This was the Number-1 verdict nationallyin 2010 for $1.3 billion for copyrightinfringement. The California jury awardedwhat was believed to be the largest amountever for software piracy. The district courtjudge later threw out the verdict, rulingthat the penalty was “contrary to theweight of the evidence, and was grosslyexcessive.” A retrial is set for June 2012.This was the second year in a row that thelargest national verdict was set aside.

during the surgery after an instrumentbeing held by another nurse slipped andsevered the carotid artery.

Van Houston Holdings and VanTalley v. City of Safford and

Ronald Green, Graham County SuperiorCourt, CV2008-13125

This was a suit for defamation. Van Talley,the former mayor of Safford, Arizona, was aconsultant for a property developer that wasproposing to build Safford Commerce Park.Talley contended that interference by thecurrent mayor, Ron Green, caused the pro-ject’s failure. Talley claimed that Green hada personal vendetta against him anddefamed Talley through comments and apolitical cartoon. Talley asked for $2.6 mil-lion, the amount he claimed in lost profits.Green defended that he did not do or sayanything that kept the Safford CommercePark project from being built and that hedid not defame Talley. The city of Safforddefended that the project was not viable asproposed, that tenants had not committedwithin the developer’s time frame, and therewas no intentional delay toward the project.

Bertha Remato v. City of Phoenixand Robert Sauceda, United States

District Court, 09-2027This was a civil rights and wrongful deathshooting case. On December 19, 2008, 17-year-old Gonzalo Cordova and three friendsdrove to a convenience store for a “beerrun,” i.e., to shoplift beer. They werestopped by Phoenix police in the parkinglot, and Cordova attempted to drive away.Officer Robert Sauceda shot at the cartwice, and the bullets went through a sidewindow, ricocheted, and hit Cordova in thearm and the back. Cordova’s mother BerthaRemato claimed excessive force and assault,arguing that Sauceda was not in immediatedanger when he fired and that the secondshot was unreasonable. Phoenix andSauceda defended that Sauceda was justifiedin using deadly force because he reasonablybelieved his life was in danger whenCordova drove his vehicle toward him, andthat the amount of force was appropriate.

TrendsThis is the eighth year for this article andwe’ve reviewed and reported on about2,350 verdicts. Here are some more obser-

26 A R I Z O N A AT T O R N E Y J U N E 2 0 1 2 w w w. a z b a r. o r g / A Z A t t o r n e y

1. Acknowledgments and thanks to:• My partners and colleagues at Snell & Wilmer L.L.P., who regularly

inspire me. Pam Ritchey, Karen Kowing and Koren Lyons con-tributed helpful background research.

• My family, for everything. To River who exemplifies endurance, Samwho teaches the power of observation, and Sky who shows themeaning of perseverance.

• This article is dedicated to my friend Brian Martinuzzi, who remindsyou all to work less and live more.

• Finally, the readers of this article and ARIZONA ATTORNEY editor TimEigo, for your positive comments and the encouragement to keepwriting it for eight years, and to Karen Holub at Arizona Attorneyfor the always-terrific artwork and graphics.

2. This article analyzes 254 civil verdicts reported from the SuperiorCourts of Arizona and the United States District Court for the Districtof Arizona for the 2011 calendar year. Although the great majoritywere jury verdicts, some were bench trials tried to a judge. The partiesnamed are the ones who were active in the case when it went to ver-dict.

3. Amanda Bronstad, Sometimes, a Verdict Simply Expresses Outrage,NAT’L L.J., Mar. 12, 2012, at 11.

4. Susan Bocamazo, Top Ten Jury Verdicts of 2011, LAWYERSUSA, Jan. 17,2012.

5. Bronstad, supra note 3, at 11-12.6. This article makes no comment on the merits of the claims or defenses

in these cases, or the parties or specific lawyers involved. Significantpost-verdict developments are in these endnotes. Because the focus ofthis article is on the verdicts, not all of the post-verdict activity isreported here.

7. PACER.gov for the federal system; superiorcourt.maricopa.gov forMaricopa County; agave.cosc.pima.gov for Pima County; andapps.supremecourt.az.gov for the other counties.

8. Summary judgment was granted to Integrated Technologies beforetrial with respect to infringement by one of the products at issue, dur-ing a time that Rudolph was represented by predecessor counsel.Rudolph Technologies, Inc. has filed a motion for a new trial, which ispending. Post-verdict, the U.S. Patent and Trademark Office reverseditself and granted a reexamination request with respect to the validityof the patent, and Rudolph Technologies moved for a stay of addi-tional proceedings in the trial court.

9. Defendants filed motions for a new trial, which were denied. Theirappeal is pending.

10.Other plaintiffs were Cecilia Goodman, City National Bank, andWortrich Family Trust. Other defendants were Ron Barness, AlexPapakyriakou, Greenfield Plaza Investors, L.L.C., Taylor Ranch RetailInvestors, LLC, ALRO Investors, LLC, Barness Investment LimitedPartnership and Retail Brokers, Inc., Daron Barness, and RoxannePapakyriakou. Defendants filed an appeal that is pending.

11.Other plaintiffs were the other passengers Darrell Spitzer, Doris SpitzerEstes, Kenneth Spitzer and Elaine Spitzer. The driver in the first vehicledied, and Hoepner reportedly pleaded no contest to negligent homi-cide.

12.Other plaintiffs were William and Doris Felcyn (awarded $435,000),

Robert and Joanne Kembel (awarded $405,000), Larry and Mary AnnLaRock (awarded $390,000), Carol Johnson (awarded $315,000), EdnaBlare (awarded $195,000 with her husband George Blare), RobertLeonard (awarded $165,000), Edward Enzmann (awarded $90,000),Anthony and Jean Scimeca ($45,000), Carolyn Ennis (awarded $30,000),Ronald and Lillian Faragher (awarded $30,000), and David Miller(awarded $30,000). Other defendants were Randall Jackson and MelodieJackson. Defendants filed a motion for a new trial, which was denied.

13.Another plaintiff was Sarah Barry. Other defendants were Blue Tiger,LLC, Arlene Childress and D.J. Sydney Clark.

14.Commonwealth Capital filed a motion for a new trial and other associatedrelief, which was denied. Commonwealth Capital has filed an appeal thatis pending.

15.Glendale filed a motion for remittitur and/or a new trial, which wasdenied.

16.Average verdicts and median verdicts are computed from all plaintiffs’ ver-dicts in the particular venue. Defense verdicts and reductions for compar-ative negligence or non-party fault are deliberately not factored into theanalyses of averages and medians for the reasons noted above. If we didinclude defense verdicts into that analysis, the average of all civil verdictsstatewide in 2011 (both plaintiffs’ and defense verdicts) was $288,021. I disagree the latter is a better methodology either for this article or ingeneral. If a lawyer is analyzing a particular venue for purposes of case valuation or risk assessment, the more helpful analysis is the question,What is a jury there going to tend to award once it finds liability? If you include all the zero-dollar defense verdicts, it throws off that analysis completely.

17.JUDICIAL BRANCH OF ARIZONA IN MARICOPA COUNTY, ANNUAL REPORT

SUPERIOR AND JUSTICE COURTS, at 4 (FY2011).18.This data is from the reported verdicts as noted in endnote 2, from the

Superior Courts and federal court. It does not factor in small claims orJustice Court trials, which are not reported in the same way.

19.JUDICIAL BRANCH, supra note 17, at 8.20.Another plaintiff was her husband David Bullock. Other defendants were

Marcus Teufel and Cindy Teufel.21.Other plaintiffs were Tasha Greenwood, Marita Greenwood and Arizona

Greenwood. Plaintiffs filed a motion for a new trial that was denied andhave filed an appeal that is pending.

22.Other defendants were MER’s founders James Withers and Raouf Loutfy,and their wives Helga Withers and Elia Loutfy. “Ex rel.” is an abbrevia-tion of “ex relatione” meaning “on behalf of,” a legal phrase used whenthe government brings a case upon the request of a private person whohas some interest in the matter. Plaintiff’s motion for a new trial wasdenied. Plaintiff filed an appeal to the Ninth Circuit, and defendants fileda cross-appeal regarding certain pretrial rulings. Those appeals were laterdismissed.

23.Other plaintiffs were his adult daughters Rachel Neuharth and JanicePeterson, and his mother Marlene Neuharth. Another defendant wasCharlie Fegan, president of the association.

24.Other defendants were Joseph Abdo, M.D., P.C. and Sweet DreamsAnesthesia.

25.Another plaintiff was Anne Talley, and another defendant was TomiGreen. Plaintiffs filed a motion for a new trial, which was denied.

endnotes

ConclusionThis past year I had the chance to ridealong with a professional test driver as hedemonstrated extreme spins and turns. Hissuggestion to keep from getting dizzy wassimple. He pointed ahead, saying, “Keeplooking ahead to where you’re heading, to

where you want to go.” It really works. Itkeeps your focus ahead and stops you fromgetting distracted by the chaos around you.It also stuck in my head as a good mantrafor life in general. Keep looking ahead towhere you want to go.

Please feel free to contact me any time

for more details about the verdicts or toreport significant ones that happen in thefuture. You’re also invited to browse myfirm’s website (swlaw.com/attorneys/kelly_machenry) where you can find moreof my publications and other good things.See you next year. AZAT