Opinion
No. 1 CA-CV 12-0778
01-30-2014
JANET HARVEY, Plaintiff/Appellant, v. PHOENIX AIRPORT MARRIOTT, Defendant/Appellee.
Law Office of Robert N. Edwards, Anoka, MN By Robert N. Edwards Counsel for Plaintiff/Appellant O'Connor & Campbell PC, Phoenix By Daniel J. O'Connor, Stephanie F. Van Splunder, Michael M. Roberts Counsel for Defendant/Appellee
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
CV2006-017148
The Honorable Hugh E. Hegyi, Judge
AFFIRMED
COUNSEL
Law Office of Robert N. Edwards, Anoka, MN
By Robert N. Edwards
Counsel for Plaintiff/Appellant
O'Connor & Campbell PC, Phoenix
By Daniel J. O'Connor, Stephanie F. Van Splunder, Michael M. Roberts
Counsel for Defendant/Appellee
MEMORANDUM DECISION
Judge Samuel A. Thumma delivered the decision of the Court, in which Presiding Judge Randall M. Howe and Judge Patricia A. Orozco joined. THUMMA, Judge:
¶1 Janet Harvey appeals from a jury verdict awarding her $5,285.68 in damages for a personal injury claim against Phoenix Airport Marriott. Harvey also appeals from the denial of her motion for additur or new trial. Finding no error, the verdict and denial of the motion for additur or new trial are affirmed.
FACTS AND PROCEDURAL HISTORY
This court views the facts in the light most favorable to upholding the jury's verdict. Powers v. Taser Int'l, Inc., 217 Ariz. 398, 399 n.1, ¶ 4, 174 P.3d 777, 778 n.1 (App. 2007).
¶2 Harvey was at a restaurant in the Marriott in November 2004, when a bottle of champagne fell and struck her. Claiming a traumatic brain injury and resulting cognitive deficits, Harvey filed this negligence action against Marriott in November 2006.
¶3 After various delays (including changes in counsel, entry of judgment when plaintiff failed to oppose a dispositive motion, a putative appeal and amendments to the pleadings), the court set a jury trial for March 2012. Marriott retained and disclosed as a trial witness biomechanical engineer Patrick Hannon, Ed. D., to provide an opinion as to whether the impact of the bottle could cause Harvey's claimed injuries. In mid-October 2011, Harvey filed a motion to preclude Dr. Hannon from testifying. Marriott timely opposed the motion and, based on the parties' voluminous filings, the superior court denied the motion in January 2012 without a hearing.
Harvey moved to reconsider solely based on a procedural issue unique to briefing motions in limine and the superior court denied that motion without a response.
¶4 After a six-day trial, the jury found for Harvey, found Marriott 100 percent at fault and awarded Harvey $5,285.68 in damages. Because Harvey had not accepted a timely offer of judgment that exceeded the verdict, the superior court awarded Marriott $55,257.70 as sanctions. See Ariz. R. Civ. P. 68(g). After deducting the verdict and Harvey's taxable costs, the court entered a judgment for $42,108.82 in favor of Marriott. After full briefing, the court denied Harvey's motion for additur or new trial without a hearing.
¶5 This court has jurisdiction over Harvey's timely appeal pursuant to Arizona Revised Statutes (A.R.S.) section 12-2101(A)(1) & (A)(5) (2014).
Absent material revisions after the relevant dates, statutes cited refer to the current version unless otherwise indicated.
DISCUSSION
I. Admission Of Dr. Hannon's Testimony.
¶6 Harvey argues the superior court erred by allowing Dr. Hannon to testify at trial and, by allowing that testimony, the jury was unfairly prejudiced. This court reviews a decision to admit expert testimony for an abuse of discretion. McMurtry v. Weatherford Hotel, Inc., 231 Ariz. 244, 249, ¶ 10, 293 P.3d 520, 525 (App. 2013).
¶7 Dr. Hannon's pretrial disclosure explained that he measured the force with which the champagne bottle would have hit Harvey's head and opined that any impact did not have the potential to produce even a mild brain injury. At trial, Dr. Hannon testified that the champagne bottle would not have struck Harvey's head if it fell from the ledge where she was seated. He also testified that, even if the champagne bottle had fallen directly onto Harvey's head, the impact would not have been sufficient to cause a traumatic brain injury. Dr. Hannon explained that he relied on published studies stating that the force needed to cause a brain injury was between 45 to 80 g's (where a g is a measurement of acceleration) and contrasted that information with his measurement that, at most, the champagne bottle would have hit Harvey's head at 3 g's. Harvey argues the superior court erred by allowing Dr. Hannon to testify at trial.
A. The Applicable Legal Standard.
¶8 The admissibility of Dr. Hannon's testimony implicates significant recent changes to the Arizona Rules of Evidence. The trial occurred in 2012 and at oral argument before this court, the parties agreed that the Arizona Rules of Evidence in place at the time of trial set forth the proper standard of admissibility. Accordingly, and because the relevant issue is the admissibility of Dr. Hannon's trial testimony, the court applies the Arizona Rules of Evidence as amended effective January 1, 2012. See Ariz. R. Evid. Prefatory Comment to 2012 Amendments.
¶9 Effective January 1, 2012, Arizona Rule of Evidence 702 was amended to conform to Federal Rule of Evidence 702 and now provides:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:Ariz. R. Evid. 702. As reflected in the Arizona Supreme Court's comments, this standard
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
is not intended to supplant traditional jury determinations of credibility and the weight to be afforded otherwise admissible testimony, nor is the amendment intended to permit a challenge to the testimony of every expert,Ariz. R. Evid. 702 cmt. to 2012 amendment. Because the rules are now textually identical, "federal court decisions interpreting [Federal Rule of Evidence 702] are persuasive but not binding" in interpreting Arizona Rule of Evidence. Ariz. State Hosp. v. Klein, 231 Ariz. 467, 473, ¶ 26, 296 P.3d 1003, 1009 (App. 2013). Similarly, the advisory committee notes to Federal Rule of Evidence 702 provide guidance in interpreting Arizona Rule of Evidence. See State v. Salazar-Mercado, 232 Ariz. 256, 260, ¶ 11, 304 P.3d 543, 547 (App. 2013).
preclude the testimony of experience-based experts, or prohibit testimony based on competing methodologies within a field of expertise. The trial court's gatekeeping function is not intended to replace the adversary system. Cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.
¶10 In addition to the text of Arizona Rule of Evidence 702, Arizona courts have noted Daubert v. Merrell Dow Pharm, Inc., 509 U.S. 579, 593-94 (1993) set forth several "non-exclusive factors for determining whether scientific evidence is admissible, including:"
• "whether the scientific methodology has been tested;"Klein, 231 Ariz. at 473, ¶ 27, 296 P.3d at 1009 (quoting Daubert for first four factors); State v. Bible, 175 Ariz. 549, 586 n.32, 858 P.2d 1152, 1189 n.32 (1993) (quoting Daubert for last factor); see also State v. Superior Court (Herman), CA-SA-13-0285, 2014 WL 118106, at *4-5, ¶ 12-13 (Ariz. App. Jan. 14, 2014); Fed. R. Evid. 702 Advisory Committee Notes 2000 Amendment (listing "other factors relevant in determining whether expert testimony is sufficiently reliable to be considered by the trier of fact"). Each factor "may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert's particular expertise, and the subject of his testimony." Klein, 231 Ariz. at 473, ¶ 28, 296 P.3d at 1009 (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999)). These factors focus on general principles and methods, an inquiry addressed in Arizona Rule of Evidence 702(c). See Herman, CA-SA-13-0285, 2014 WL 118106, at * 5, ¶ 13.
• whether the methodology has been "subjected to peer review;"
• "the 'known or potential rate of error;'"
• "whether the methodology has 'general acceptance;'" and
• "the existence and maintenance of standards controlling the technique's operation."
¶11 This court "review[s] de novo matters involving interpretation of court rules," State v. Fitzgerald, 232 Ariz. 208, 210, ¶ 10, 303 P.3d 519, 521 (2013) (citing cases), and a fact-based "decision to permit or exclude expert testimony for an abuse of discretion," McMurtry, 231 Ariz. at 244, ¶ 10, 293 P.3d at 525 (citation omitted). As the proponent of the evidence, Marriott has the burden to show by a preponderance of the evidence that Dr. Hannon's testimony was admissible. See, e.g., Fed. R. Evid. 702 Advisory Committee Notes 2000 Amendment (citing Bourjaily v. United States, 483 U.S. 171, 175 (1987)).
B. The Superior Court Did Not Err In Failing To Hold A Pretrial Evidentiary Hearing On The Admissibility Of Dr. Hannon's Testimony.
¶12 Harvey argues the superior court erred in failing to hold an evidentiary hearing regarding the admissibility of Dr. Hannon's testimony. Harvey's motion to exclude, however, did not request an evidentiary hearing. The second page of Harvey's separate memorandum stated that, if the court was "not convinced" from the filings that Dr. Hannon's testimony should be precluded, "the Court should hold a Frye/Daubert hearing to explore whether the proposed expert testimony withstands Frye/Daubert scrutiny." Such a suggestion is not the equivalent of a motion seeking an evidentiary hearing. See Ariz. R. Civ. P. 7.1(a).
¶13 Harvey's motion for additur or new trial did not claim the court erred in failing to hold an evidentiary hearing. For this independent reason, by failing to raise the issue with the superior court, Harvey waived any claim the court erred in failing to hold an evidentiary hearing. See McDonald v. Cox, 12 Ariz. 171, 173-75, 100 P. 457, 458-59 (1909).
¶14 Although a superior court has the discretion to hold a pretrial evidentiary hearing to make an admissibility decision under Arizona Rule of Evidence 702, such hearings are not mandatory. See State v. Perez, 233 Ariz. 38, 43, ¶ 19, 308 P.3d 1189, 1194 (App. 2013) (citing Klein, 231 Ariz. at 474, ¶ 31, 296 P.3d at 1010). Given the voluminous filings the parties made regarding Dr. Hannon's testimony, the superior court did not abuse its discretion in not holding an evidentiary hearing on Harvey's motion. Perez, 233 Ariz. at 43, ¶ 19, 308 P.3d at 1194.
C. The Superior Court Did Not Err In Not Making Factual Findings Regarding The Admissibility Of Dr. Hannon's Testimony.
¶15 Harvey argues the superior court was required to make factual findings regarding the admissibility of Dr. Hannon's testimony and, because that did not occur, the verdict must be vacated and the matter remanded for new trial. The federal circuits are split on whether such findings are required. Compare United States v. Mitchell, 365 F.3d 215, 233-34 (3d Cir. 2004) (reviewing merits of ruling on admissibility of expert evidence "adher[ing] to the usual precepts of abuse-of-discretion review," where the trial court "elected not to make findings of fact or conclusions of law (written or oral)") and Conwood Co. v. United States Tobacco Co., 290 F.3d 768, 791-95 (6th Cir. 2002) (similar) with United States v. Roach, 582 F.3d 1192, 1207 (10th Cir. 2009) (noting trial court "is required to make specific, on-the-record findings that the testimony is reliable under Daubert."); see also Mukhtar v. Cal. State Univ., Hayward, 319 F.3d 1073, 1076-77 (9th Cir. 2003) (Reinhardt, J., dissenting from denial of rehearing en banc) (discussing various approaches). On the facts of this case, however, this court need not finally resolve whether such findings are required under Arizona Rule of Evidence 702.
¶16 The superior court's mid-January 2012 denial of Harvey's motion in limine was based on pre-January 1, 2012 briefing. In her motion in limine, Harvey did not request findings. Cf. Ariz. R. Civ. P. 52(a) ("[T]he court, if requested before trial, shall find the facts specifically."). Nor did Harvey challenge the court's failure to make findings in her motion to reconsider. Similarly, Harvey's motion for additur or new trial did not claim the superior court erred in failing to make findings. Accordingly, Harvey waived any claim she may have had that the court erred in failing to make findings regarding the admissibility of Dr. Hannon's testimony. See McDonald, 12 Ariz. at 173-75, 100 P. at 458-59 (1909).
¶17 Apart from waiver, given that the motion to preclude was decided on the papers without any hearing, that same record properly may be considered by this court. Moreover, because Dr. Hannon's testimony was not precluded, this court has the further benefit of the transcript of his trial testimony to determine if he properly was allowed to testify. Although this court encourages the superior court to make findings when addressing pre-trial challenges pursuant to Arizona Rule of Evidence 702, and noting that it may be that express findings are required when evidence is excluded, in this case, the superior court did not err in failing to make express findings regarding the admissibility of Dr. Hannon's trial testimony.
D. The Superior Court Did Not Err In Finding Dr. Hannon's Testimony Was Admissible Under Arizona Rule Of Evidence 702.
¶18 Harvey argues Dr. Hannon's testimony was inadmissible on several grounds: a lack of necessary experience, qualifications and foundation; that his opinions did not assist the jury; that the factual basis for his testimony was contrary to the evidence and that his opinions lacked general acceptance in the relevant scientific community and could not be independently verified. This court addresses these arguments in turn.
To the extent Harvey attempts to press new challenges to Dr. Hannon's testimony on appeal, those arguments are deemed waived and will not be considered. See Continental Lighting & Contracting, Inc. v. Premier Grading & Utilities, LLC, 227 Ariz. 382, 386, ¶ 12, 258 P.3d 200, 204 (App. 2011). In addition, the record does not support Harvey's argument before the superior court that Dr. Hannon's testimony violated the presumptive "one independent expert on an issue" per side rule. See Ariz. R. Civ. P. 26(b)(4)(D). Finally, because the superior court did not abuse its discretion in admitting Dr. Hannon's testimony, the court need not (and expressly does not) address Harvey's argument that, if the testimony was erroneously admitted, the error was not harmless and was prejudicial.
¶19 Dr. Hannon received his doctorate in 1980 in exercise science with an emphasis in biomechanics, functional anatomy and neurosciences and has more than twenty years of experience in injury-forensic biomechanics. Dr. Hannon held a tenured faculty position for nearly 30 years; has provided expert testimony at more than 100 trials in civil and criminal cases in state and federal courts and has co-authored a textbook on forensic biomechanics. In preparing his expert report and providing expert testimony, Dr. Hannon reviewed witness statements, deposition transcripts, disclosure statements, medical records, expert reports and did a site visit and analysis. This record indicates that Dr. Hannon had the necessary experience, qualifications and foundation to provide his trial testimony. See Ariz. R. Evid. 702(a); State v. Delgado, 232 Ariz. 182, 186, ¶ 12, 303 P.3d 76, 80 (App. 2013) (citing cases).
¶20 The jury was asked to determine, among other things, the extent of Harvey's claimed injury, the cause of that injury and responsibility for that injury. Dr. Hannon's testimony squarely addressed the cause of the injury. Accordingly, this record supports a finding that Dr. Hannon's testimony would "help the trier of fact to understand the evidence or to determine a fact in issue." Ariz. R. Evid. 702(a).
¶21 Harvey challenged several of the assumptions underlying Dr. Hannon's calculation of the force of the champagne bottle, including Harvey's position in the restaurant seat, the weight of Harvey's head, the cause of the bottle's fall and the trajectory of the bottle. Dr. Hannon's disclosures provided detailed explanations for his opinions and how he arrived at those opinions. The alleged deficits argued by Harvey concern the weight the jury should give Dr. Hannon's testimony, not its admissibility. Harvey vigorously cross-examined Dr. Hannon and further challenged his views through testimony of her own competing expert witnesses. As noted by the Arizona Supreme Court, "[c]ross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky" expert evidence. Ariz. R. Evid. 702 cmt. to 2012 amendment.
¶22 Harvey argues that because "no one saw the champagne bottle on its path from wherever it started from to Ms. Harvey's head," Dr. Hannon's "calculations, conclusions and testimony" were inadmissible. The unstated premise for this argument is that circumstantial evidence is inadmissible. Under Arizona law, however, both direct and circumstantial evidence are admissible and treated the same. Andrews v. Fry's Food Stores of Ariz., 160 Ariz. 93, 96, 770 P.2d 397, 400 (App. 1989) ("Circumstantial evidence has just as much probative value as direct evidence" and "may be used to prove any and all the ultimate facts in a case.") (citing cases). As such, Harvey's argument that Dr. Hannon could not properly provide expert testimony because no one saw the bottle fall and hit her is contrary to Arizona law.
¶23 Dr. Hannon based his opinions about human tolerance for concussion/traumatic brain injury on various studies involving comparatively small numbers of individuals or involving different injuries that Dr. Hannon found were comparable. Harvey argues that such reliance is impermissible, was not generally acceptable and required the exclusion of Dr. Hannon's testimony. General acceptance in the relevant scientific community is a potentially relevant non-exclusive factor to consider when determining admissibility of expert testimony. See Ariz. State Hosp., 231 Ariz. at 473, ¶ 27, 296 P.3d at 1009. Contrary to Harvey's arguments, however, Marriott provided authority showing that Dr. Hannon's approach was proper and that his use of various studies was appropriate, particularly where, for obvious reasons, humans are not intentionally struck in the head in large numbers in controlled environments to determine the force required to cause concussions or brain injuries. There was no error in rejecting this objection to Dr. Hannon's testimony.
¶24 In no small part, Harvey's objections were based on a view that biomechanical engineers should not be allowed to testify as experts. Harvey has cited some cases where, in exercising their discretion, trial courts have precluded such testimony on the specific facts of those cases. There is, however, no per se Arizona rule precluding expert testimony from biomechanical engineers. See Lohmeier v. Hammer, 214 Ariz. 57, 64, ¶ 28, 148 P.3d 101, 108 (App. 2006) (affirming superior court's admission of expert testimony from biomechanical engineer). On this record, Harvey has not shown that the superior court abused its discretion in allowing Dr. Hannon's trial testimony.
In her reply on appeal, Harvey contends that Dr. Hannon's testimony amounted to the unauthorized practice of medicine. Because Harvey failed to raise this argument in her opening brief, it will not be considered. See Duwyenie v. Moran, 220 Ariz. 501, 503 n.3, ¶ 7, 207 P.3d 754, 756 n.3 (App. 2009); see also Lohmeier v. Hammer, 214 Ariz. at 64, ¶ 28, 148 P.3d at 108 ("[U]nder Arizona law, it is not necessary that an expert witness be a medical doctor in order to offer testimony regarding the causation of physical injuries so long as the trial court has properly determined that the expert has specialized knowledge that will assist the jury in its resolution of that issue.") (citation omitted).
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II. Reference To The McDonald's Coffee Verdict.
¶25 Harvey claims Marriott improperly failed to disclose evidence and argument regarding the "McDonald's coffee verdict," which she claims requires a new trial. Disclosure, discovery and new trial rulings are reviewed for an abuse of discretion. heavy v. Parsell, 188 Ariz. 69, 72, 932 P.2d 1340, 1343 (1997); Link v. Pima Cnty., 193 Ariz. 336, 338, ¶ 3, 972 P.2d 669, 671 (App. 1998). Harvey has shown no such abuse of discretion here.
¶26 On direct examination, Marriott's restaurant manager Diana Sanchez testified that she prepared an incident report immediately after Harvey's injury. After Harvey returned to the restaurant later that evening and asked for the champagne bottle, Sanchez testified she prepared a second report:
Q: Okay. So why did you go and prepare a second report?During closing arguments, Marriott's counsel referenced Sanchez's testimony stating, "you can imagine her gut reaction to this. Oh, God. Here it comes. And she even told you she remembered the lady that spilled the coffee on her lap and the big jury award. I better document this. This could go - this could go south real fast, and that's what she does. She writes two reports." Harvey made no timely objection to this testimony or argument. Harvey now claims this testimony and argument were improper references to the McDonald's coffee case, Liebeck v. McDonald's Rests., Inc., CV-93-02419, 1994 WL 360309 (N.M. Dist. Ct. Aug. 18, 1994), vacated, 1994 WL 167777704 (N.M Dist. Ct. Nov. 28, 1994), that was not properly disclosed and that improperly appealed to the jurors' emotions and inflamed their passions, meaning a new trial is required.
A: I did the first one because that was going to go in the file only because of what happened. But when she came back and got the bottle, that was kind of very interesting to me. It scared me, number one. I didn't want to lose my job. Number two, I really had to write everything detailed, detailed just in case something happened.
Q: Well, what did you suspect?
A: In top of my head, it felt like an incident that happened a long time ago. I was at Ronald McDonald's when a lady spilled the coffee. And that's what I felt. And that's why I went back and did all this.
¶27 Because she did not timely object, Harvey waived any objection she may have had to the testimony and closing argument. See Ariz. R. Evid. 103(a); Acuna v. Kroack, 212 Ariz. 104, 114, ¶ 37, 128 P.3d 221, 231 (App. 2006). Moreover, Marriott timely disclosed that Sanchez would testify regarding the statements she prepared on the night of Harvey's injury and the disclosure rules do not require a party to provide a detailed script of expected trial testimony. Englert v. Carondelet Health Network, 199 Ariz. 21, 25, ¶ 7, 13 P.3d 763, 767 (App. 2000). Finally, Harvey has not shown how these brief references to unrelated litigation as explaining why a Marriott employee wrote a second, more detailed report would justify a new trial.
III. Substantial Evidence Supports The Jury's Damage Award.
¶28 Harvey argues the verdict was inadequate and not supported by the evidence, meaning her motion for additur or new trial should have been granted. This court reviews the denial of a motion for new trial or additur for an abuse of discretion, viewing the evidence in the light most favorable to upholding the verdict. See Hutcherson v. City of Phoenix, 192 Ariz. 51, 56, ¶ 27, 961 P.2d 449, 454 (1998); Leavy, 188 Ariz. at 72, 932 P.2d at 1343; Bustamante v. City of Tucson, 145 Ariz. 365, 366, 701 P.2d 861, 862 (App. 1985).
¶29 Harvey argues an additur or new trial was required because, although the jury found Marriott liable with no fault attributed to others, it only awarded Harvey damages for medical expenses incurred in the first few months after the incident. According to Harvey, the jury improperly failed to award her any damages to which she was entitled, including pain and suffering, emotional distress and loss of enjoyment of life.
¶30 In closing arguments, Harvey asked for a $7 million verdict. The evidence offered to support such a demand was Harvey's testimony that she no longer enjoyed life and could not maintain various aspects of her life in the same manner as prior to the accident. Harvey did not offer any evidence quantifying her loss of earning capacity or medical opinions regarding the future medical care she would require. Marriott, in contrast, offered evidence that the champagne bottle did not strike Harvey in the head and that, even if it had, her injuries were not nearly as severe as she claimed. In closing argument, Marriott urged the jury to award Harvey no damages, adding it would not be unreasonable to award medical expenses she incurred during the four months after the incident as the cost for Harvey to get "checked out" to be sure she was not injured.
¶31 A jury may accept certain items of damages and reject others. See Tucson Util. Supplies, Inc. v. Gallagher, 102 Ariz. 499, 502, 433 P.2d 629, 632 (1967). The jury in this case was free to accept or reject Harvey's claim that she had suffered a traumatic brain injury, and the jury also was free to find that she had not suffered any pain, endured emotional distress or lost her enjoyment of life as a result of the accident. Id. This court need not speculate on precisely what the damages award represents. See Burgy v. Hubbard, 119 Ariz. 415, 417, 581 P.2d 260, 262 (App. 1978). To the extent the verdict represents Harvey's medical expenses during the four months following the incident, that verdict would indicate the jury did not accept Harvey's claim that she suffered a continuing, unresolved brain injury. Given the conflicting evidence, and recognizing the jury properly could have returned other verdicts on this record, the verdict of $5,285.68 to Harvey was not so manifestly unfair or unreasonable that it must have been the result of an improper extrinsic consideration. Gallagher, 102 Ariz. at 502, 433 P.2d at 632. Accordingly, the superior court did not abuse its discretion by denying Harvey's motion for additur or new trial.
CONCLUSION
¶32 Finding no error, the verdict and superior court's denial of Harvey's motion for additur or new trial are affirmed.
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