For The Defense, November 2012 - DRI Today

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Product Liability Conscious Pain and Suffering By John F. Parker and Greg D. Wyles Carbon Monoxide Poisoning and Survival Damages The science involved in these scenarios should yield multiple opportunities for limiting damage awards throughout the litigation process. Imagine a chilly fall evening. At the end of a long dark road is a humble house where a mother and father are putting their kids to bed before retiring for the night. The home is quiet except for the low murmur of a gas- powered generator coming from the basement. The father activated the generator to maintain the heat in the house after a blackout darkened the neighborhood. However, the father failed to open some windows to vent the generator’s emissions, and as the family drifts off to sleep the house slowly fills with a potentially lethal gas. The next morning, no one wakes up. We can never determine whether the father made a mistake or was simply unaware that the generator required him to have opened a window. These are the harrowing circumstances that frequently lead to carbon monoxide poisoning cases. A lawsuit will eventually follow, each party will assemble its teams of experts, and the parties will litigate the liability issues. The specific facts of each case dictate whether or not a jury will decide the outcome; however, the types of damages available in such cases remain universal throughout them all. In this article, we will examine one specific category of damages in these claims—those awardable for conscious pain and suffering. Survival Actions Alongside wrongful death damages, many states allow representatives to pursue “survival actions” for claims that their decedents could have pursued if they were still alive. See David Leebron, Final Moments: Damages for Pain and Suffering Prior to Death, 64 N.Y.U.L. Rev. 256, 261 (May 1989). Such damages can amount to a great deal when individuals have suffered a violent or a protracted period of pain and suffering or both before their deaths. See, e.g., Barrett v. Mulligan, 2010 Ky. App. Unpub. Lexis 310 (Ken. Ct. App. Apr. 9, 2010) (affirming a $3,000,000 jury award for pain and suffering damages when a decedent sustained severe burns and excruciating pain in his car for 60 minutes before arriving at the hospital and being treated for three days before he died). 46 ■ For The Defense ■ November 2012 ■ John F. Parker is a partner and Greg D. Wyles is an associate in the New York City office of Mound Cotton Wollan & Greengrass. Mr. Parker’s area of litigation includes the defense of manufacturers for products liability claims, toxic tort and long-term exposure defense related to chemical exposures, including lead paint poisoning, mold, asbestos, benzene, and beryllium. Additionally, Mr. Parker has extensive experience in defending contractors against labor law and construction defect claims. Mr. Wyles has experience in matters related to first-party insurance defense and general breach of contract litigation.
Conscious Pain and Suffering Putting aside “preimpact terror” damages that the laws of some states provide, courts generally will deny conscious pain and suffering damages when a decedent has perished instantaneously or was unconscious throughout an entire ordeal. See Phiri v. Joseph, 32 A.D.3d 922, 923, 822 N.Y.S.2d 573 (N.Y. App. Div. 2006) (granting a summary judgment denying conscious pain and suffering damages because evidence showed that decedent perished instantaneously); Collins v. Jamaica Hosp., 195 A.D.2d 534, 534, 600 N.Y.S.2d 729 (N.Y. App. Div. 1993) (granting a summary judgment denying pain and suffering damages because defendants introduced sufficient evidence to show that decedent was anesthetized from time of injury up until her death). While this article will not cover “preimpact terror” damages, some states will award these damages when a decedent sees the instrument of his or her death thereby becoming severely frightened. Compare Cochrane v. Schneider Nat’l Carriers, Inc., 968 F. Supp. 613, 615 (D. Kan. 1997) (indicating that Kansas does not allow damages for preimpact fright), and Byrd v. Wal-Mart Transport. LLC, 2009 U.S. Dist. Lexis 99692, at *16 (S.D. Ga. Oct. 23, 2009) (disallowing damages for preimpact fright; however, writing in dicta, “Georgia law requires some evidence that the decedents actually anticipated the collision before a recovery… is allowed”) (citations omitted). Conscious pain and suffering damages become more complicated, however, when someone does not die instantly but experiences unconsciousness, semiconsciousness, or both during the relevant time period before death. This happens very often with carbon monoxide poisoning. See, e.g., Facciponte v. Briggs & Stratton Corp., 2011 U.S. Dist. Lexis 96646 (M.D. Pa. Aug. 29, 2011). Carbon monoxide poisoning produces what is frequently described as flu-like symptoms manifesting in headache and vomiting before death. See Turner v. Wilson Line of Mass., 242 F.2d 414, 419 (1st Cir. 1957). In fact, the evidence in fatal carbon monoxide poisoning cases often shows that the exposures took place overnight and that the decedents seemed to be asleep during the relevant time periods. See, e.g., Facciponte, 2011 U.S. Dist. Lexis 96646 (M.D. Pa. Aug. 29, 2011). Such scenarios appear ripe for partial summary judgment successes on the conscious pain and suffering portions of damages. But cases involving fatal instances of carbon monoxide poisoning are distinct from cases that deal with pain and suffering when individuals live through these ordeals only to experience ongoing health problems, or from cases involving fatal carbon monoxide poisoning accompanied by exposure to fire. See, e.g., DuBose v. Bhakta (Dallam Co. Tex., June 17, 2004) (apportioning $305,000 of a jury verdict award for pain and suffering caused by near fatal carbon monoxide exposure resulting in long-term injury); McCord- Shell v. Volkswagen of Am., Inc., 736 F. Supp. 172, 174 (N.D. Il. 1990) (differentiating between levels of pain and suffering associated with burning to death versus being asphyxiated by the carbon monoxide caused by the flames). Motions for Partial Summary Judgments While a plaintiff bears the burden of proving conscious pain and suffering during the trial stage, for a defendant to succeed with a motion for a summary judgment dismissing such damages, the defendant must conversely show the absence of such proof. See Phiri, 32 A.D.3d at 923 (granting a summary judgment in favor of the defendants on the pain and suffering claim in a car accident case because the plaintiff failed to introduce a question of fact on the decedent’s consciousness after the accident or preimpact terror beforehand); Haque v. Daddazio, 84 A.D.3d 940, 941, 922 N.Y.S.2d 548 (N.Y. App. Div. 2011) (reinstating a summary judgment granted in favor of the defendants on the pain and suffering claim because the plaintiff did not introduce a question of fact on the decedent’s post accident consciousness in a car accident case); Collins, 195 A.D.2d at 534 (reversing a denial of the defendants’ motion for a summary judgment on pain and suffering damages in a medical malpractice case because the defendants introduced sufficient evidence to show that the decedent was anesthetized the entire time until her death). Therefore, the challenges of proof that defendants face in their motions for summary judgments foreshadow those that plaintiffs eventually will face during trials. Furthermore, while evidence of conscious pain and suffering can be relatively straightforward in car accident cases such as Haque and Phiri, it can be trickier when it comes to carbon monoxiderelated deaths. Because carbon monoxide is a “silent killer” and intoxicant (1) eyewitnesses are seldom available to testify about the consciousness of decedents during the exposure periods, and (2) carbon monoxide poisoning can coexist with and precipitate a sleep state. In fact, very few judicial opinions have assessed the merits of a motion for a summary judgment on pain and suffering damages when someone has died in his or her sleep from carbon monoxide poisoning. See Boushele v. Anderson’s Heating and Air Cond., Inc., 1999 Mont. Dist. Lexis 347, at *11 (Missoula Co. Mont. Feb. 17, 1999) (“Defendants… contend that the claim for pain and suffering cannot survive, as the deceased died in his sleep, and no evidence has been shown that he experienced conscious pain and suffering. Plaintiff counters that existence of therapeutic levels of pain reliever in the decedent’s blood points to the possibility of some distress prior to death. Plaintiff also notes the position of decedent on his bed points to some distress. While Plaintiffs’ position is tenuous, a question of fact exists nonetheless, and summary judgment is hereby denied.”); Masters v. Courtesy Ford Co., Inc., 758 So. 2d 171 (La. Ct. App. 2000) (finding that the plaintiff was unable to recover damages for pain and suffering as the decedent was unconscious because of carbon monoxide before the crash resulting in his death), vacated on other grounds by, 765 So. 2d 1056 (La. 2000). But the decisions do not include enough on-point analysis to offer much guidance about when the courts generally view a defendant’s evidence as sufficient to support a summary judgment for a defendant regarding conscious pain and suffering damages in a fatal carbon monoxide case. Motions to Exclude Evidence from Trials Without eyewitnesses and physical evidence pertaining to consciousness, plaintiffs will often depend on the speculation For The Defense ■ November 2012 ■ 47
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