For The Defense, November 2012 - DRI Today
For The Defense, November 2012 - DRI Today
For The Defense, November 2012 - DRI Today
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Product Liability<br />
Conscious Pain<br />
and Suffering<br />
By John F. Parker<br />
and Greg D. Wyles<br />
Carbon Monoxide<br />
Poisoning and<br />
Survival Damages<br />
<strong>The</strong> science involved<br />
in these scenarios<br />
should yield multiple<br />
opportunities for<br />
limiting damage<br />
awards throughout the<br />
litigation process.<br />
Imagine a chilly fall evening. At the end of a long dark<br />
road is a humble house where a mother and father are putting<br />
their kids to bed before retiring for the night. <strong>The</strong><br />
home is quiet except for the low murmur of a gas- powered<br />
generator coming from the basement. <strong>The</strong><br />
father activated the generator to maintain<br />
the heat in the house after a blackout darkened<br />
the neighborhood. However, the father<br />
failed to open some windows to vent<br />
the generator’s emissions, and as the family<br />
drifts off to sleep the house slowly fills with<br />
a potentially lethal gas. <strong>The</strong> next morning,<br />
no one wakes up. We can never determine<br />
whether the father made a mistake or was<br />
simply unaware that the generator required<br />
him to have opened a window. <strong>The</strong>se are the<br />
harrowing circumstances that frequently<br />
lead to carbon monoxide poisoning cases.<br />
A lawsuit will eventually follow, each<br />
party will assemble its teams of experts,<br />
and the parties will litigate the liability<br />
issues. <strong>The</strong> specific facts of each case dictate<br />
whether or not a jury will decide the<br />
outcome; however, the types of damages<br />
available in such cases remain universal<br />
throughout them all. In this article, we will<br />
examine one specific category of damages<br />
in these claims—those awardable for conscious<br />
pain and suffering.<br />
Survival Actions<br />
Alongside wrongful death damages, many<br />
states allow representatives to pursue “survival<br />
actions” for claims that their decedents<br />
could have pursued if they were still<br />
alive. See David Leebron, Final Moments:<br />
Damages for Pain and Suffering Prior to<br />
Death, 64 N.Y.U.L. Rev. 256, 261 (May<br />
1989). Such damages can amount to a great<br />
deal when individuals have suffered a violent<br />
or a protracted period of pain and suffering<br />
or both before their deaths. See, e.g.,<br />
Barrett v. Mulligan, 2010 Ky. App. Unpub.<br />
Lexis 310 (Ken. Ct. App. Apr. 9, 2010)<br />
(affirming a $3,000,000 jury award for<br />
pain and suffering damages when a decedent<br />
sustained severe burns and excruciating<br />
pain in his car for 60 minutes before<br />
arriving at the hospital and being treated<br />
for three days before he died).<br />
46 ■ <strong>For</strong> <strong>The</strong> <strong>Defense</strong> ■ <strong>November</strong> <strong>2012</strong><br />
■ John F. Parker is a partner and Greg D. Wyles is an associate in the New York City office of Mound Cotton<br />
Wollan & Greengrass. Mr. Parker’s area of litigation includes the defense of manufacturers for products<br />
liability claims, toxic tort and long-term exposure defense related to chemical exposures, including lead<br />
paint poisoning, mold, asbestos, benzene, and beryllium. Additionally, Mr. Parker has extensive experience<br />
in defending contractors against labor law and construction defect claims. Mr. Wyles has experience in matters<br />
related to first-party insurance defense and general breach of contract litigation.