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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Conscious Pain and Suffering<br />
Putting aside “pre- impact terror” damages<br />
that the laws of some states provide, courts<br />
generally will deny conscious pain and suffering<br />
damages when a decedent has perished<br />
instantaneously or was unconscious<br />
throughout an entire ordeal. See Phiri v.<br />
Joseph, 32 A.D.3d 922, 923, 822 N.Y.S.2d<br />
573 (N.Y. App. Div. 2006) (granting a summary<br />
judgment denying conscious pain<br />
and suffering damages because evidence<br />
showed that decedent perished instantaneously);<br />
Collins v. Jamaica Hosp., 195<br />
A.D.2d 534, 534, 600 N.Y.S.2d 729 (N.Y.<br />
App. Div. 1993) (granting a summary judgment<br />
denying pain and suffering damages<br />
because defendants introduced sufficient<br />
evidence to show that decedent was anesthetized<br />
from time of injury up until her<br />
death). While this article will not cover<br />
“pre- impact terror” damages, some states<br />
will award these damages when a decedent<br />
sees the instrument of his or her<br />
death thereby becoming severely frightened.<br />
Compare Cochrane v. Schneider Nat’l<br />
Carriers, Inc., 968 F. Supp. 613, 615 (D.<br />
Kan. 1997) (indicating that Kansas does<br />
not allow damages for pre- impact fright),<br />
and Byrd v. Wal-Mart Transport. LLC, 2009<br />
U.S. Dist. Lexis 99692, at *16 (S.D. Ga. Oct.<br />
23, 2009) (disallowing damages for preimpact<br />
fright; however, writing in dicta,<br />
“Georgia law requires some evidence that<br />
the decedents actually anticipated the collision<br />
before a recovery… is allowed”) (citations<br />
omitted).<br />
Conscious pain and suffering damages<br />
become more complicated, however, when<br />
someone does not die instantly but experiences<br />
unconsciousness, semiconsciousness,<br />
or both during the relevant time<br />
period before death. This happens very<br />
often with carbon monoxide poisoning.<br />
See, e.g., Facciponte v. Briggs & Stratton<br />
Corp., 2011 U.S. Dist. Lexis 96646 (M.D.<br />
Pa. Aug. 29, 2011).<br />
Carbon monoxide poisoning produces<br />
what is frequently described as flu-like<br />
symptoms manifesting in headache and<br />
vomiting before death. See Turner v. Wilson<br />
Line of Mass., 242 F.2d 414, 419 (1st<br />
Cir. 1957). In fact, the evidence in fatal carbon<br />
monoxide poisoning cases often shows<br />
that the exposures took place overnight and<br />
that the decedents seemed to be asleep during<br />
the relevant time periods. See, e.g., Facciponte,<br />
2011 U.S. Dist. Lexis 96646 (M.D.<br />
Pa. Aug. 29, 2011). Such scenarios appear<br />
ripe for partial summary judgment successes<br />
on the conscious pain and suffering<br />
portions of damages. But cases involving<br />
fatal instances of carbon monoxide poisoning<br />
are distinct from cases that deal with<br />
pain and suffering when individuals live<br />
through these ordeals only to experience<br />
ongoing health problems, or from cases<br />
involving fatal carbon monoxide poisoning<br />
accompanied by exposure to fire. See,<br />
e.g., DuBose v. Bhakta (Dallam Co. Tex.,<br />
June 17, 2004) (apportioning $305,000 of<br />
a jury verdict award for pain and suffering<br />
caused by near fatal carbon monoxide<br />
exposure resulting in long-term injury);<br />
McCord- Shell v. Volkswagen of Am., Inc.,<br />
736 F. Supp. 172, 174 (N.D. Il. 1990) (differentiating<br />
between levels of pain and suffering<br />
associated with burning to death versus<br />
being asphyxiated by the carbon monoxide<br />
caused by the flames).<br />
Motions for Partial<br />
Summary Judgments<br />
While a plaintiff bears the burden of proving<br />
conscious pain and suffering during<br />
the trial stage, for a defendant to succeed<br />
with a motion for a summary judgment<br />
dismissing such damages, the defendant<br />
must conversely show the absence of such<br />
proof. See Phiri, 32 A.D.3d at 923 (granting<br />
a summary judgment in favor of the<br />
defendants on the pain and suffering claim<br />
in a car accident case because the plaintiff<br />
failed to introduce a question of fact on the<br />
decedent’s consciousness after the accident<br />
or pre- impact terror beforehand); Haque v.<br />
Daddazio, 84 A.D.3d 940, 941, 922 N.Y.S.2d<br />
548 (N.Y. App. Div. 2011) (reinstating a<br />
summary judgment granted in favor of the<br />
defendants on the pain and suffering claim<br />
because the plaintiff did not introduce<br />
a question of fact on the decedent’s post<br />
accident consciousness in a car accident<br />
case); Collins, 195 A.D.2d at 534 (reversing<br />
a denial of the defendants’ motion for<br />
a summary judgment on pain and suffering<br />
damages in a medical malpractice case<br />
because the defendants introduced sufficient<br />
evidence to show that the decedent<br />
was anesthetized the entire time until her<br />
death). <strong>The</strong>refore, the challenges of proof<br />
that defendants face in their motions for<br />
summary judgments foreshadow those<br />
that plaintiffs eventually will face during<br />
trials.<br />
Furthermore, while evidence of conscious<br />
pain and suffering can be relatively<br />
straightforward in car accident cases<br />
such as Haque and Phiri, it can be trickier<br />
when it comes to carbon monoxiderelated<br />
deaths. Because carbon monoxide<br />
is a “silent killer” and intoxicant (1) eyewitnesses<br />
are seldom available to testify about<br />
the consciousness of decedents during the<br />
exposure periods, and (2) carbon monoxide<br />
poisoning can coexist with and precipitate<br />
a sleep state.<br />
In fact, very few judicial opinions have<br />
assessed the merits of a motion for a summary<br />
judgment on pain and suffering damages<br />
when someone has died in his or her<br />
sleep from carbon monoxide poisoning.<br />
See Boushele v. Anderson’s Heating and<br />
Air Cond., Inc., 1999 Mont. Dist. Lexis 347,<br />
at *11 (Missoula Co. Mont. Feb. 17, 1999)<br />
(“Defendants… contend that the claim for<br />
pain and suffering cannot survive, as the<br />
deceased died in his sleep, and no evidence<br />
has been shown that he experienced conscious<br />
pain and suffering. Plaintiff counters<br />
that existence of therapeutic levels of<br />
pain reliever in the decedent’s blood points<br />
to the possibility of some distress prior to<br />
death. Plaintiff also notes the position of<br />
decedent on his bed points to some distress.<br />
While Plaintiffs’ position is tenuous,<br />
a question of fact exists nonetheless, and<br />
summary judgment is hereby denied.”);<br />
Masters v. Courtesy <strong>For</strong>d Co., Inc., 758 So.<br />
2d 171 (La. Ct. App. 2000) (finding that the<br />
plaintiff was unable to recover damages<br />
for pain and suffering as the decedent was<br />
unconscious because of carbon monoxide<br />
before the crash resulting in his death),<br />
vacated on other grounds by, 765 So. 2d<br />
1056 (La. 2000). But the decisions do not<br />
include enough on-point analysis to offer<br />
much guidance about when the courts generally<br />
view a defendant’s evidence as sufficient<br />
to support a summary judgment for<br />
a defendant regarding conscious pain and<br />
suffering damages in a fatal carbon monoxide<br />
case.<br />
Motions to Exclude<br />
Evidence from Trials<br />
Without eyewitnesses and physical evidence<br />
pertaining to consciousness, plaintiffs<br />
will often depend on the speculation<br />
<strong>For</strong> <strong>The</strong> <strong>Defense</strong> ■ <strong>November</strong> <strong>2012</strong> ■ 47