For The Defense, November 2012 - DRI Today

Conscious Pain and Suffering
Putting aside “pre- impact 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
“pre- impact 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 pre- impact 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 pre- impact 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