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For The Defense, November 2012 - DRI Today

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Product Liability<br />

of their experts to show pain and suffering.<br />

See, e.g., Facciponte, 2011 U.S. Dist.<br />

Lexis 119293 (M.D. Pa. Oct. 17, 2011); Daniel<br />

v. Coleman Co. Inc., 2008 WL 696592<br />

(W.D. Wash. Mar. 11, 2008) (No. 06-cv-<br />

5706). In response, a defense attorney may<br />

then move to exclude this testimony under<br />

the rules of evidence applicable in the relevant<br />

jurisdiction. Most recently, the U.S.<br />

Judges mayreview and<br />

adjust survival damages<br />

even after a jury has<br />

awarded them for conscious<br />

pain and suffering.<br />

District Court for the Middle District of<br />

Pennsylvania grappled with this issue in<br />

Facciponte v. Briggs & Stratton Corp., in<br />

which the families of four men who died<br />

of carbon monoxide poisoning caused by<br />

a portable generator sued its manufacturer<br />

and distributor for, among other things,<br />

pain and suffering damages. Facciponte,<br />

2011 U.S. Dist. Lexis 96646, at *1–2 (M.D.<br />

Pa. Aug. 29, 2011). Here, the defendants<br />

moved to exclude certain portions of the<br />

plaintiffs’ expert’s opinions under Federal<br />

Rule of Evidence 702 and Daubert v. Merrill<br />

Dow Pharmaceuticals, Inc., 509 U.S.<br />

579 (1993), particularly opinion testimony<br />

about whether the decedents, who were<br />

found in close proximity to their sleeping<br />

bags and appear to have perished while<br />

asleep or resting, experienced pain and suffering<br />

before they died. Facciponte, 2011<br />

U.S. Dist. Lexis 96646, at *23–25.<br />

<strong>The</strong> court refused to grant the defendants’<br />

motion to exclude the plaintiffs’<br />

expert’s testimony and explained the ruling<br />

as follows:<br />

Defendants do not dispute that Dr.<br />

Penney, a toxicologist with decades of<br />

experience in researching the effects<br />

of carbon monoxide on animals and<br />

humans, with hundreds of publications<br />

and presentations to scientific audience<br />

on the subject, is qualified by experience<br />

and training to render an opinion<br />

48 ■ <strong>For</strong> <strong>The</strong> <strong>Defense</strong> ■ <strong>November</strong> <strong>2012</strong><br />

in the area of the effects of carbon monoxide<br />

on the decedents in this case. <strong>The</strong><br />

court agrees that Dr. Penney is qualified<br />

on these matters. Defendants urge the<br />

court to find that Penney’s conclusions<br />

about the amount of suffering decedents<br />

experienced, whether they were awake<br />

during their poisoning, and the time of<br />

their deaths are insufficiently supported<br />

by his sources. Defendants’ complaints<br />

are more with the adequacy of Penney’s<br />

conclusions than with the sources for<br />

them. <strong>The</strong> court finds that Penney’s conclusions,<br />

based on his examination of the<br />

scene and investigators’ reports, as well<br />

as his extensive background and study<br />

in carbon monoxide poisoning, are sufficiently<br />

based on facts and data for a jury<br />

to consider. Defendants may make their<br />

arguments about the persuasiveness of<br />

his claims to the jury. <strong>The</strong> motion will<br />

be denied on this point.<br />

Id. at *24–25 (emphasis added).<br />

On a motion for reconsideration, the<br />

court granted the defendants’ motion in<br />

limine to exclude Dr. Penney’s opinion<br />

that the decedents were awake during their<br />

carbon monoxide intoxication as it was<br />

based on lay intuition rather than scientific<br />

method. Facciponte, 2011 U.S. Dist. Lexis<br />

119293, at *14–16 (M.D. Pa. Oct. 17, 2011).<br />

However, the court was not persuaded<br />

when the defendants argued that the court<br />

should exclude Dr. Penney’s opinion about<br />

the decedents’ pain and suffering because<br />

his scientific hypothesis was not actually<br />

testable. Facciponte, 2011 U.S. Dist. Lexis<br />

119293, at *20 (“Dr. Penn[e]y’s methodology—review<br />

of existing animal studies and<br />

the record of human victim interviews—is<br />

a reasonable way to study carbon monoxide<br />

exposure. <strong>The</strong> court is unpersuaded by<br />

defendants’ argument that Dr. Penn[e]y’s<br />

methodology is unreliable because it has<br />

not been tested.”). In other words, even<br />

though the scientific community cannot<br />

expose human subjects to high levels of<br />

carbon monoxide to measure resulting<br />

pain or discomfort, the court preserved the<br />

jury’s ability to hear this aspect of Dr. Penney’s<br />

opinion dealing with carbon monoxide<br />

incapacitation, viewing it as sufficiently<br />

scientifically reliable because Dr. Penney<br />

partly based it on reviews of animal studies<br />

and partly on interviews that he conducted<br />

personally with humans who had<br />

experienced but survived carbon monoxide<br />

poisoning. However, the Facciponte<br />

jury eventually found that the remaining<br />

defendant was not liable, so the jury never<br />

quantified any potential pain and suffering<br />

damages. <strong>The</strong> claim against another<br />

second defendant—the distributor of the<br />

generator—eventually was dropped; therefore,<br />

only one defendant remained during<br />

the final stage of the litigation.<br />

Contrarily, the U.S. District Court<br />

for the Western District of Washington<br />

excluded the same expert’s opinion regarding<br />

pain and suffering damages in a similar<br />

case involving two men who were killed<br />

by carbon monoxide poisoning caused by<br />

their operation of a propane heater. See<br />

Daniel v. Coleman, 2008 WL 696592 (W.D.<br />

Wash. Mar. 11, 2008) (No. 06-cv-5706). A<br />

third victim in Daniel survived the carbon<br />

monoxide when his alarm clock awakened<br />

him before his poisoning became fatal. See<br />

R. Hanley Dep. Tr. at 32:2-7 (Nov. 9, 2006).<br />

In assessing the defendants’ motion to<br />

exclude, Judge Strombom held:<br />

I do have a concern with regard to Dr.<br />

Penney’s opinion with regard to this<br />

consciousness of pain and suffering just<br />

before death. <strong>The</strong> specific information<br />

provided to this court by way of specific<br />

cites to his deposition show that<br />

only I think several people survived and<br />

none of them provided support for Dr.<br />

Penney’s conclusions. <strong>The</strong>re is a federal<br />

court judge here in this building whose<br />

favorite term is “Ipse Dixit,” [in Latin,<br />

“he himself said it”] when he is dealing<br />

with Daubert motions, and I believe<br />

that is the case here with regard to Dr.<br />

Penney’s conclusion that there was consciousness<br />

of—conscious paralysis and<br />

pain and suffering. I don’t think he has<br />

provided any scientific basis to support<br />

that conclusion. <strong>The</strong>re is nothing in the<br />

literature. Peer review, in my view, is<br />

analysis and review done by someone<br />

outside your particular group. <strong>The</strong>re has<br />

nothing been done in that regard. And<br />

while he might be the most qualified<br />

toxicologist in order to give that opinion,<br />

there has to be a basis for it that can<br />

be recreated and analyzed. And I don’t<br />

believe that he has presented that basis to<br />

the court. So I’m going to be excluding his<br />

testimony with regard to that, consciousness<br />

of pain and suffering.

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