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 />
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.