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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Hearing Tr. of Hon. Karen Strombom at<br />
43:20–44:19 (Mar. 20, 2008) (emphasis<br />
added). <strong>The</strong> jury in Daniel eventually found<br />
in favor of the defendants. See Daniel v.<br />
Coleman Co. Inc., 599 F.3d 1045, 1047 (9th<br />
Cir. 2010) (denying the motion for a new<br />
trial).<br />
Accordingly, it is difficult to predict how<br />
different judges will react, even to the identical<br />
expert’s opinion. However, without<br />
eyewitness testimony or physical evidence,<br />
and without the ability to introduce expert<br />
opinion about alleged conscious pain and<br />
suffering, it would seem highly onerous for<br />
a plaintiff to meet the plaintiff’s burden of<br />
proving these damages during a trial.<br />
Post-Verdict Remedies<br />
Judges may review and adjust survival damages<br />
even after a jury has awarded them for<br />
conscious pain and suffering. See Leebron,<br />
supra, at 308. <strong>For</strong> example, New York courts<br />
will adjust survival awards through remittitur<br />
if they find them to be “grossly excessive.”<br />
See Alfieri v. Cabot Corp., 17 A.D.2d<br />
455, 235 N.Y.S.2d 753, 760 (N.Y. App. Div.<br />
1962) (ordering a new trial unless the defendant<br />
stipulated to reduce a $20,000 pain<br />
and suffering award to $7,500 for an individual<br />
who died of carbon monoxide poisoning<br />
seemingly in his sleep; “[t]here is<br />
no evidence to sustain the award to plaintiff<br />
Alfieri for conscious pain and suffering.<br />
<strong>The</strong>re is no evidence that the deceased<br />
ever regained consciousness, or experienced<br />
pain. In fact the testimony offered<br />
by plaintiff was to the effect that carbon<br />
monoxide has a ‘stuporing, stupefying effect…<br />
of not making a person alert’ to the<br />
danger.”), aff’d, 13 N.Y.2d 1027, 195 N.E.2d<br />
310, 245 N.Y.S.2d 600 (N.Y. 1963); Caldecott<br />
v. LILCO, 417 F.2d 994, 996 (2d Cir. 1969)<br />
(awarding remittitur for conscious pain and<br />
suffering award). When judges issue remittiturs<br />
they tend to reduce the conscious pain<br />
and suffering awards by approximately half.<br />
See Leebron, supra, at 308.<br />
Consequently, even if a defendant’s motion<br />
for a summary judgment fails, and a<br />
jury ends up awarding damages for pain<br />
and suffering, a judge may still substantively<br />
reduce them should he or she find<br />
them to be grossly disproportionate. Additionally,<br />
a defense attorney sometimes<br />
can diminish the likelihood that a jury will<br />
award pain and suffering damages if the attorney<br />
can exclude the expert opinion advancing<br />
the decedent’s pain and suffering<br />
earlier in the proceedings. Partly because<br />
the science behind conscious pain and suffering<br />
in these situations often seems as<br />
ephemeral and transient as fatal carbon<br />
monoxide gas itself, this scenario yields<br />
multiple opportunities for limiting conscious<br />
pain and suffering damage awards<br />
throughout the litigation process.<br />
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<strong>For</strong> <strong>The</strong> <strong>Defense</strong> ■ <strong>November</strong> <strong>2012</strong> ■ 49