For The Defense, November 2012 - DRI Today

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Product Liability of their experts to show pain and suffering. See, e.g., Facciponte, 2011 U.S. Dist. Lexis 119293 (M.D. Pa. Oct. 17, 2011); Daniel v. Coleman Co. Inc., 2008 WL 696592 (W.D. Wash. Mar. 11, 2008) (No. 06-cv- 5706). In response, a defense attorney may then move to exclude this testimony under the rules of evidence applicable in the relevant jurisdiction. Most recently, the U.S. Judges mayreview and adjust survival damages even after a jury has awarded them for conscious pain and suffering. District Court for the Middle District of Pennsylvania grappled with this issue in Facciponte v. Briggs & Stratton Corp., in which the families of four men who died of carbon monoxide poisoning caused by a portable generator sued its manufacturer and distributor for, among other things, pain and suffering damages. Facciponte, 2011 U.S. Dist. Lexis 96646, at *1–2 (M.D. Pa. Aug. 29, 2011). Here, the defendants moved to exclude certain portions of the plaintiffs’ expert’s opinions under Federal Rule of Evidence 702 and Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), particularly opinion testimony about whether the decedents, who were found in close proximity to their sleeping bags and appear to have perished while asleep or resting, experienced pain and suffering before they died. Facciponte, 2011 U.S. Dist. Lexis 96646, at *23–25. The court refused to grant the defendants’ motion to exclude the plaintiffs’ expert’s testimony and explained the ruling as follows: Defendants do not dispute that Dr. Penney, a toxicologist with decades of experience in researching the effects of carbon monoxide on animals and humans, with hundreds of publications and presentations to scientific audience on the subject, is qualified by experience and training to render an opinion 48 ■ For The Defense ■ November 2012 in the area of the effects of carbon monoxide on the decedents in this case. The court agrees that Dr. Penney is qualified on these matters. Defendants urge the court to find that Penney’s conclusions about the amount of suffering decedents experienced, whether they were awake during their poisoning, and the time of their deaths are insufficiently supported by his sources. Defendants’ complaints are more with the adequacy of Penney’s conclusions than with the sources for them. The court finds that Penney’s conclusions, based on his examination of the scene and investigators’ reports, as well as his extensive background and study in carbon monoxide poisoning, are sufficiently based on facts and data for a jury to consider. Defendants may make their arguments about the persuasiveness of his claims to the jury. The motion will be denied on this point. Id. at *24–25 (emphasis added). On a motion for reconsideration, the court granted the defendants’ motion in limine to exclude Dr. Penney’s opinion that the decedents were awake during their carbon monoxide intoxication as it was based on lay intuition rather than scientific method. Facciponte, 2011 U.S. Dist. Lexis 119293, at *14–16 (M.D. Pa. Oct. 17, 2011). However, the court was not persuaded when the defendants argued that the court should exclude Dr. Penney’s opinion about the decedents’ pain and suffering because his scientific hypothesis was not actually testable. Facciponte, 2011 U.S. Dist. Lexis 119293, at *20 (“Dr. Penn[e]y’s methodology—review of existing animal studies and the record of human victim interviews—is a reasonable way to study carbon monoxide exposure. The court is unpersuaded by defendants’ argument that Dr. Penn[e]y’s methodology is unreliable because it has not been tested.”). In other words, even though the scientific community cannot expose human subjects to high levels of carbon monoxide to measure resulting pain or discomfort, the court preserved the jury’s ability to hear this aspect of Dr. Penney’s opinion dealing with carbon monoxide incapacitation, viewing it as sufficiently scientifically reliable because Dr. Penney partly based it on reviews of animal studies and partly on interviews that he conducted personally with humans who had experienced but survived carbon monoxide poisoning. However, the Facciponte jury eventually found that the remaining defendant was not liable, so the jury never quantified any potential pain and suffering damages. The claim against another second defendant—the distributor of the generator—eventually was dropped; therefore, only one defendant remained during the final stage of the litigation. Contrarily, the U.S. District Court for the Western District of Washington excluded the same expert’s opinion regarding pain and suffering damages in a similar case involving two men who were killed by carbon monoxide poisoning caused by their operation of a propane heater. See Daniel v. Coleman, 2008 WL 696592 (W.D. Wash. Mar. 11, 2008) (No. 06-cv-5706). A third victim in Daniel survived the carbon monoxide when his alarm clock awakened him before his poisoning became fatal. See R. Hanley Dep. Tr. at 32:2-7 (Nov. 9, 2006). In assessing the defendants’ motion to exclude, Judge Strombom held: I do have a concern with regard to Dr. Penney’s opinion with regard to this consciousness of pain and suffering just before death. The specific information provided to this court by way of specific cites to his deposition show that only I think several people survived and none of them provided support for Dr. Penney’s conclusions. There is a federal court judge here in this building whose favorite term is “Ipse Dixit,” [in Latin, “he himself said it”] when he is dealing with Daubert motions, and I believe that is the case here with regard to Dr. Penney’s conclusion that there was consciousness of—conscious paralysis and pain and suffering. I don’t think he has provided any scientific basis to support that conclusion. There is nothing in the literature. Peer review, in my view, is analysis and review done by someone outside your particular group. There has nothing been done in that regard. And while he might be the most qualified toxicologist in order to give that opinion, there has to be a basis for it that can be recreated and analyzed. And I don’t believe that he has presented that basis to the court. So I’m going to be excluding his testimony with regard to that, consciousness of pain and suffering.
Hearing Tr. of Hon. Karen Strombom at 43:20–44:19 (Mar. 20, 2008) (emphasis added). The jury in Daniel eventually found in favor of the defendants. See Daniel v. Coleman Co. Inc., 599 F.3d 1045, 1047 (9th Cir. 2010) (denying the motion for a new trial). Accordingly, it is difficult to predict how different judges will react, even to the identical expert’s opinion. However, without eyewitness testimony or physical evidence, and without the ability to introduce expert opinion about alleged conscious pain and suffering, it would seem highly onerous for a plaintiff to meet the plaintiff’s burden of proving these damages during a trial. Post-Verdict Remedies Judges may review and adjust survival damages even after a jury has awarded them for conscious pain and suffering. See Leebron, supra, at 308. For example, New York courts will adjust survival awards through remittitur if they find them to be “grossly excessive.” See Alfieri v. Cabot Corp., 17 A.D.2d 455, 235 N.Y.S.2d 753, 760 (N.Y. App. Div. 1962) (ordering a new trial unless the defendant stipulated to reduce a $20,000 pain and suffering award to $7,500 for an individual who died of carbon monoxide poisoning seemingly in his sleep; “[t]here is no evidence to sustain the award to plaintiff Alfieri for conscious pain and suffering. There is no evidence that the deceased ever regained consciousness, or experienced pain. In fact the testimony offered by plaintiff was to the effect that carbon monoxide has a ‘stuporing, stupefying effect… of not making a person alert’ to the danger.”), aff’d, 13 N.Y.2d 1027, 195 N.E.2d 310, 245 N.Y.S.2d 600 (N.Y. 1963); Caldecott v. LILCO, 417 F.2d 994, 996 (2d Cir. 1969) (awarding remittitur for conscious pain and suffering award). When judges issue remittiturs they tend to reduce the conscious pain and suffering awards by approximately half. See Leebron, supra, at 308. Consequently, even if a defendant’s motion for a summary judgment fails, and a jury ends up awarding damages for pain and suffering, a judge may still substantively reduce them should he or she find them to be grossly disproportionate. Additionally, a defense attorney sometimes can diminish the likelihood that a jury will award pain and suffering damages if the attorney can exclude the expert opinion advancing the decedent’s pain and suffering earlier in the proceedings. Partly because the science behind conscious pain and suffering in these situations often seems as ephemeral and transient as fatal carbon monoxide gas itself, this scenario yields multiple opportunities for limiting conscious pain and suffering damage awards throughout the litigation process. Product Liability/Evaluation Product failures and operator contact with machine parts can lead to catastrophic events resulting in human injury and property damage. These events may be the result of errors made during a product’s design, manufacture, or assembly. An understanding of product development, from inception to delivery, enables our engineers to identify deficiencies in these processes and render opinions regarding machine designs, guards, and warnings. We have evaluated hundreds of products and honed the skills necessary to pinpoint the cause of failures and related defects. RELY ON OUR EXPERIENCE. RELY ON OUR EXPERTS. Visit www.semke.com for more information. 888.804.5020 For The Defense ■ November 2012 ■ 49
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