This edition of “What’s it Worth?” is the second of a two part series on wrongful death cases. In any wrongful death case, damages are awarded in three different categories: pecuniary losses, pain and suffering/non-economic damages, and special/economic damages. This week, we will be focusing on conscious pain and suffering and “pre-impact terror.” In order to sustain a pain and suffering claim, there must be evidence that the decedent experienced cognitive awareness, meaning that the decedent was conscious after the occurrence. It is important to note that mere conjecture, surmise, or speculation is not enough to sustain a claim for pain and suffering damages. In order to sustain a claim for pre-impact terror, it must be shown that the decedent had some knowledge or other basis for anticipating the impending disaster. Eyewitness testimony is helpful when determining these claims. You will recognize some of these cases from last week, however this time we analyzed the pain and suffering conscious pain and suffering claims. We also apologize for this edition being longer than normal. We will make it up to you next week!
IN THE MATTER OF 91ST STREET CRANE COLLAPSE LITIGATION V. CITY OF NEW YORK (110069/08)
REDUCED: March 15, 2018, Appellate Division, First Department
VENUE: Supreme New York
TYPE OF CASE: Wrongful Death
FACTS: Two men were working at a construction site. The 30 year old man was inside of the cab of a crane 14 stories above 91st Street while the 27 year old man was working on the street below. The crane tilted, rocked, and then sheared off its supporting turntable and collapsed. The crane fell 200 feet with the 30 year old decedent inside. As it fell, the crane struck a building and bounced off several terraces, and eventually came to a crash landing on the pavement. The 27 year old man was hit by the falling crane. Both men were killed.
PAIN AND SUFFERING:
- According to the evidence produced at the trial 20 seconds passed from the initial crane rocking to the crash onto the street. The 30 year old man in the crane was aware of his impending death in those 20 seconds.
- Witnesses testified to seeing a look of panic and fear on decedent’s face. He was making hand movements and apparently praying. He was seen bracing himself in the moment before the crane fell off of the building, indicating that he knew he was about to die.
- The impact resulted in a massive head trauma, as well as severe fractures to his arms, legs, ribs and pelvis. He was in excruciating pain for approximately 16 minutes before he was pronounced dead at the scene, as the EMT reported him to be alive and conscious 7 minutes after the accident and the medical examiner determined that he died 9 minutes after that.
- The 27 year old man working on the ground heard the crane collapse and ran to warn others. 20 seconds later, he was struck by the crane.
- The 27 year old man sustained degloving and bone-shattering injuries.
- He was aware that the crane was about to collapse on him and tried to protect himself.
- He was trapped under the wreckage for 20 minutes, awake, conscious, and screaming in obvious pain. He maintained consciousness for the 10 minute ambulance ride to the hospital. At the hospital, he was intubated and given paralytics within 6 minutes of arriving. Two and a half hours after he arrived at the hospital, he was taken into surgery. He died on the operating table.
- Both plaintiffs in this case experienced pre-impact terror and conscious pain and suffering.
- The jury awarded the 30 year old decedent’s family $15,500,000 ($7,500,000 for pre-impact terror and $8,000,000 for pain and suffering) and the 27 year old man’s family $31,500,000 ($7,500,000 for pre-impact pain and suffering and $24,000,000 for pain and suffering.) The Appellate Division then reduced the awards to $8,000,000 ($2,500,000 for pre-impact terror and $5,500,000 for past pain and suffering) for the 30 year old man’s family and $9,500,000 ($2,000,000 for pre-impact terror and $7,500,000 for pain and suffering) for the 27 year old man’s family.
MATTER OF MURPHY-CLAGETT V. A.O. SMITH CORP (190311/15)
REDUCED: January 30, 2019, Appellate Division, First Department
VENUE: Supreme New York
TYPE OF CASE: Wrongful Death
FACTS: A 55 year old man was exposed to asbestos dust when he took part in removing heating systems, predominantly demolishing boilers, from residences in Brooklyn between 1972 or 1973-1982. The exposure resulted in a mesothelioma, or a malignant tumor that usually forms in the lining of the lungs, abdomen, or heart. The life expectancy of those diagnosed with mesothelioma is 12 months after diagnosis.
PAIN AND SUFFERING/NON-ECONOMIC LOSSES:
- The plaintiff was diagnosed with a mesothelioma in the summer of 2015.
- Bronchoscopy followed by a Thoracotomy, during which approximately three liters of fluid were removed from his chest cavity.
- Pleurectomy to remove the pleura (a pair of serous membranes lining the throax and enveloping the lungs) in his left lung and scrape the chest cavity.
- Removal of his diaphragm resulting in reconstruction.
- Bone infection resulting in severe pain, and eventually a spinal catheter to control the pain.
- Constant pain, nausea, lack of appetite.
- He was too weak for chemotherapy and needed help to go to the bathroom.
- The trial jury awarded $25 million for pain and suffering. Post-trial motions resulted in the award being reduced to $10 million. The Appellate Division, First Department reduced the award yet again to $4 million because it found that the even with the post-trial reduction, the award materially deviated from reasonable compensation.
VARGAS V. CROWN CONTAINER CO., INC. (114 A.D. 3d 762)
REDUCED: November 22, 2017, Appellate Division, Second Department
VENUE: Supreme Kings
TYPE OF CASE: Wrongful Death
FACTS: A 22 year old employee of Crown Container Co., Inc. was killed when a private garbage truck lurched backward, pinned and crushed him against a dumpster in a driveway.
PAIN AND SUFFERING/NON-ECONOMIC LOSSES:
- The plaintiff was facing the rear of the truck when the compactor started.
- The plaintiff’s expert engineer testified that it would’ve taken less than a second for the truck to strike the plaintiff after it started moving in reverse.
- According to the plaintiff’s medical expert, none of his injuries would have caused him to lose consciousness immediately. The expert claimed that the decedent died from his internal injuries one or two minutes after impact.
- The plaintiff experienced several rib fractures and abrasions.
- The jury awarded $1 million for pre-impact terror and $2 million for conscious pain and suffering. The Appellate Division, First Department reduced the award to $250,000 for pre impact terror and $750,000 for conscious pain and suffering.
GREVELDING V. STATE OF NEW YORK (132 A.D. 3d 1332 (2015))
AFFIRMED: October 9, 2015, Appellate Division, Fourth Department
VENUE: Court of Claims of New York
TYPE OF CASE: Wrongful Death
FACTS: A 28 year old man was passing over a bridge on the interstate, lost control of his car on the icy road, struck a snowbank against a concrete barrier, and fell onto the roadway below.
PAIN AND SUFFERING/NON-ECONOMIC LOSSES:
- The police determined that the vehicle fell 36.2 feet, rolled over in midair, and landed on its roof, 32 feet from the edge of the bridge. The slowest the vehicle could have been traveling when it contacted the snowbank was 22 mph and it minimum speed when it left the barrier was 14.48 mph.
- The firefighter who was the first to arrive at the vehicle testified that the plaintiff’s seatbelt was still fastened, however his head was bent at an unnatural angle with his forehead almost touching his chest. When he checked for a pulse, he felt none. The decedent had no eye opening, verbal, or motor response.
- The firefighter did not recall seeing any blood in the vehicle, and he noted that the decedent’s skin was ashen in color indicating no blood/oxygen flow to the head.
- The EMT on the scene testified that there was a chance the plaintiff suffered an intracranial bleed or that the crash energy was absorbed by mostly his neck.
- The decedent’s wife did not want an autopsy performed. The medical examiner respected her wishes and instead performed an external examination with an x-ray, through which he found that:
- A 2.5 cm abrasion on the anterior forehead slightly to the right of midline;
- A 0.8 cm abrasion on the left bridge of the nose;
- Fractures of the upper incisors;
- Fractures at either C6-C7 or C7-T1, lower cervical vertebrae, the left clavicle, left ribs #1-3 and right rib #1.
- The medical examiner opined that the neck fracture would have left the plaintiff paralyzed from the neck down but his respiration functions would not have been affected by the fracture. As a result, he probably lived for one to two minutes after impact but struggled to breathe from his position and passed out from an element of asphyxia based on his positioning in the vehicle, as evidenced the petechiae in the face and upper body.
- The medical examiner concluded that the cause of death was multiple blunt force injuries due to the motor vehicle accident.
- The medical examiner testified that the absence of the autopsy made it impossible to determine the length of time before the decedent was rendered unconscious.
- A Board Certified expert in Clinical and Forensic Pathology retained by the defendant disagreed with the medical examiner’s analysis, instead finding that the spinal fracture was at C2, which would have resulted in an immediate loss of consciousness.
- The Court found that there was no direct or circumstantial evidence that the decedent was conscious after impact, therefore a claim for conscious pain and suffering could not be sustained.
- An expert in Experimental Psychology testified for the plaintiff, stating that based on the physiology of human perception and reaction, that the plaintiff would have experienced fear based on the perception of the visual and linear changes occurring. The Court found that based on the facts of the accident and the expert’s testimony, the decedent experienced pre-impact terror for more than two seconds.
- The Court awarded $250,000 for pre-impact terror only. According to the Bureau of Labor Statistics, $250,000 in 2015 is equivalent to $270,979.62 in 2020.
ESTEVEZ V. TAM (148 A.D. 2017)
DECIDED: March 8, 2017
VENUE: Supreme Nassau
TYPE OF CASE: Wrongful Death
FACTS: A 64 year old man wearing dark clothing was crossing the street at night during a rain storm when he was hit by a car making a left turn. The plaintiff died at the scene. There were no eyewitness accounts.
PAIN AND SUFFERING/NON-ECONOMIC LOSSES:
- Approximately 18 months before the trial, the defense moved for summary judgement dismissing the claims for pre-impact terror and pre-death pain and suffering. The judge denied the motion, partially because the driver stated that the decedent “looked conscious” at the scene” and a passenger had signed an affidavit stating that the decedent moved his left hand while on the ground.
- An expert pathologist testified for the defense, stating that the plaintiff suffered brain damage and lost consciousness when the car hit him, therefore any body movements at the scene were not voluntary.
- The treating coroner testified for the plaintiff that based on the autopsy, the decedent experienced a moment of pre-impact terror and pre-death conscious pain and suffering.
- The jury decided in favor of the defense, awarding nothing for pain and suffering.
- The jury’s findings regarding pain and suffering were not appealed (unlike the pecuniary losses).
VATALARO V. COUNTY OF SUFFOLK (163 A.D.3d 893)
REDUCED: July 18, 2018, Appellate Division, Second Department
VENUE: Supreme Suffolk
TYPE OF CASE: Wrongful Death
FACTS: A 19 year old woman was driving through an intersection when she collided with a passenger bus. She was found non-responsive on the scene and died approximately 20 minutes later.
PAIN AND SUFFERING:
- The evidence at the trial established that the decedent made eye contact with the defendant bus operator for approximately one second before the bus struck the decedent’s vehicle.
- According to the testimony at the trial, the decedent was able to feel pain for a maximum of 11 to 20 minutes after the accident. During this time, she was minimally conscious.
- The decedent’s awareness of her circumstances was affirmed by witnesses: civilians, law enforcement, and EMTs.
- The impact of the accident seriously impacted her ability to communicate the pain she was experiencing.
- All witnesses consistently testified that there was no movement of her head, limbs, or body. Two witnesses testified to seeing her eyes move under the eyelids and movement of her lips. One witness testified to hearing a faint moaning and increased movement of the eyes under the eyelids when she spoke the decedent’s name.
- The only positive sign by any emergency responder was a sound that the EMT testified to be “gurgling.”
- The plaintiff’s expert, a primary care osteopath, opined that being that a person who appears to be unconscious can still feel pain, and that the existence in both a heart rate and respirations in the decedent made it apparent that nerve pathways were open, the decedent experienced pain for at most 20 minutes after the accident.
- The plaintiff’s expert also testified that the decedent never responded to painful stimulus from EMTs and was unresponsive at all times.
- The defense expert performed the external post-mortem examination, through which he concluded that the decedent was completely unconscious in and coma from the second that the accident occurred. He said that any movement that the witnesses observed was completely involuntary and does not prove consciousness. According to the doctor’s testimony, the decedent had no awareness of pain or suffering “in the slightest” from the moment of impact until her death.
- The jury awarded $250,000 for pre-impact terror and $1,250,000 for conscious pain and suffering. The Appellate Division reduced to $50,000 for pre-impact terror and $400,000 for conscious pain and suffering.
KEVRA V. VLADAGIN (96 A.D. 3d 805)
REVERSED: June 13, 2012, Appellate Division, Second Department
VENUE: Supreme Westchester
TYPE OF CASE: Wrongful Death
FACTS: Three people were driving when their vehicle flipped onto its side and its roof, then proceeded to strike a tree. The passenger seated in the backseat behind the driver died, the other two survived the crash.
PAIN AND SUFFERING:
- The defendant moved for summary judgement seeking to dismiss the plaintiff’s claim for conscious pain and suffering.
- The decedent did not make any sound or movement and did not appear to be breathing in the hour between the accident and the official time of death.
- There was no evidence that the decedent experienced any pre-impact terror.
- The Appellate Division granted the defense’s summary judgement motion to dismiss damages for conscious pain and suffering, stating that “speculation is insufficient to sustain a cause of action for conscious pain and suffering.”
