New York Personal Injury Trials,
Proving Damages in a Wrongful Death Case
New York Law Journal, Tuesday, October 23, 2007
Ben B. Rubinowitz and Evan Torgan
The trial of a wrongful death case presents interesting and
challenging issues. The laws regarding damages for wrongful
death are old-fashioned, out of date and archaic.
At common law, the personal injury case died with the
decedent. Thus, it was always in the best financial interest of
the defendant to injure someone enough to kill him so that he
would not be cast in damages. New York State therefore created
the statutory rule that allowed death cases to proceed, but
exacted its toll by its limiting law of damages. Surviving
family members are not permitted damages for their grief or
loss; widows are not entitled to loss of the marital
relationship. The sole amount of damages is pecuniary or
financial loss and pain and suffering that the decedent felt
prior to death.
Nonetheless, the skilled trial lawyer can try a case that
results in significant damages for those limited elements of
compensation. Due to the special nature of wrongful death cases,
each stage of the proceeding must be planned with great care and
consideration from jury selection through summation.
The Voir Dire
Areas of both liability and damages must be addressed in a
nonargumentative, educational yet probative manner. Begin the
voir dire something like this: 'I represent the family of
Michael Jones. He was killed in an automobile accident on
October 5th, 2003. We have a lawsuit against a driver who we
claim went through a red light. We will be talking to you today
in general terms about this case.'
Q. How do you feel about someone's children vindicating the
loss of their father by bringing a lawsuit?
Q. Do you think there is anything wrong with a wife suing for
the loss of her husband? Do you think there is anything right
about it? What?
In a case involving adult children and no wife bringing the
case, make sure the jury knows that your case is being brought
by adults. Otherwise they may be surprised either in opening or
when your adversary conducts his voir dire, that the true
plaintiffs are not minor children in need of financial support
or the immediate nurturing of a parent.
Q. I want you to know right now that my clients are the adult
children of Michael Jones. They have brought a lawsuit to
vindicate the death of their father. How do you feel about that?
Q. Do you think that these children, although they are grown,
have a right to bring a lawsuit saying that the defendant is
responsible for their father's death? What do you think about
that?
Q. It's their position that the person who was careless and
responsible for the death should be held accountable. Do you
think there is anything wrong with adult children getting
justice for the loss of their father?
It is also important that you deal with the liability issues
in the case as well, and the fact that your clients will not be
able to add anything to your proof on liability.
Q. You know, obviously Mr. Jones is no longer with us, and
can't tell us at trial how the accident happened. As a result, I
have to prove my case through the defendant himself. What do you
think? Is that OK?
You have to talk to the prospective panel about your specific
elements of damages as well.
Q. Do you agree with our system of civil justice that stands
for the proposition that if someone feels pain and suffers
through the fault of another, that they are entitled to be
compensated for that pain and suffering, even if they are no
longer with us?
Q: Do you agree with the civil justice system that we have in
New York that says if someone dies through the negligence of
another, that the estate of the person who dies is entitled to
be compensated for the pain and suffering he felt prior to his
death? Why do you agree with that?
Q. How do you feel about our civil justice system that says
when a child loses a parent through the negligence of another,
that the child is entitled to be compensated for their 'loss of
parental guidance'? Why do you feel that way?
Q. Do you agree that a person's children are entitled to
pecuniary or financial loss from the loss of a parent, if it is
caused by the negligence or carelessness of another party?
The last two questions are crucial when the survivors are
adult children, particularly with regard to the claim for loss
of parental care and guidance. This element of damages gives you
the most latitude to offer proof regarding the type of person
and parent that the decedent was, and thus represents an
important part of your case. Jurors, however, may be surprised
that adult children are entitled to such an award and are often
resistant to the concept. Thus, identification of such juror
attitudes is a crucial part of your jury selection.
Loss of Services and Parental Guidance
Obviously, when the decedent was a substantial wage-earner in
the prime of his career, proving economic damages is a
straightforward matter. Issues to keep in mind in projecting
these economic damages include the decedent's opportunity for
promotions and advancement in his field, as well as the fringe
benefits, such as health insurance and pension plan
opportunities, that the decedent may have received from his
employer. To that end, a witness with knowledge of the excellent
work habits, talents and abilities possessed by the decedent may
go a long way towards justifying a large pecuniary loss
projection by your economist.
Of note, defendants are entitled to argue that the decedent
would have, himself, consumed a portion of his lost earnings,
and that the award must be diminished by that amount. With
regard to income tax, our law contains a strange quirk:
defendants in a personal injury action may seek such an offset
in a post-trial hearing, but medical malpractice actions require
that such proof be offered through expert testimony during the
trial itself or such an argument is waived.
In the case of a spouse who works inside the home or a parent
with a minimal earning history, the trial lawyer can still get a
substantial award. First, lay the foundation for all the work
the stay-at-home spouse did prior to her death: laundry,
cleaning, landscaping, garbage removal, painting, window-washing
and things of that nature. Then have an economist quantify what
it would cost to project those services after providing him with
the proper foundation through factual hypothetical questions:
Q. Professor Smith, how does an economist quantify the value
of losing a wife who works within the home?
A. What we do is determine the replacement cost of finding
other individuals to do the same type of work.
Q. Can you give us an example of what you mean by that?
A. Sure. We can take, for example, what it would cost to have
a live-in housekeeper to replace what Mr. Jones' wife did for
him around the house, add a growth rate to it, and project that
for her life-expectancy.
Q. Professor, I'm going to ask you now to assume the
following set of facts as true that were testified to in this
court. I want you to assume that Mrs. Jones did all the
housework for Mr. Jones. She cleaned the entire four bedroom
house on a daily basis. She vacuumed, washed the floors, did the
laundry, cooked two meals per day and did all the grocery
shopping. Do you have an opinion to a reasonable degree of
economic certainty as to what the replacement cost of Mrs.
Jones' household services would be?
The same can be done for the loss of parental services claim
as well. For example, if the parent tutored the child each
night, drove her to school each day, counseled her with respect
to her relationships, coached her golf lessons, and taught her
bible studies at night, the trial lawyer can have the economist
quantify that as well. Once you incorporate those sworn facts
into a hypothetical question for your economist, you can have
him project the costs of a daily tutor, a separate chauffeur, a
social worker and golf instructor. Obviously, this could come to
a substantial sum of money over the course of a child's
minority.
However, with respect to loss of parental guidance claims, it
is far better to have emotional testimony about the type of
parent the decedent was, leaving it to the jury to do the
quantifying on the verdict sheet. And certainly do not limit the
parental guidance to just 21 years of age, because, after all,
when does someone stop needing their mother?
Conscious Pain and Suffering
You must prove conscious pain and suffering -- an actual
awareness of pain. It is not enough to merely show that the
person lived for a period of time from accident until death.
Those witnesses who may have seen the physical injuries prior to
death, or heard screams or moans must be called to the stand.
Emergency service workers may have seen or heard something that
could be interpreted as proof of conscious pain and suffering.
Importantly, proof of fear of imminent death is permitted, and
can be inferred by the actions undertaken by the decedent, such
as skid marks left by the vehicle he was driving, proving that
he was aware of the impending disaster and tried to avoid it.
Even in seemingly comatose patients, a
careful review of the
hospital record may reveal conscious pain. The nurses' notes are
the best place to look because they are with the patient much
more than the physicians and will record such things as whether
the patient obeys commands or responds on any level to noxious
stimuli. Once you have some favorable signs of consciousness,
have your expert give an opinion as to their meaning.
In a case where a person is dead on arrival or dead at the
scene with no eyewitnesses whatsoever, an autopsy report can
form the basis of a determination of pain and suffering.
However, you still need expert testimony on the issue.
Summation
The summation presents some interesting issues, paramount of
which is explaining to the jury why your clients are entitled to
a substantial verdict for pain and suffering of short duration.
The first thing to discuss is why the jury should bother
awarding money for pain and suffering to the estate, if the
decedent is no longer alive to collect it. This can be addressed
with the following argument:
You may ask yourselves, why should we give Michael's estate
money for his pain and suffering when he won't be around to reap
its benefits. That's a good question. But let's look at it this
way. Let's say that someone owed Mike a million dollars based
upon a prior debt. The fact that he died would not expunge that
debt. His beneficiaries or his estate would still be entitled to
that million dollars. At a minimum, the estate would demand
payment of that million dollars owed to Mike, and if that debtor
didn't pay, the estate would certainly hire an attorney to
enforce that claim. Well, when the defendant made a left turn in
front of Mike's car, killing him, and causing his tragic death
and horrible suffering, they created a debt. A debt that is due
and owing today. A debt that must be repaid. Certainly, if Mike
were alive and brought a case for his pain and suffering you
would make an award for it. But Mike's not alive. He died
through the defendant's negligence, a defendant who shouldn't be
rewarded for injuring him so severely that it caused his death.
That would actually reward the defendant for killing him, rather
than merely injuring him. Well, the debt was created on the day
of the accident and it is due and payable today.
Another issue the trial lawyer must deal with on summation is
compelling the jury to give a large award for a short duration
of pain and suffering. Just deal with the issue logically and
expand on your original argument. And do not forget about
distinguishing the pain from the suffering:
Now, if the defendant made a left turn in front of Michael
and permanently injured him, he would be entitled to
compensation for pain and suffering for the rest of his life,
the next 20 years. Should they get a benefit from injuring
someone so badly that he dies? So he lived in pain for two
minutes rather than 30 years. But let's look at that 2 minutes.
The seared flesh from the fire enveloping his car; the bloody
mouth from his 10 broken teeth. The bone coming through the
muscle and skin of his leg after shattering into pieces. In the
instant of that accident caused by the defendant's negligence,
his life expectancy dropped from 20 more years to two more
minutes. And for each and every instant of the remainder of his
life expectancy, he felt agonizing, excruciating pain. Imagine
pain for each remaining second of someone's life.
So there is no question that Mike was in
severe pain. But now
I am going to talk to you about his suffering as distinguished
from the pain of gasping for his last breath. You know from the
medical experts that he actually knew he was going to die.
Imagine the fear he felt because of his impending death. And
there he was, surrounded by strangers, knowing he would die,
knowing he would never see his children again, knowing that he
would never feel the warmth of his wife. There he lay, not
knowing if his little ones would be able to afford college. Not
knowing if they would be able to continue living in the family
home. Not knowing if there would ever be another positive male
influence in their lives. His last two minutes on earth were
spent worrying how his children would ever survive the loss of
their father.
Common Themes
All wrongful death trials have common themes: The
unavailability of the plaintiff to add to the case; the dearth
of witnesses to the plaintiff's last moments; and the finite
amount of time the plaintiff survived for which you can prove
conscious pain and suffering. However, with the proper jury
selection techniques, the appropriate medical experts, and a
thoughtful, common sense approach to summation, a trial lawyer
can successfully obtain monetary compensation for the loss
suffered by the decedent's family.
Ben B.
Rubinowitz, a partner at
Gair, Gair,
Conason, Steigman & Mackauf, is an adjunct professor at Hofstra
University School of Law and Benjamin N. Cardozo School of Law. Evan Torgan, a member of Torgan & Cooper, is an
adjunct professor at Cardozo School of Law.
Richard Steigman, a
partner at Gair Gair Conason, assisted in the preparation of
this article.
10/23/2007 NYLJ 3, (col. 1)
