Often times in an action for wrongful death, there are disputes as to whether damages can be awarded for conscious pain and suffering.  Significantly, the burden of establishing conscious pain and suffering can be satisfied by direct or circumstantial evidence.  No matter what evidence is used to prove or disprove an individual’s conscious pain and suffering, courts will most often defer to the determination of the jury.

In Vargas v. Advanced Fleet Maintenance, Inc., the decedent lost his life in a work-related accident when he was pinned and crushed between the rear of a garbage truck and a dumpster in an alleyway.  The decedent’s surviving family members sued various parties for wrongful death, and conscious pain and suffering.  After three of the four defendants settled with the plaintiffs mid-trial, the jury rendered a verdict that the last remaining defendant, the company that performed maintenance work on the garbage truck, was 49.5% liable for the decedent’s death.  As part of the damages, the jury awarded the plaintiffs $2,000,000 for conscious pain and suffering from the moment of the physical injury to the moment of death.

The defendant argued that plaintiff could not have experienced conscious pain and suffering based on the severity of the impact, and it moved to set aside and vacate this award entirely.  An expert for the defendant testified that the decedent could not have experienced conscious pain and suffering. The jury heard testimony from the plaintiff’s expert physician that the decedent was conscious for a period of time before succumbing to death.  Plaintiff’s expert testified that the decedent’s injuries would not have killed him instantly and his immediate injuries would not have rendered him unconscious.  Additionally, the individual who was working with the decedent at the time of the accident (the truck driver) testified that before EMS arrived, he held the decedent in his arms, spoke to him and observed his eyes looking at him and his arms moving.

The Court opined that the jury’s determination regarding conscious pain and suffering was not based upon speculation, but rather based on expert testimony, and that of the truck driver.  The Court stated that despite the jury having heard conflicting expert testimony, “the jury’s resolution of conflicting expert testimony is entitled to great weight, as it is the jury that had the opportunity to observe and hear the experts.”  In other words, when presented with conflicting expert testimony, jury members are “entitled to accept one expert’s opinion, and reject that of another expert.”

When defending a wrongful death action where conscious pain and suffering is claimed, it is likely going to be the jury that will sort out conflicting evidence, and make the final determination as to the decedent’s consciousness.

Thanks to Jeremy Seeman for his contribution to this post.