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but Judge Karlton felt compelled to dis- miss plaintiff ’s claim for pain and suffer- ing damages because of numerous decisions of Eastern District Judges following Venerable, and the result of the outcome of an issue should not be determined by whichever judge gets assigned to a case. The Southern District has two


unpublished opinions which are diamet- rically opposed. Hirschfield v. San Diego Unified Port Dist. (S.D.Cal. 2009) 2009 WL 3248101 follows Guyton, limiting its ruling to cases in which the death result- ed from the unconstitutional violations, noting that “In cases such as this one, where the decedent died almost immedi- ately following the alleged constitutional conduct, absent damages for pain and suffering or loss of life, the recoverable compensatory damages for the injury inflicted on the decedent would be mini- mal to non-existent.” (Id., at *4.) Hirschfield also notes that the Seventh and Tenth Circuits in accord with Guyton. (Bell v. Milwaukee (7th Cir.1984) 746 F.2d 1205 and Tenth (Berry v. City of Muskogee (10th Cir.1990) 900 F.2d 1489; see also, Jaco v. Bloechle (6th Cir.1984)739 F.2d 239, 241-245.) But six months later, in Cardinal v.


Buchnoff (S.D.Cal. 2010) 2010 WL 1337489, another judge claimed Hirschfield was distinguished because while in Hirschfield the decedent died almost immediately after the constitu- tional violation (he was shot by police), whereas in Cardinal the deterrent goals of section 1983 could be met by an award to his estate for compensatory and poten- tially punitive damages. (A review of the Cardinal docket reveals the claim arose on January 17, 2005, and the plaintiff ’s father was substituted as administrator of his estate on June 26, 2009. Since the complaint was not amended to state any claim for wrongful death, presumably the death was unconnected to the alleged unconstitutional use of excessive force by police).


Solutions The best method of full valuation of


damages in a death case, and the one


that should be adopted by the California Legislature, is to amend the survival statute to include full recovery of a dece- dent’s pre-death pain and suffering. Companies producing products and other tortfeasors must be made to bear the full burden of their conduct. To do otherwise is to give the wrongdoer a wind- fall at the expense of the harmed. Intellectually enticing theories of law and efficiency aside, common notions of jus- tice and equity demand that if any party is to bear the burden of error in calcula- tion it should be the wrongdoer. A strong argument can be made that


existing U.S. Supreme Court precedent supports following the Guyton court’s rul- ing, at least where the death of the dece- dent was the result of the constitutional violation. In Carlson v. Green (1980) 446 U.S. 14, 23-25, the Court held that the vindication of federal constitutional rights in a Bivens action through a survivorship claim “should not depend upon where the violation occurred” (Id., at p. 24), and should be governed by uniform rules, at least where the decedent’s death was caused by the constitutional violation.


The “immediate death” anomaly A plaintiff can recover punitive dam-


ages only if they can state a viable sur- vival action, which requires that the dece- dent suffered personal injury or property damage sufficient to constitute a cause of action prior to his death. (Pease, supra, at p. 460.) Punitive damages cannot be awarded unless actual damages are suf- fered. (Gagnon v. Continental Casualty Co., (1989) 211 Cal.App.3d 1598, 1603, fn. 5.) Some courts have held that an actual award of compensatory damages is not necessary, but that plaintiff need only prove they suffered damages necessary to satisfy the elements of the cause of action. (Id., at 1603, fn. 5; Garcia supra, at 185-186.) But a federal court applying


California law in an aircraft crash case held that the fact the decedent passenger was “... aware of the impending crash and suffered mental and emotional distress, anguish, physical pain and discomfort ...” prior to her death was


JANUARY 2012 The Advocate Magazine — 61


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