suffering.12
Indeed, because it is for the
jury to decide whether your client suf- fered conscious pain and suffering, and for the jury to determine whether the client exhibited the requisite level of consciousness, and because this requires specialized knowledge, this writer would
rule that someone in a coma felt no pain. Thus, you need to be armed with the case law and common law to support your claims. Below is case law from various jurisdictions that may help you. There are many stages of awareness or consciousness for which courts have
Even in a state with an artificial cap prohibiting awards that fully compensate victims for their damages, proving pain and suffering is important.
argue that it is reversible error not to allow you to use a qualified expert. Getting Your Pain And Suffering
Claim To The Jury. The defense may try to strike your expert witness claiming that conscious pain and suffering is not a subject to be determined by an expert. The defense may also argue that “com- mon sense” requires the trial judge to
12
See Tri-State Poultry Coop., supra n.8, (al- lowing expert medical testimony that the victim was conscious and suffered pain before his death, which was refuted by a second expert, creating a genuine issue of fact).
allowed the recovery of damages for pain and suffering.13
have allowed extensive evidence on the issue, and have determined that even persons only minimally aware of their surroundings were entitled to pain and suffering damages.15
Conclusion Even in a state with an artificial cap
It is for the jury to decide
among conflicting evidence whether the plaintiff experienced conscious pain and suffering.14 Trial courts throughout the country
13
See Stein on Personal Injury Damages § 8:6, Necessity of consciousness or aware- ness.
14
See, e.g., Tri-State Poultry Coop., supra n.8; Malory, supra n.4; Greenstein v. Meister, 368 A.2d 451, 461 (Md. 1977); Williams v. Se. Pa. Transp. Auth., 741 A.2d 848 (Pa. Commw. Ct. 1999); Estate of Long v. Broadlawns Med. Ctr., 656 N.W.2d 71 (Iowa 2002).
prohibiting awards that fully compen- sate victims for their damages, proving pain and suffering is important. You should not assume that because your client was immediately rendered into an alternate state of consciousness by the defendant’s negligence that the defendant is off the hook for those non- economic damages he/she caused. Case law, the jury instructions, the medical records and the appropriate use of an expert witness can greatly enhance the value of your client’s pain and suffering claim. n
About the Author Scott M. Perry is a plaintiff ’s medical
The MAJ Office Has Moved
Address: 6240 Old Dobbin Lane, Suite 100
Columbia, MD 21045 A
Telephone: (410) 872-0990 Facsimile: (410) 872-0993
24 Trial Reporter 15
See, e.g., Banks v. Sunrise Hosp., 102 P.3d 52 (Nev. 2004); Bourgeois v Puerto Rican Ma- rine Mgmt., Inc., 589 So. 2d 1226 (La. App. 1991); Maracle v. Curcio, 806 N.Y.S.2d 839 (App. Div. 2005), leave to appeal denied, 7 N.Y.S.3d 703, (2006); Oberson v. U.S., 311 F. Supp. 2d 917 (D. Mont. 2004); Cepeda v. N.Y. City Health and Hosps. Corp., 756 N.Y.S.2d 189 (App. Div. 2003).
Winter 2009
malpractice and catastrophic-injury lawyer with Bruce J. Klores & Associates, P.C. (
www.klores.com) in Washington, D.C. Since 2008, Mr. Perry has been recognized as a Washington, DC Top Lawyer by Super Lawyers, and also is a member of the Board of Governors of the Washington, D.C. Trial Lawyers Association. Mr. Perry also focuses his practice on catastrophic sports-injury cases, and is proud to have brought about national safety changes in sports, such as rowing. He is a cum laude gradu- ate of Catholic University Law School and a former law clerk to Judge Henry F. Greene of the D.C. Superior Court. Mr. Perry can be contacted at (202) 628-8100 or via e-mail at
smp@klores.com
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