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Judge
Finds Three Minutes of Suffering By John Caher How much pain and suffering does it take to rack up $3 million of damages in a wrongful death action? More than six minutes worth, a New York federal judge has found. Northern District Judge David N. Hurd reduced damage awards in an unusual products liability case because the victims did not suffer long enough in an eventually fatal fire to warrant the amount of money awarded by the jury. Judge Hurd cited several New York appellate rulings in concluding that three minutes of anguish, or even six, simply do not add up to $3 million in damages. His decision in Hackert v. First Alert Inc. and BRK Brands Inc., 1:03-cv-216, came in a case where a smoke alarm manufacturer sold a properly functioning, Underwriters Laboratory-approved product (NYLJ, May 8), but did not warn consumers that a better product was available. In April, a jury awarded more than $7 million on behalf of a Schenectady, N.Y.-area father and daughter who perished in a May 31, 2001, blaze. An investigation had revealed that the family's ionization-detection smoke alarm, the most common type, failed to go off even though it functioned properly. At trial, it was alleged by plaintiffs counsel James E. Hacker of Hacker & Murphy in Latham, N.Y., that the manufacturer had lured the victims into a false sense of security by not warning them that while ionization detectors are effective when there is a fast-moving, high-temperature fire, photoelectronic detectors are far better at detecting slow, smoldering fires like the one that claimed the lives of William P. Hackert Jr. and Christine M. Hackert. Hacker produced evidence that dual detection systems, utilizing both ionization and photoelectronic technologies, are available but more expensive and that they yield a lower profit margin for the manufacturer. The jury awarded more than $7 million in damages, including $3.4 million on behalf of Mr. Hackert, who was 56, and about $3.1 million on behalf of his 31-year-old daughter. However, it reduced the award by 35 percent since one of the two smoke detectors had been disabled. On a post-trial motion, the defense took issue with the $3 million pain and suffering awards. James H. Heller and Terry M. Henry of Cozen O'Connor in Philadelphia and Neil A. Goldberg of Goldberg Segally in Buffalo, N.Y., argued that the awards for conscious pain and suffering were well beyond the limits generally established by New York state courts. Under Consorti v. Armstrong World Industries, 103 F.3d 2 (2nd Circuit, 1995), state law determines whether an award was excessive, even in a case handled under a federal court's diversity jurisdiction, as was Hackert. Judge Hurd said the plaintiffs' proof suggested that Mr. Hackert suffered for about three minutes and Ms. Hackert endured about six minutes of pain and suffering before succumbing to fire, smoke and heat. But he said that under New York case law, "reasonable compensation for conscious pain and suffering of short durations is significantly lower than $3 million." For instance, the court noted, in Givens v. Rochester City School District, 294 AD 2d 898 (4th Dept. 2002), a $1 million verdict was slashed to $300,000 when the decedent suffered less than half an hour after being stabbed. Similarly, in Rodd v. Luxfer USA Ltd., 272 AD2d 535 (2nd Dept. 2000), a $1 million verdict was reduced to $300,000 where the victim lived about 30 minutes after sustaining injuries in an explosion. The 1st Department, in Walker v. New York City Transit Authority, 130 AD2d 442 (1987), reduced a $1 million award to $600,000 where the decedent suffered briefly after being struck by a train. And in Torelli v. City of New York, 176 AD2d 119 (1st Dept. 1991), the justices in Manhattan found $250,000 sufficient compensation when the victim suffered for somewhere between 15 minutes and an hour after a car crash. Additionally, the 2nd Department, in Glassman v. City of New York, 225 AD2d 658, cut a $1.4 million award to $500,000 in a case where the decedent was only minimally conscious after being hit by a car. "Even considering the jury's reasonable crediting of the evidence demonstrating conscious pain and suffering, in light of New York case law, the awards of $3 million each for conscious pain and suffering of William and Christine Hackert deviate materially from what would be reasonable compensation," Hurd wrote. The plaintiffs have consented to a remittitur of $1 million for Mr. Hackert's conscious pain and suffering, and $2 million for Ms. Hackert's anguish. After the 35 percent comparative negligence deduction, that yields $650,000 for the father and $1.3 million for the daughter. In addition to Hacker, the plaintiffs were represented by James L. Fetterly and Sally Silk of Robins, Kaplan, Miller & Ciresi of Minneapolis.
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A Feast
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