Freed v. D.R.D.
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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2258 September Term 2007 ______________________________________ THO MA S FRE ED, et al., V. D.R.D. POOL SERVICE, INC. ______________________________________ Krauser, C. J. Salmon, Karwacki, Robert, L. (Retired, Specially Assigned) JJ. ______________________________________ Opinion by Salmon, J. ______________________________________ Filed: July 6, 2009 On June 2 2, 2006 , Conn or Free d ( Co nnor ) , who was five, was taken by Paul Carroll, an adult family friend, to the sw imming p ool at the C rofton C ountry Club , in Crofton, Marylan d. At approximately 4:30 that afternoo n, Connor drow ned in the Coun try Club s swimm ing pool. The pool was managed at the time of the drowning by D.R.D. Pool Service, Inc. ( the pool company ), appellee. Less than one month after his death, Connor s parents, Thomas Freed and Deborah Neagle-We bber, as the personal representatives of their son s es tate, filed a surv ivorship action in the Circuit Court for Anne Arundel County. Their complaint named, inter alia , the pool company as a defendant and asserted that Connor s death was caused by the negligence of the pool company. In the same law suit, Conno r s parents also brought a wrongf ul death action against the pool company, in which they each sought recompense for their grief, menta l anguis h, etc. tha t they exp erience d as a re sult of th e drow ning. Prior to trial, the pool company filed a motion for summary judgmen t in which it argued that the estate of Connor Freed was precluded from recovering damages based on the claim that Conn or had ex perienced consciou s pain and suffering prior to his death. According to the movant, that claim w as barred because the estate could not produce eviden ce that w ould su pport su ch a cla im. The pool company s motion was supported by deposition excerpts from various witnesses who had testified during the discovery phase of the case. The parents filed an opposition, supported by a copy of the autopsy repo rt prepared b y the Anne A rundel Co unty Medical Examin er along w ith additional d eposition excerpts. The issu e was tho roughly briefed by all parties and , after a hearin g in the circu it court, summary judgment was granted in favor of the pool company. This ruling removed from the case the issue of whether Connor had suffered conscious pain and suffering prior to his death. The jury returned a $4,006,442.00 v erdict in favor of the paren ts in their wrongful death suit. Pursuant to a statutory cap imposed in Maryland on non-e conomic damages, the wron gful death award w as reduced to $1,002 ,500.00 . See Md. C ode An n. (2008 R epl. Vol.), Cts. & Jud. Proc. A rticle, section 11-108 (hereinafter the C ap Statute ). Connor s parents filed a timely motion to alter or amend the judgment in which they challenged the constitutionality of the Cap Statute. The parents motion was den ied and this timely appeal followed. On appeal, the parents, as they did below, argue that Maryland s Cap on noneconom ic damages violates the equal protection guarantee under the United States Constitution and the Maryland Declaration of Rights. The Court of Appeals has twice rejected this exact argum ent. See O aks v. C onnor s, 339 M d. 24, 37 (19 95); Murphy v. Edmonds, 325 Md. 34 2, 370, 374-75 (19 92). As appe llants recognize, this Court has no discretion but to foll ow the law as e nuncia ted by the Court o f App eals. See Runnels v. Newell, 179 Md. App . 168, 203 (2008) aff d, in p art rev d in part o n other groun ds. 407 Md. 578 (2009). In appellants words, the issue concerning the constitutionality of the statutory cap on non-e conomic damage s is raised in this Court simply to preserve it in the event the Court of Appeals reviews this case. Based on Oaks and Murp hy, both supra, we shall reject appellants a rgumen t that the Cap Statute is unc onstitutional. 2 The main issue presented in this appeal is whether the motions judge erred when she granted summary judgment in favor of the pool company as to the Estate s claim for recompense for Connor s conscious pain and s uffering th at immed iately preceded his death by drowning. W e shall hold that the court did err and remand the case to the Circuit Cou rt for Anne A rundel Co unty for a new trial to determin e what da mages, if a ny, the Estate is entitled to recover for Connor s conscious pain and suffering. I. Sometime between 4:15 and 4:30 p.m. Connor approached Paul Carroll, the adult who had brought h im to the po ol. He aske d Mr. C arroll to remo ve his life jacket so that he could go to the bathroom. Mr. Car roll did so an d told the ch ild to come back when he was done. Mr. Carroll saw Connor go into the restroo m area an d then turne d his attention to Brice and Peyton Dameron, two children who were about Connor s age and who were then playing in the pool. These children ha d also been brought to the pool by M r. Carroll. Af ter a coup le of minutes, Mr. Carroll began to wonder about Connor s whereabouts. He was concerned because he thought that it was taking the child a little bit longer than usual to go to the bathro om. After a couple of [more] minutes, Mr. Carroll asked Brice Dameron to go to the restroom to check o n Conn or. Acco rding to M r. Carroll, there w ere thirty to forty people in the pool at that time, mostly kids. Mr. Carroll continued to watch Peyton who was jumping in and out of the pool. After an interlude, Peyton told Mr. Carroll that there was somebody floating in th e pool. Mr. Car roll and ano ther adult w alked to the side of the pool and saw Connor, face down, with his arms hanging by his side. In Mr. Carroll s words, Connor was in th e dea d ma n s f loat posi tion. Em erge ncy help w as im med iately summoned and lifesaving measures were commenced. But from the time his bod y was discov ered, until he wa s prono unced dead, C onnor never r egaine d cons ciousn ess. In pretrial discovery, no eyewitnesses were found who saw Connor enter the pool after he left the bathroom. And no witnesses came forward who saw him struggle in the pool prior to his death. An autopsy report showed that Connor died of drowning. The medical examiner found no evidence of significant recent injury. A small (1/4 x 1/8) inch abrasion was found o n the child s lo wer back . The man ner of dea th was ac cidental. II. In preparation for trial, Connor s parents hired Dr. Jerome H. Modell to review the case and render an expert opinion as to whether Connor experienced conscious pain and suffering immediately prior to his death. D r. Mode ll is a Florida ph ysician specializin g in anesthesiology and intensive-care medicine. In 1971, he was the author of a book titled The Pathophysiology and Treatment of drow ning an d near- drow ning. More recently, in 20022003, he was a consultant to the World Congress on dro wning . He has treated more than 100 near-d rown ing victi ms in h is clinica l practice . During his deposition testimony, Dr. Modell said that he based his opinion concerning Connor s conscious pain and suffering, in part, on his personal experience as a doctor and on animal experimen ts. He also relied on a report that was prepared by a group of international experts w ho participa ted in the 2002 W orld Congress on drowning. Th e report by these experts was published in the Journal of Circula tion in the United States and the Journal of Resuscitation in Europe. In his deposition, Dr. M odell explained the term pathophysiology of drowning as follows: The pathophysiology of drowning begins when the mouth and nose first become submerg ed in the w ater. At that po int in time, the first reaction is to voluntarily breath hold to avoid aspirating water. The carbon dioxide tension then builds up to a point where you can no longer voluntarily avoid the sensation to breathe. At that point in time you start to take a breath and when you get water in the oral pharynx, that water stimulates the larynx to go into laryngospasm to further protect the airway from aspiration of water. An d as a result you try to breathe but you can t because you are totally obstructed. It s as though someone were suffocating you or you put a clamp on your trachea. As a result, you will build a tremendous negative pressure within your chest as your diaphragm tries to pull in air, which you can t, or water. And as a result the intercostal muscles will sink into the chest ra ther than rise. This causes a great dea l of pain and d iscomfor t of pain an d sufferin g and this process lasts for a minute and a half to two minutes. At a minute a nd a half to two minutes, you no longer can sustain laryngospasm because o f the level of cere bral hypoxia a nd your larynx w ill then relax and you will then start to actively inhale w ater. *** (Emp hasis ad ded.) Dr. Modell testified, to a reasonable degree of medical probability, that Connor experienced pain for about 2 minutes during the drowning process. His exact testimony in this regard was as follows: As far as his consciousness is considered, he would have been conscious for approximately 2 minutes before he would lose consciousness. Secondary to cerebral hypoxia. And that would correspo nd not only to what s been reported in th e literature, but a lso studies we ve done in experimental animals where we actually measured arterial oxygen tension with varying time periods simulating laryngospasm and drowning. Dr. Mo dell also relied o n an article by a Dr. Lowso n, who h ad been s hipwrec ked in the early 1900 s and had almost drowned. In an article written by Dr. Lowson and published in 1903, the doctor vividly described what happened to him physically during the time he was submerged. Dr. Modell adm itted at his deposition that not all drownin gs are alike, because there are medical conditions that can cause a person to be unconscious before he or she takes in water. For instance, a person in a pool could be knocked unconscious by a blow or the person could intentionally hyperventilate, causing a blackout. Dr. Modell ruled out those possibilities because he thought it highly unlikely that a 5-year-old would intentionally hyperventilate to the extent necessary to cause a blackout, and there was no evidence in the autopsy report that he received a blow that would have rendered him unconscious. The pool company retained Dr. H. Bran dis Marsh , a clinical cardio logist, as an ex pert. He has an additional interest in what he termed interventional cardiology, meaning that he performs cardiac cath eterizations, an gioplasties, an d supervise s exercise tes ts used to diagno se hear t proble ms. Dr. Marsh admitted at deposition, based on his review of the autopsy report and other records concerning Connor s drowning, that there was no evidence that Connor had any type of injury which would have rendered him unconscious prior to entering the pool. He conceded that there was no evidence that Connor suffered from some type of underlying etiology that predisposed him to unconsciousness. He also said that it was more likely than not that [Connor] was conscious when he began to drow n. Nevertheless, Dr. Marsh testified that it would be speculative to assume that Connor experienced conscious pain and suffering prior to his death. The basis fo r his too speculative opinion was that there s no data to support that claim. He was then asked whether common sense dictates, . . . that when a person is deprived of air, there is a period of pain. He responded that common sense dictates that someone in [that] situation will flail around and draw attention to themselves and yet that do esn t happ en either, so I a m not sure what the role of common sense is especially when you re talking about medical issues. His answer continued: The only data that I ve seen anyw here here w ith respect to p atients experiencing consciou s pain and suffering when drowning is the report of this doctor who drowned in 1900 [sic] and Dr. Modell s statement that some of the patients he s talked to who he has taken c are of in his career reported similar things. We don t know how many he s talked to, much less what percentage of them said what, when and under what circumstance. To the best of my knowledge, none of that is published in the peer reviewed literature and at that point it s anybody s guess. Nevertheless, Dr. Marsh testified that he did not disagree with the p ortion of Dr. Modell s deposition testimony in which he described the pathophysiology of drowning. III. In her oral opinion, granting summary judgment in favor of the pool company and against the personal representatives of the estate of Connor Freed, the court said: I believe that from what the parties have said that there was no material fact in dispute and I believe that there . . . [is no] dispute that the child was conscious for some period of time and I do not think that there is . . . any testim ony, clearly no eye witness to say when that consciousness became an unconsciousness. . . . I understand that [plaintiffs counsel believes] that [he] can distinguish [UMMS v.] Malory [143 Md. App. 327 (2001)] and I believe that Malory requires that there be some objective measure before there is an ability to take to the jury the conscious pain and suf fering [issue]. IV. We have found no Maryland case dealing with the issue of whether the personal representative of a drowning victim can recover for the victim s conscious pain and suffering when, as here, there is no eyewitness testimony concerning the drowning. There are, however, cases from our sister states a s well as fede ral decis ions co ncernin g this issu e. See John P. Ludington, Anno tation, When is Death Instantaneous for Purposes of Wrongful Death or Survival Action, 75 A.L.R . 4th 151 , § 8 (1989). But before analyzing cases from other jurisdictions, it is use ful to review some w ell established principles set f orth in Maryland cases dealing with the issue of what must be proven in order to be awarded recompense for the conscious pain and suffering of a decedent. That exact issue was addressed about sixty years ago in the case of Tri-Sta te Pou ltry Co op. v. C arey, 190 Md. 116, 125 (1 948). In the Tri-State Poultry case, the decedent, a bicyclist named Orrick Carey, was struck by a bus and suffered an injury to the base of his skull. Id. at 118. Immediately after the accident, Car ey was bleed ing. Id. Carey was prom ptly transported to the home of a Dr. Whaley, who liv ed nea rby. Id. at 118-19. When Dr. Whaley first saw Carey, the latter moaned and gro aned, a nd Dr . Whal ey admin istered m orphin e. Id. at 119. Carey died about forty-five minute s after D r. Wha ley first exa mined him. Id. Dr. Whaley was asked at trial if Carey was conscious to such a degree that he was suffering pain? Dr. Whaley answered: I would sa y yes. I don t think h e was totally conscious. He did not answer his name. But I do think he was conscious enough to elicit pain. He also said that he adminis tered morphine for pain and to prevent shock. Id. at 119. On cross-examination, Dr. Whaley admitted that the fact that a man is groaning does not necess arily mean he is co nsciou s. Id. at 120. He was asked: you don t mean to tell the Jury definitely and p ositively that M r. Carey was consciou s at the time you saw him, do you? Dr. W haley replied I felt that in the process of helping Mr. Carey up he gave out more groans and so forth, I thought probably he was conscious to more pain. That was my reason for saying he was conscious of some pain. Id. Another doctor testifie d that he examine d Care y at the ho spital. Id. at 126. That doctor opined that Carey did not suffer consciou s pain from the time of h is injury until his death. Id. Unde r such c ircums tances, th e Cou rt of A ppeals said, id.: This case is a narrow one, but viewing the facts in the ligh t most favo rable to the plaintiff, we cannot say that the lower court was wrong in submitting the case to the jury. . . . on the question of whether or not the deceased suffered consci ous pa in. Prior to reaching the holding we have just quoted, the Court of Appeals reviewed authorities from numerous jurisdictions concerning the sufficiency of conscious pain and suffering evidence. The Court then said: From these authorities we think, in order to recover in a case like this, three elements m ust concu r: 1. that the defendant s negligence was the direct and proximate cause of the accident; 2. that the deceased lived after the accident; and 3. that between the time of the accident and the time of death he suffered conscious pain. If these elements are establishe d the plaintiff is entitled to recover. The period between the acciden t and death may be short, yet, if the evidence shows that the decedent lived after the accident, was conscious and suffered pain, his representative is entitled to recover in an action like the one in this case. The burden of proof is upon the plaintiff to show by a preponderance of evidence the elements necessary to establish the action. Id. at 125 (emphasis ad ded). Since Tri-State Poultry was d ecided , the afo remen tioned te st has no t chang ed. See Beynon v. Montg omery C ablevision L td. P ship, 351 Md. 460, 508-09 (19 98); Univ. of Md. Medical Sys. v. Malory, 144 M d. App . 327, 34 6 (200 1). The Beynon case dealt with the issue of whether pre-impact fright or any other form of mental or emotional disturbance or distress suffered by an acciden t victim, who instantly dies upon impact, was legally compensable. Id. at 463. The Beynon Court held that the estate of a decedent could recover such damages because, in the even t the deceas ed had live d, he wo uld have b een ab le to reco ver them . Id. at 500. In the cou rse o f its o pinion, th e Co urt sa id that [ d]ire ct ev iden ce is not n eces sary. What is required is e vidence f rom wh ich a reason able inferen ce could b e drawn that the decedent experienced fear or fright. Id. at 508. The teaching of the Beynon case, as applied to this case, is that Connor s paren ts were not required to produce eyewitnesses or other direct evidence that their son suffered conscious pain and suffering prior to his death. Instead, in order to survive a motion for summary judgment, the personal re presentative s of Con nor s estate were required to produce evidence from which a r easonab le inference could be drawn that the decedent experienced fear or f right or c onscio us pain while h e was in the pro cess of drow ning. The evidence, which we deem sufficient, sh owing c onscious p ain and su ffering in this case was th e follow ing: 1) C onnor , a health y five-year- old, entered the poo l without ad ult supervision and without a life preserv er; 2) he received no b low to the h ead prior to drowning, nor did he have any ph ysical problem that would have rend ered him unconscious prior to going under water; 3) as the pool compan y s own exp ert admitted, it w as more like ly than not that when C onnor started to drown he was conscious; and 4) once his head was under water he experienced the usual pain and suffering associated with drowning, as describ ed by D r. Mod ell whe n he ex plained the path ophysiol ogy of d rown ing. As men tioned previousl y, the motions judge in this case granted summary judgment because she did not think that the Malory case was distinguishable from the one sub judice. Jamal Malory, age two, arrived at the Emergency Room of the University of Maryland Hospital in Baltimore at noon on Marc h 15, 1996. 143 Md. App. at 334. The child was experiencing respiratory problems. Id. at 332. He was released from the hospital at 4:05 p.m. that sam e day. Id. at 334. At home on the evening of his discharge, J amal s hea lth improved and he w as able to go about his usual activities. He was given a bath, Vapor rub was applied to his ch est and nose, and he w ent to sle ep in his mothe r s bed. Id. at 335. During the night, the child woke up frequently, coughing and crying. Id. The next morning, at 10:30 a.m., Jamal s mother awoke to find her son lying in be d unres ponsiv e. Id. at 335. Although cardiopulmonary resuscitation ( CPR ) was administered, Jamal never regained consciousness, never mo ved or op ened his eyes, and was o therwi se non -respon sive. Id. at 335. A t 11:25 a.m. on the mo rning o f Ma rch 16, J amal w as pron ounce d dead . Id. In Malory, the plaintiffs contended tha t the defendant s hospital w as guilty of medical malpractice by not ke eping J amal o vernig ht for m onitorin g. Id. at 332. O ne of the issues presented in the Malory case was whether the trial judge committed reversible erro r in allowing the jury to consider the claim of Jamal s estate for the decedent s consciou s pain and suffer ing. Id. at 333. We held that the court erred in allowing the jury to consider that issue. Judge Arrie Davis, speaking for this Court, said: By the accou nts of all witn esses at trial, Jamal was unconscious from 10:30 a.m. on March 16, 1996, until 11:25 a.m. that same morning, when he was pronounced dead. [Jamal s mother,] who first found Jamal, testified that he was unconscious when she awoke that morning; Janet, who performed CPR on her grandson, testified that he stayed unconscious despite her efforts; the paramedics and firemen, who answered appellees 911" call, testified that he was unconsc ious at all times while they were present; and the hea lth care providers at appellant s facility all maintained that Jamal was unconscious upon arrival at the ER. Appellees contend that the testimony of [Doctor] King and [Doctor ] Carroll satisfie s the eviden tiary requiremen ts set forth in Ory; however, this testimony is mere speculation and Maryland has long followed the general principle that, if compen satory damages are to be recovered, they must be proved with reasonable certainty, and may not be based on speculation or conjecture. Beynon, 351 Md. at 513, 718 A.2d 1161 (W ilner, J., dissenting). It was, therefore, reversible error for the trial court to allow the issue of d amages f or co nscious p ain a nd su ffer ing to go to the jury. Id. at 384. This case is distinguishable from Malory because in that case the decedent was unconscious at all relev ant time s. The same w as not true for Conn or. The exp erts for both sides were in agreement that Connor did no t have any pre -existing con dition or pre-d eath injury that wou ld have rendered him unconscious prior to the time that he began to drown. The medical experts for both the plaintiffs and the defendant also agreed that it was prob able that Connor was conscious when he first entered the swimming pool. Wh en, as here, a w ell qualified expert for the moving party admits that the victim was conscious when he began to drown and also admits that the pathophysiology of drowning was as described in the deposition testim ony of an oppo sing expe rt, we fail to se e how th e evidenc e that the child experienced at least some pain can b e characterized as too spec ulative. In reaching th is conclusion, we are mindful of the fact that in any case where we are called upon to consider whether the motions judge should have entered summary judgment, we are required to construe the factual record in the light most favorable to the non-movants. Newell, supra, 407 Md. a t 607. Moreo ver, in such cases, it is not our job to resolve factual disputes; instead, we endeavor to merely determine whether they exist and are sufficiently material to be tried. Id. (quoting Sadler v. Dim ension s Hea lthcare Corp ., 378 M d. 509, 5 34 (20 03)). The personal representatives of C onnor s estate take the straight-forw ard position in this appeal that it was for the jury to decide whether, and to what extent, Connor suffered conscious pain and suffering. In response, rather than addressing that issue head on, appellee address the issue obliquely by arguing that the lower court was correct in excluding the testimony of appellants expert, Dr. Jerome Modell, and therefore denying the claim in the survivorsh ip action for conscious pain and suffering. The sho rt answer to that contention is that the motions judge at no time indicated that she was excluding from her consideration the testimon y of Dr. M odell. 1 We now turn to the basis upon w hich the motions judg e did grant summ ary judgmen t. As mentioned earlier, the circuit court said in its oral opinion granting summary judgment in favor of the pool company that [UMMS v.] Malory requires that there be some objective measure before there is an ability to take to the jury the conscious pain and suffering. The motions judge also emphasized that although there was no dispute that Connor was conscious for some period of time, there was no testimony, clearly no eyewitness testimony to say when the consciousness became . . . unconsciousness. We interpret the 1 Usually, we will not affirm the grant of summ ary judgment on any ground not relied upon by the mo tions jud ge. See Jo hnson v. Mac Intyre, 356 M d. 471, 480 (1999). Th ere is an excep tion, howe ver, to that rule. T he excep tion, which is not here applicable, is that an appellate court will affirm the grant of a summary judgment, on grounds not relied upon by the motions ju dge, if the latter h ad no disc retion but to grant su mmar y judgm ent. See Stanley v. Stanley, 175 Md. A pp. 246, 266 (200 7). court s objective measure language, when read in conjunction with the motions court s observation that there was no eyewitness testimony as to how long the decedent was conscious, as imposing a requirement that the plaintiff present direct evidence concerning how long the victim consciously suffered pain. But as already mentioned, direct evidence was not nec essary; circ umstan tial evide nce is en tirely suff icient. Beynon, supra, 351 Md. at 508. Moreover, the exact length of time fright or pain was experienced need not be shown. Tri-Sta te Pou ltry, supr a, 190 Md. at 125. In support of the trial judge s ruling, the pool company focuses upon the expe rt testimony of Dr. Modell and attempts to denigrate it. Appellee argues: Dr. Modell based his opinion entirely on an article publishe d by a shipwrecked doctor in 1902 [sic] and conv ersations he had with s everal of h is former patients who had experienced near drowning episodes. The opinion itself was non-specific to Connor Freed but was Dr. Modell s generic recital of the drowning process. As Dr. Modell himself put it, I can t specifically tell you exactly how many seconds it takes anybody to drown. I can tell you within reasonable medical probability what the time course of the drowning proces s is. (Emp hasis om itted.) Dr. Modell testified that during his career as an anesthesiologist he had the opportun ity of treating well over 100 drowning victims, w ho had b een succe ssfully resuscitated. Those patients were treated in an intensive care environment where he obtained histories of his patients, including those of children, who had related experiences not different from that related b y Dr. Lowson. He also relied on animal experiments and, as already mentioned, Dr. Mo dell testified, to a re asonable degree of medical certainty, that Connor underwent the drowning process as described by a group of international e xperts who presented a paper to the Wo rld Congress on drowning in 2002 and published it in the Journal of Circula tion in the U nited States. A p hysician with Dr. Modell s specialty and experience was certain ly qualified to testify as to the physical effect that ingestion of water would have on the lungs, heart and brain of a healthy five-year-old. It is true, as appellee points out, that Dr. Modell was unable to state, specifically, how many seconds it takes a particular person to drown. But Dr. Modell was able to testify to a reasonab le degree of medical probability, that Connor would have been conscious for approxim ately two minutes be fore he lost consciousness. Such testimo ny was far more exact than that of Dr. Whaley, which the Tri-State Poultry Court said was suff icient to create a jury issue as to the amou nt, if any, o f cons cious p ain suf fered. It is also true, as appellee stresses, that Dr. Marsh disagreed with D r. Modell s testim ony. The def ense exp ert said that Dr. Modell had engaged in pu re speculation and opined that there was no objective evidence as to how long Connor suffered. In our view, wheth er Dr. M odell s o pinion or that o f Dr. M arsh w as to be credited was a ju ry issue. Appellee also argues that under Maryland law there must be some objective factual basis to support a c onscious p ain and su ffering aw ard. Acco rding to appellee, there was no such objective evidence in this case because no w itness saw Conn or enter the pool, nor, as far as anyone has been able to determin e, did anyone obs erve Con nor in distress while in the water prior to being found u nconscio us. That arg ument w as answe red in Beynon, supra, when the Court said [d]irect evidence is not necessary : the test is whether the plaintiff has presented evidence from which a reasonable inference could be drawn that the decedent experienced fear or fright. 351 Md. at 508.2 Appellee lastly argues that Connor may have blacked out as soon as he entered the water or so meti me a fter h e wa s in th e wa ter but be fore he drow ned. Eve rything is guess work because n o one saw him or hea rd him. W hether Co nnor black ed out before th e drowning process began was a subject that was appropriate for expert medical testimony based upon the autopsy report and evidence as to Connor s prior state of health. (The 2 Address ing whe ther the repre sentative of the deced ent in Beynon should have been permitted to recover damages for pre-impact fright, the Court of Appeals said: Also, permitting a jury to determine pre-impact fright requires the same reasoning and common knowle dge that we allow jurors to exe rcise in determining non-economic, pain and suffering damages in other tort actions, which, like assault, require an assessment of a victim s fear and apprehension. Direct evidence is not ne cessary. What is required is evidence from which a reasonab le inference could be drawn that the decedent experienced fear or fright. Such ev idence ex ists in this case, the 71 ½ feet long skid marks made by the decedent s vehicle imm ediately prior to the actual crash. A jury reasonab ly could have inferred from that evidence that the deced ent was aware of the impending peril; that he was going to crash, and attempted an evasive maneuv er to avoid it. Id. at 508 (emphasis ad ded). The Beynon Cou rt we nt on to say id. at 508-09 : A jury reasonably could have inferred from the evidence that the decedent was aware of the impending peril, that he was going to crash, and attempted an evasive maneuv er to avoid it. The jury equally reasonably could have concluded that the dece dent suffe red emotio nal distress or f right during that period before the crash, after he became aware of the imminent danger and began brakin g. This i s not ran k specu lation. The same type of inference as Beynon permitted co uld have b een draw n in this case, excep t that the d ecede nt, rather than expecting a terrible crash, expected death by drow ning. physicians retained by both parties determined the scenario that appellee suggests (starting to drow n while already u ncons cious) w as unlik ely). We therefore disagree with appellee s charac terization of this te stimon y as gue sswor k. Appellee cites fiv e out-o f-state c ases in s uppor t of its po sition. The cases are Phiri v. Joseph, 822 N.Y.S.2d 573, 574 (N.Y. App. Div. 2d 2006) (eye witnesses to an accident in which decedent was struck by a bus, testified, without contradiction, that they did not see the decedent move after the accident and did not know whether he had stopped breathing; evidence held insuff icient to show consciou s pain and suffe ring); Cochrane v. Schneider Nat l Carriers, Inc ., 968 F. Supp. 613, 617 (D. Kan. 1997) (claim for conscious pain and suffering disallowed because plaintiff failed to show that decedent was conscious at some time after the imp act); Feldman v. Alleghen y Airline s, Inc., 382 F. Supp 1271 (D. Conn. 1974) (representatives of the victim of an airplan e crash denied recov ery when no evidence was presented as to the location within the fuselage at which the decedent s body was found and no proof presented from which it could be inferred that she was conscious after the impact); In Re: Sin cere N avigatio n Cor p., 329 F. Supp. 652 (E.D. La. 1971) (representatives of seventeen of the crew man who were killed while abo ard a coast guard vessel that collided with a freighter were held ineligible to receive recompense for the decedents consciou s pain and suffering when none of the bodies were ever recovered, no evidence was presented as to whether the decedents were asleep or awake at the time of the collision, and no evidence was presented that any individual crewman suffered a moment prior to death) modified on other grounds, 529 F.2d 744 (5th Cir. 1976)3 There are a num ber of case s from oth er jurisdictions in which th e court held a jury question was pres ented as to w hether the v ictim endured conscious pain and suffering when the evidence was less substantial than that presented by the appellants in this case. In Clark v. Manchester, 13 A. 867 (N.H.1887), a three and one-half year old boy drowned in a stagnant, mud dy, and slim y pool of water in what o nce ha d been a city reserv oir. There were no eyewitnesses. Id. at 869. The New H ampshire Suprem e Court sa id that accura tely speaking, there is no such thing in any case as death happening simultaneously with the injury causing it, an d still less in cases of drowning. Id. The Court went on to say that the 3 The appellee also cites the case of Davis v. Park hill-Go odloe C o., Inc., 302 F.2d 489 (5th Cir. 1962), in which the trial judge granted judgment in favor of the defendant. On appeal to the Fifth Circuit Court of Appeals, the Court was not presented with the issue whether the evidence was sufficient to show conscious pain and suffering on the part of the deceden t. Nevertheless, when it remanded the case, the Court instructed the trial court to determine whether sufficient evidence existed to allow the issue of conscious pain and suffering to go to the jury. In doing so, the Court said: Great ingenuity was exercised in putting forward a medical theory based upon expert testimony of the probable length of time it took for a p erson fina lly to expire in drown ing. B ut there a re so man y unknowns in this unexplained slipping or falling of Davis into the water, that we should only say that substantial evidence will be required to sustain a finding of consciousness upon which to rest the permissible assumption of pain. 302 F.2d at 495. The facts as set fo rth by the Fifth Circuit in the Davis case are sketchy. The case arose when a healthy, twen ty-four-year-old se aman fe ll off a narro w ten foo t plank and landed in the water. His body was found about twenty-four hours after the accident and the cause of death was d etermin ed to be drow ning. Id. at 491. No one witnessed the acciden t. Until his body was fo und, the seama n s disa ppeara nce w as unex plained . Id. Unlike the case sub judice, there was no evidence that, at the time the decedent entered the water, he was conscious. condition of the wa ter afforde d compe tent eviden ce from w hich a jury mig ht legitimately infer not only that the d eath was not in stantaneou s, but also that th e child experienc ed both physical and mental pain an d suffering, for wh ich neither eyewitness nor expert witness testimo ny was n ecessa ry. Id. In Cook v. Ross Island S and & G ravel C o., 626 F.2d 746 (9 th Cir.1980), a deckhand fell off a barge into the C olumb ia Rive r. The fall was witnessed by the ship s captain. When the captain la ter testified, he d id not indica te whethe r the victim had been conscious either during the fall or immediately afterwards. The deckhand s body was found three months later and at trial the decedent s representatives presented expert testimony that the cause of death was asphyxia from drowning and that the deckhand had not sustained a skull fracture. Plaintiff s expert, a pathologist, testified that based on the absence of any evide nce of a sk ull fracture, he concluded that the decedent had been conscious when he entered the Columb ia River, and that he had remained conscious for up to 2 ½ minutes after submersion. The Court held that taking the evidence in the light most favorable to the plaintiff, sufficient evidence was presented to raise a jury question as to whether the decedent had suffered conscious pain and suffering prior to death. The Court of Appea ls of Lou isiana cons idered the c laim of the survivors of a boat captain (Capta in Wa ll) who fell betw een tw o barge s moor ed toge ther in a r iver. Wall v. Progressive Barge Line, In c., 703 So.2d 681 (La. Ct. App. 1997). The Wall Court upheld a $50,000 .00 award for the dec eased s pa in and suffering prior to death based on the fact that when the decedent s body was recovered there was no evidence of physical injury to the body, ex cept fo r asphyx iation. The Court of Civil A ppeals of Texas reached a result similar to that in Wall in Mitchell v. Akers, 401 S.W.2d 9 07 (Tex. Civ. A pp. 1966). In Mitch ell, a boy, age three years and eight months, drowned in a private swimming pool located on the de fendant s prop erty. Id. at 908. The little boy had entered the pool area through an o pen ga te. Id. No one witnessed the drowning, bu t a doctor who arrived on the scene shortly after the body was discovered examined the child and later opined that the child died of drowning after struggling for 2 or 3 minutes before losing consciousness. Id. at 912. The doctor further testified that during the 2 or 3 minutes the child probably endured physical pain and mental anguis h. The basis of the doctor s opinion that the child was conscious when he entered the pool was based on the absence of any bruises or marks on the c hild that m ight indicate that the child may have fallen against a hard o bject and becom e unconscious be fore becoming immersed in the water. Id. The Te xas Cou rt of Civil A ppeals held that such evidence was sufficient to support an award in favor of the estate for the child s conscious pain and su ffering . Id. To the same effect, see Kline v . Maritr ans C P, Inc., 791 F. Supp. 455, 466 (D. Del. 1992) ( There is testimony that indicates Kline did not experience a premortem injury that would render him unconscious and there is testimony delineating the time a person of Kline s p hysical stature could be expected to survive and remain conscious under the conditions. Therefore, the Cou rt concludes that defend ants motion for sum mary judgm ent on th e issue o f dam ages fo r pain an d suff ering m ust be d enied. ). For all the reasons stated above, we hold that the motions judge erred in granting summary judgment in favor of the pool company as to the claim m ade on behalf of Connor s estate fo r the chil d s pre- mortem consci ous pa in and s ufferin g. JUDGMENT IN FA VOR OF D .R.D. POOL SERVICE, INC. AS TO THE CLAIM BY THE ESTATE OF CONNOR FREED FOR R E C O M P E N SE D U E T O T H E C H I L D S C O N S C I O U S P A I N A N D S U F F E R I N G, R E V E R S E D ; A L L O T H E R J U DG M EN T S AFFIRMED; COSTS TO BE PAID 50% BY APPELLEE AND 50% BY THOMAS FREED AND DEB ORA H NE AGL E-W EBB ER, J OIN TLY .
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