California Changes Law: Pain and Suffering Survives the Deceased

A specter of the deceased’s pain and suffering will soon haunt California defendants.

California law has long been that damages for pain and suffering “die with the plaintiff,” on the rationale that such damages are personal to the individual. Recent legislation signed into law by Governor Newsom on October 5 and effective January 1 changes this, and places California’s treatment of pain and suffering damages more in line with a majority of the nation. This bill, originally introduced by Senator Laird in February 2021, has been amended slightly: pain and suffering damages will be granted a life beyond the deceased for those cases that were granted preference before January 1, 2022, or are filed between January 1, 2022 before January 1, 2026.

One could reasonably anticipate that before this sunset date, the plaintiffs’ bar will introduce further legislation to make the change permanent.

The new law will not only increase available damages in many cases, but will correspondingly make litigation more difficult to settle, and therefore costlier even where there are meritorious defenses.

The bill was required to go through the Assembly Appropriations Committee before making its way to the governor’s desk. This route is usually reserved for bills that will have a fiscal impact on California’s budget. An Assembly report highlighted that some State entities, such as the University of California, CalTrans and Cal Fire, have faced million dollar lawsuits for personal injury, so pain and suffering’s extended life will have a fiscal impact that needed to be considered before passing the bill out of the legislature.

Through the General Fund for tax payers, and more generally through increased defense costs, this may amount to California citizens paying more as these costs are passed on to consumers.

(This is a follow up to the article Pain and suffering may become awardable in California wrongful death cases, from May 20, 2021.)

Pain and suffering may become awardable in California wrongful death cases.

California may be joining the majority of the country by making pain and suffering damages available in wrongful death cases. Under current law, pain and suffering is only available in personal injury cases. Senator Laird introduced Senate Bill 447 in February 2021, which would allow the survivor of a deceased plaintiff to recover damages for the pain and suffering of the deceased. The senator premised the need for this change on COVID delaying the courts and preventing trials, and to that end amended the original proposal so that it would apply only where the pain and suffering accrued before January 1, 2026.

Although Senator Laird had originally asserted the need for this change because COVID 19 was depriving some plaintiffs of their day in court, supporters of the bill have voiced more general concerns, such as the notion that the current law allows defendants to “get away with” paying less damages simply because the plaintiff dies before trial, and deprives the victim’s family of the additional compensation. Supporters of the bill include the Consumer Attorneys of California, the Consumer Federation of California, and various unions. Opponents include the California Defense Counsel, California Justice Association, California Medical Association, the California Chamber of Commerce, and associations of health facilities and assisted living facilities.

If this bill is passed, it will make wrongful death cases more expensive to settle. No matter whether the death had anything to do with the underlying suit.

The bill has been sent to the Assembly to weigh in on this change.

California Increases Potential Liability Exposure in Multi-Defendant Cases

The risks of litigating in California just got larger.

California’s Proposition 51 makes defendants jointly liable for all economic damages, but severally liable for noneconomic damages only in proportion to fault. The California Supreme Court yesterday unanimously ruled that intentional tortfeasors cannot use Proposition 51 to reduce their share of noneconomic damages. Resolving a split among intermediate appellate courts, the court ruled that “section 1431.2, subdivision (a), does not authorize a reduction in the liability of intentional tortfeasors for noneconomic damages based on the extent to which the negligence of other actors — including the plaintiffs, any codefendants, injured parties, and nonparties — contributed to the injuries in question.”

This decision will further incentivize plaintiffs to include and pursue intentional tort claims in multi-defendant cases, even when they are really only “add-ons” to a claim grounded in another theory (e.g., fraud claims in strict product liability failure to warn cases). The potential damages against any defendant facing such a claim now include all, not just some, of the noneconomic damages. Noneconomic damages for such matters as pain, suffering, and loss of consortium are often a multiple of the economic award. Compounding the problem: whether such intentional tort claims will be precluded from insurance coverage as a “loss intentionally caused by the insured.” 

In B.B. v. County of Los Angeles, police used excessive force and caused the death of a man they caught assaulting a woman on the street while in a drug-induced haze. The jury found decedent 40% responsible, several deputies negligent and collectively 40% responsible, and Deputy Aviles liable for battery and 20% responsible. The trial court entered a judgment holding Aviles liable for 100% of both economic and non-economic damages. The Court of Appeal reversed, but the Supreme Court reversed the Court of Appeal, effectively reinstating the judgment.

In a typically thoughtful opinion from Justice Chin, the court ruled that the statute’s application to cases decided “under principles of comparative fault” included negligence (and strict product liability), but did not include intentional tortfeasors. The court rejected multiple arguments that this was unfair and inconsistent with other language in Proposition 51, including those made by defendants and in an amicus curiae brief supporting the defense to which yours truly contributed.

We previously reported on this case just after it was argued, see here.

Genetic Transformation Injury As A Basis For Emotional Distress Damages

The traditional rule in tort law is that the threat of future harm, not yet realized, is not sufficient to state a claim. However, over the past twenty-five years, plaintiffs in toxic tort litigation have sought to assert new non-injury damage claims, such as medical monitoring and fear of cancer. Providing compensation for an event that has not yet occurred and, indeed, may never occur, is a long way from traditional tort, which only permits recovery when a victim has suffered a harm.

In November 2012, KBR, the largest U.S. military contractor, lost a federal court jury verdict in Portland, Oregon, in the case, Bixby et al v. KBR, Inc, et al,  and ordered to pay twelve U.S. soldiers $85,000,000 in non-economic and punitive damages for alleged toxic  hexavalent chromium dust exposure at a company work site in Iraq in 2003. The trial was a test case over injuries allegedly suffered by Oregon National Guardsmen who were tasked with protecting KBR workers at Qarmat Ali, a water treatment facility the company was hired to rehabilitate after the overthrow of Saddam Hussein in 2003.

The Veterans Administration has developed a medical surveillance program for veterans who may have been exposed to hexavalent chromium at the Qarmat Ali Treatment Facility in Iraq. The program is provided free of any charge.  While VA does not expect to find many serious Qarmat Ali-related illnesses, the VA believed it prudent to monitor the health of those who may have been exposed.

The jury awarded each plaintiff $850,000 in non-economic damages (later reduced to $500,000 under the Oregon statutory damages cap) and $6,250,000 in punitive damages. The only “injury” plaintiffs had in common was an untested, fleeting, and imperceptible “genetic transformation injury” on which their emotional distress damages for fear of cancer were based.

On its pending appeal before the Ninth Circuit, KBR argues that it was error for the trial court to permit such recovery on the ground that Oregon law does not permit recovery of emotional distress damages where, as here, there is no present physical harm associated with the purported future risk of harm or, indeed, there is no physical injury at all.

An Amici Curiae brief filed by the International Association of Defense Counsel (“IADC”) and American Chemistry Council (“ACC”) argues persuasively that a majority of U.S. courts do not permit a plaintiff to satisfy the physical injury requirement through allegations of sub-cellular harm where the plaintiff is asymptomatic with no observable physical symptoms. For this important assignment, IADC and ACC turned to veteran appellate lawyers, Mary-Christine Sungaila and Patrick Kelly of Snell & Wilmer LLP,  Thieir brief provides an excellent overview of the law on this issue.

Courts are properly concerned about flooding the judicial system with false emotional distress claims. To allay this concern, some courts have imposed “floors” for recovery (e.g., a requirement that emotional distress be “serious”) and “hurdles” to recovery (e.g., the presence of physical harm requirement for emotional distress claims).

 In the KBR litigation, the plaintiffs’ expert, Dr. Carson, was unable to say whether any individual plaintiff experienced a “genetic transformation injury” at Qarmat Ali, much less whether such an injury persisted in any particular individual. Moreover, he acknowledged that “genetic transformation injury” is asymptomatic with no observable physical symptoms and may be spontaneously repaired by the body.

As the Ninth Circuit held in Dumontier v. Schlumberger Technology Corp., 543 F.3d 567 (9th Cir. 2008), “not every alteration of the body is an injury” and sagely observed that “all life is change, but all change is not injurious.” Thus, even if radiation always changes DNA, that does not mean that there will always be corresponding compensable physical pain, injury or disease.

On the basis of their well-crafted arguments, Sungaila and Kelly argue that if the court were to accept plaintiffs’ claim, it would throw open the possibility of litigation by any person experiencing even the most benign sub-cellular damage. Sungaila and Kelly distinguish KBR from other cases where, for example, a plaintiff who demonstrated actual mutations that would trigger cancer upon arriving at the age of puberty or sexual maturity.

We look to the Ninth Circuit to reverse the trial court decision and to reject plaintiffs’ argument that sub-cellular or genetic transformation is sufficient, in and of itself, to permit recovery for emotional distress damages.