CM’s Coast To Coast Reversals Of Improper Seven-Figure Jury Awards Underscore Value Of The Appeal Process
March, 2004
Two recent CM appellate victories of note suggest that reviewing courts are turning a more critical eye toward jury awards unfounded in law or resulting from an improper focus on race.
In Philippides v. Bernard and Wolverine World Wide, Inc., 88 P.3d 939, the Washington Supreme Court construed that State’s “Child Injury/Death” statute to deny parents, who are not financially dependent upon their adult child, a cause of action for his wrongful death.
In Tierco Maryland, Inc. v. Williams, 2004 WL 1078135, the Maryland Court of Appeals, which is that State’s highest court of review, reversed a multi-million dollar award -- because plaintiffs’ attorney had pandered to racial prejudice.
Philippides
A jury awarded each parent of a 22 year-old decedent $900,000 for loss of consortium resulting from their child’s death. The trial court had ruled that a 1998 amendment of RCW4.24.010 had redefined the class of persons entitled to bring a cause of action for loss of consortium. That 1998 amendment referenced parents “dependent for support” -- without qualification. The Statute did not specify “financial dependence.” Also the “intent section” of the Statute, which dealt with recoveries for injuries to minor children, broadly included “emotional, psychological or financial support” within the concept of support.
The Court held that the Statute does not permit the parent of an adult child to recover damages for loss of consortium when the parent was not financially dependent upon the child. That which the plaintiffs sought was a new definition of support and the Court held that it would not find a significant change in the Statute “by implication.”
Most significant, I believe, in prompting the Court to shed its “activist” reputation and both strictly construe the Statute and reject plaintiffs’ alternative claim that the Court should recognize a common law cause of action for wrongful death, is the fact that Washington has four inter-related statutory causes of action for wrongful death and survival. A broad construction of the phrase “dependent for support” in the Statute before the Court would have created a conflict among the statutes and vitiated a two-tier class of beneficiaries set forth in the related Wrongful Death Statute.
That, however, was not sufficient to dissuade the two dissenting Justices, who responded positively to plaintiffs’ claim that the parent of an 18 year-old should have the same rights as a parent of a 17 year-old. The dissenting Justices proposed to obviate the conflict problem above referenced, stating, “I would hold that the 1998 amendment to RCW4.24.010 applies to RCW4.24.010 but does not apply to the ‘two-tier’ Wrongful Death and Survival Statutes found in Chapter 4.20 RCW.”
Tierco
The Maryland Court directed the first half of its 60 plus-page opinion to a difficult jurisdictional issue which resolved in defendant’s favor, and then proceeded to deal -- not with a legal issue, per se, but with conduct of counsel - a point which the dissenting Judge felt did not merit the attention of the highest court of the State. This claim of assault, battery, false imprisonment and negligent supervision, brought by five members of a family who had been subdued in an altercation at the Six Flags facility in Maryland, was precipitated when one of the plaintiffs, a young child, was denied access to a ride because she did not meet the height requirements imposed by the manufacturer of the ride and mandated by State law. There were no formal allegations of racial discrimination asserted before the trial court. Nevertheless the trial, in effect, became one as much about the propriety of the actions of the ride attendants in supposedly allowing small white children to ride the particular attraction, as it was about the charges of assault and false imprisonment. The trial record was replete with references to privileges accorded “whiter” children. This the Maryland Court would not tolerate -- and the Court made plain that it intended its harsh treatment of such conduct to stand as a testament of the Court’s views:
Respondents sought at trial to cast as an act of racial discrimination at least the conduct of Six Flags and its employees in not extending to an African-American family the same benefits allegedly extended to white patrons. How this effort also spilled over into all aspects of this case is of concern, notwithstanding Plaintiffs/Respondents’ disclaimers, at times, that they were not advancing racial discrimination in support of their claims. Where the focus of the plaintiffs’ case at trial should have been on establishing Six Flags’ allegedly unreasonable use of force in restraining respondents and then forcibly removing them to the security office where they were detained, much of the testimony instead centered on the events that occurred before they left the boat on the ride. The mistreatment of individuals on the basis of race, if that is what occurred, is deplorable and, if properly pled, actionable, but it cannot be the focus of a trial where it is not relevant to proof of any element of the theories of recovery pled by plaintiffs/respondents.
The Court attributed the $1 million compensatory award and $1.5 million punitive award --which were disproportionate to the injuries--to this wrongful conduct, reversed and remanded for a new trial, concluding that there exists “a significant probability that the jury’s verdicts in the present case were influenced by respondents’ irrelevant and improper injection of racial considerations into the trial. Such statements ‘if irrelevant and unjustified and calculated or tending to arouse racial, national or religious prejudice or feeling, [are] universally condemned.’” ¨
James T. Ferrini
jferrini@clausen.com
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