Maryland: Court Finds Conscious Suffering By Inference

On September 24, 2010, the Maryland Court of Appeals issued the opinion of DRD v. Freed.

In this case, a five year-old child was swimming at a country club under the supervision of an adult.  Although the child was wearing a flotation device for the majority of his time at the pool, at one point he asked to have it removed to use the bathroom.  A couple of minutes later, the adult realized the child had not returned to put the flotation device back on.  The child was then found face down in the pool, and could not be revived.  Although 80 to 90 people were at the pool, none of them saw the child re-enter the pool or struggle in the water.

Before trial, the trial court granted summary judgment to the Defendant on the issue of whether there was sufficient evidence that the child suffered any conscious pain and suffering.  At trial, the jury rendered a verdict of over $4 million, and the trial court reduced the wrongful death verdict to $1,002,500 based on Maryland’s cap on non-economic damages.

On appeal to the Court of Appeals of Maryland, the issues were: 1.) whether Maryland’s cap on non-economic damages is unconstitutional, and 2.) whether the Plaintiffs’ contention that the child suffered conscious pain and suffering was supported by evidence sufficient for that claim to go to the jury for consideration.

On the first issue, the Court of Appeals of Maryland held that the Maryland’s cap on non-economic damages is constitutional.  This is the third case specifically holding that Maryland’s cap on non-economic damages is constitutional.

On the second issue, the Court of Appeals of Maryland also held that the Plaintiffs’ contention that the child suffered conscious pain and suffering was supported by evidence sufficient for that claim to go to the jury for consideration.  The Court applied an analysis similar to that used in pre-impact fright cases to hold that, while no one had seen the child while he was drowning and therefore there was no direct eyewitness testimony regarding whether the child suffered conscious pain during the drowning, the expert testimony on the issue was sufficient for the jury to find that the child suffered conscious pain and suffering.  The Court reasoned that the lack of any evidence showing that the child was unconscious prior to entering the water, coupled with the Plaintiffs’ expert testimony that significant pain and suffering is experienced by drowning persons such as the child, was sufficient evidence for a jury to conclude the child suffered conscious pain and suffering while drowning.

This case is the latest failed attempt by the plaintiffs’ bar to challenge the validity of Maryland’s cap on non-economic damages.  However, this case also lowers the standard for the sufficiency of evidence of conscious pain and suffering