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Kittitas County Record Verdict: $800,000
The $800,000 wrongful death verdict in Dosanjh v Bhatti
raises several interesting practice issues. Plaintiff was
killed on the job, yet evaded the workman's compensation
bar. Defendant, killed in the same accident, was plaintiff's
employee. The case was tried in Kittitas County where no
prior reported verdict exceeded $100,000. Plaintiff was East
Indian, and his marriage to the chief beneficiary of the
estate was arranged. His economic losses had to be based on
an earnings history averaging less than $10,000 (Canadian)
per year.
Twenty Challenges for Cause
Kittitas County has a well-deserved reputation for an
anti-plaintiff jury pool. The largest reported personal
injury verdict was a 1992 verdict of $100,000 for the death
of a long haul truck driver. So when Dean Brett entered
Kittitas County Superior Court representing a long haul
truck driver who had the ill fortune of being killed on
Interstate 90 while traveling through Ellensburg, especially
representing an East Indian widow who had been part of an
arranged marriage, he knew he had jury selection problems.
The 39 potentials who showed up for jury duty quickly
expressed their feelings that "money won't bring him back"
and "both drivers died so why should one family take
advantage and profit from the other family" and "life is
tough, but the widow has to learn to survive on her own".
Realizing that the panel was too conservative to re-educate,
Brett allowed the more vocal jurors to express their ire at
outlandish plaintiffs' verdicts, allowed other jurors to
agree with the principles enunciated by the vocal
conservatives, and then induced 20 of the 39 jurors to agree
with the proposition that decedent's widow was doing
something "immoral" by bringing a claim on behalf of herself
and her children for the negligently inflicted death of her
husband. Having thus prejudged the case, all 20 potentials
were dismissed for cause, leaving the 19 who had expressed
no such prejudicial belief, even though given a clear
opportunity to do so, as a reduced and more receptive jury
pool.
The Workman's Compensation Bar
The initial challenge had been to get a jury at all. Bhatti
was employed by Dosanjh as a co-driver in his long haul
trucking company. Bhatti negligently drove off the road,
rolled the truck and killed both himself and Dosanjh.
Defendants raised the bar of the British Columbia Worker's
Compensation Act, claiming that it prevented Dosanjh from
bringing suit against his co-worker. Trial court judge
Michael Cooper agreed, granting summary judgment dismissal
of all plaintiffs' claims. The Court of Appeals in Dosanjh
v. Bhatti, 85 Wn. App. 769 (1997) reversed, holding that
under British Columbia's Worker's Compensation Act, a worker
killed by a co-worker in a foreign jurisdiction can elect to
have the claim adjudicated under the law of the foreign
jurisdiction in lieu of worker's compensation benefits. The
Supreme Court refused to grant review, thus remanding the
case for trial.
Mediation Fails
Plaintiffs' counsel Dean Brett of Brett & Coatsand
defense counsel Thomas J. Collins of Merrick, Hofstedt &
Lindsey engaged the services of experienced mediator David
Thorner of Yakima's Thorner, Gano & Kennedy. Unfortunately,
CIGNA of Canada appeared at the mediation with a negotiator
who was unwilling to offer more than $25,000 for this
wrongful death claim. The low offer closed all further
negotiations and no further offer was made prior to jury
verdict.
Summary Judgment on Liability
It was now plaintiffs' turn for summary judgment. Plaintiffs
moved for summary judgment on liability arguing that
defendant had simply driven off the road in this one-vehicle
accident. Defendants attempted to avoid summary judgment by
pointing to the Washington State Patrol investigation
showing that the truck had a leaky muffler under the cab
which may have contributed to defendant's drowsiness and the
ultimate crash. Defendants offered the testimony of King
County Medical Examiner Donald Reay M.D. In a battle of
experts, plaintiffs were able to demonstrate through the
testimony of the Yakima County Medical Examiner Jeff
Reynolds M.D. and forensic pathologist James A.J. Ferris
M.D. that the carbon monoxide content of diesel fumes,
unlike the carbon monoxide content of gasoline funds, is
insufficient to cause drowsiness without first inducing
physiological effects such as vomiting which would have
warned a driver of impending drowsiness. Judge Cooper
granted summary judgment on liability, reserving the issue
of damages only for trial.
Loss of Consortium in an Arranged Marriage
Plaintiff sought the classic emotional losses for the
decedent's widow. The difficulty was that the marriage had
been arranged, in fact, Malkiat Dosanjh was sent to
Vancouver to marry Amar Dosanjh by her parents, and she had
not met her husband-to-be until she walked down the aisle. A
straightforward confrontation of the issue was found to be
the best approach. Numerous witnesses described the
tradition of arranged marriages in Sikh culture, marriages
which work out at a statistically better rate than America's
so-called "love marriages." In a trial highlight, Malkiat
Dosanjh then narrated a slide show in the darkened courtroom
showing their growing family as through the years she fell
in love with her husband. Her testimony, together with the
testimony of numerous members of the Vancouver Sikh
community, demonstrated the deep and abiding love between
the parties. At the end of the trial, the judge and jury
both expressed appreciation for their education about the
rich tradition of Sikh arranged marriages.
Pain and Suffering in Anticipation of Death
Damages were also sought for pain and suffering in
anticipation of death. When the truck overturned and slid
down Interstate 90, it caught on fire. A following driver
ran up to the truck and saw the driver inside, flailing and
shouting, "Help me, help me." Despite her best efforts to
open a door or break open a window, she was unable to rescue
the driver, but testified that she could not see into the
sleeper compartment of the truck to determine whether
Dosanjh was conscious following the crash. Jurors were thus
left with very little evidence regarding whether Dosanjh had
survived the fire in a conscious state, but a lot of
evidence that if he did survive, he met a horrible fate--
being trapped inside the burning sleeping compartment of an
overturned truck. Plaintiffs filled the gap with the expert
assistance of Duane MacInnis, PE, of MacInnis Engineers of
Richmond, British Columbia who measured all inside and
outside diameters of the sleeping compartment and compared
his drawings with photographs of the crash vehicle,
concluding that the degree and location of crash deformation
provided a pocket of survivability for any passenger in the
sleeping compartment. Based on this expert analysis, the
jury awarded $75,000 for pain and suffering in anticipation
of death.
Economic Loss
Finally, Plaintiff confronted a difficulty establishing the
economic loss because the long-haul truck driver's income
tax records indicated he had made $8,000-$12,000 per year
(Canadian) in his best years. Plaintiff called economist
Professor Michael Ruble of Central Washington University who
projected a loss of earning capacity based on the average
long-haul truck driver in British Columbia. Since Dosanjh
was in a start-up phase of his business, if he succeeded, he
would earn at least the average long-haul wage. If he did
not, he would most likely close his business and obtain a
job working for someone else as a long-haul truck driver.
Professor Ruble calculated an economic loss, depending upon
discount rate, of between $417,000 and $477,000. The jury
awarded $500,000 in economic loss primarily because every
East Indian witness, friend, family or neighbor, was asked a
series of questions involving each of their relatives, where
they worked, how long they had worked there, how much they
made, so as to demonstrate that Dosanjh's family, friends
and community was made up of hard-working, dedicated,
economically successful individuals. In interviewing several
jurors after the trial, they reacted as did the jurors in
the two mock juries-- being reluctant to award non-economic
damages, but generous with economic losses.
The verdict totaled $800,000: $75,000 each to the widow, the
son and the daughter, $75,000 in pain and suffering in
anticipation of death, and $500,000 in lost earning
capacity. The verdict was thus several-fold greater than the
largest personal injury or wrongful death verdict ever
before recovered in Kittitas County.
Dosanjh v. Bhatti, Kittitas County Cause No. 94 2
00258 1, was tried by WSTLA Eagle Member Dean Brett of
Bellingham's Brett & Coats. |
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