Opinion
Case No. 5:00-CV-89
February 18, 2004
ORDER
In accordance with the Opinion filed this day,
IT IS HEREBY ORDERED that Plaintiff, as Personal Representative of Decedent Melva Dee Parrott, will be awarded $100,000 in compensation for Melva Dee Parrott's pain and suffering; $475 for funeral and burial expenses; and $3,737.90 for costs after he submits documentation of these costs.
IT IS FURTHER ORDERED that a hearing will be scheduled after the parties appoint a guardian ad litem for Brace, Maggie and Pamela Parrott and after Plaintiff, as Melva Dee Parrott's personal representative, has filed a motion for authority to distribute the proceeds.
IT IS FURTHER ORDERED that Plaintiff will submit documentation supporting their request for attorneys' fees by the date of the hearing.
OPINION
This matter is before the Court to determine the amount of damages to be awarded Plaintiff in this case.I. Facts
The following facts are taken solely from Plaintiff's First Amended Complaint (Dkt. No. 30) because the Court struck Defendants' Answer to Amended Complaint on August 18, 2003.
This case arises from the death of Melva Dee Parrott, a young child who was born on May 4, 1998 and died on June 29, 1999. (Am. Compl. ¶¶ 12, 89). At the time of her death, Parrott was in the care of Eagle Village, Inc. ("Eagle Village"), a private, non-profit organization. Id., ¶¶ 6,13. Eagle Village had chosen Sandy Moore to serve as Parrott's immediate caregiver. Id., ¶ 17. While under the care of Eagle Village and Sandy Moore, Parrott died of bronchiolitis and bronchitis, a condition that Plaintiff alleges would not have led to Parrott's death had she been properly treated. Id., ¶¶ 88-89.
On August 1, 2000, Plaintiff filed suit against Defendants Eagle Village and Moore. On August 18, 2003, the Court adopted the Report and Recommendation issued by Magistrate Judge Ellen S. Carmody, thereby granting Plaintiff's Motion for Default Judgment against Defendants Eagle Village and Sandy Moore and ordering the parties to submit written proposals regarding the amount of damages that should be awarded. The Report and Recommendation also recommended that the judgment not exceed Defendants' $2 million insurance policy limits.
Pursuant to MICH. COMP. LAWS § 600.2922(6)(a), the Court will order a hearing after Plaintiff, as Melva Dee Parrott's personal representative, files a motion for authority to distribute the proceeds. Melva Dee Parrott's three siblings, Margaret, Brace, and Pamela, are all minors. Under Michigan law, "[i]f any interested person is a minor, a disappeared person, or an incapacitated individual for whom a fiduciary is not appointed, a fiduciary or guardian ad litem shall be first appointed, and the notice provided in subdivision (b) shall be given to the fiduciary or guardian ad litem of the minor, disappeared person, or legally incapacitated individual." MICH. COMP. LAWS § 600.2922(6)(c). No fiduciary or guardian ad litem has been appointed in this case; therefore, the Court will not distribute the settlement proceeds until one has been appointed for Margaret, Brace, and Pamela Parrott. After a guardian ad litem has been appointed, the Court will conduct a distribution hearing pursuant to MICH. COMP. LAWS § 600.2922(6)(d).
II. Analysis
Plaintiff seeks damages to compensate for the following losses: loss of enjoyment of life, conscious pain and suffering, loss of society and companionship, funeral and burial expenses, costs under Federal Rule of Civil Procedure 54(d), attorneys' fees, prejudgment interest, and postjudgment interest.
Before determining the amount Plaintiff should receive for each of these types of losses, the Court must first decide what law to apply when calculating these losses. Although Plaintiff brought suit under 42 U.S.C. § 1983, this federal statute does not indicate how damages should be determined, nor is there any federal wrongful death statute that provides a remedy for the current cause of action. Robinson v. Fiedler, 870 F. Supp. 193, 195 (W.D. Mich. 1994). Under 42 U.S.C. § 1988, where federal law does not provide a suitable remedy for a § 1983 action, the Court should look to "the common law, as modified and changed by the constitution and statutes of the [forum] State . . ." Michigan mandates the application of its law when no foreign state has an interest in having its law applied. Sutherland v. Kennington Truck Serv., Ltd., 562 N.W.2d 466, 471 (Mich. 1997).
Melva Dee Parrott was born in and died in Michigan. (Pl.'s Br., Exhs. 1, 2). Defendant Eagle Village, Inc. is a Michigan corporation, and Defendant Sandy Moore is a resident of Michigan. (Compl. ¶¶ 4, 7). Because no foreign state has an interest in having its law applied, the Court will apply Michigan law to the determination of damages in this case.
Wrongful death actions in Michigan, the forum state, are governed by Michigan Compiled Laws § 600.2922(6), which states:
In every action under this section, the court or jury may award damages as the court or jury shall consider fair and equitable, under all the circumstances including reasonable medical, hospital, funeral, and burial expenses for which the estate is liable; reasonable compensation for the pain and suffering, while conscious, undergone by the deceased person during the period intervening between the time of the injury and death; and damages for the loss of financial support and the loss of the society and companionship of the deceased.
Plaintiff seeks damages only for the following losses under the statute: loss of enjoyment of life, conscious pain and suffering, loss of society and companionship, and funeral and burial expenses.
Therefore, the Court will not address the issue of damages for medical or hospital expenses or damages for loss of financial support.
A. Funeral and Burial Expenses
Plaintiff requests $475 for funeral and burial expenses and has attached documentation of these expenses as Exhibit 22 of his Response. Defendants do not object to reimbursement of these expenses. The Court finds these expenses to be reasonable and therefore will award Plaintiff $475 for funeral and burial expenses of Melva Dee Parrott.
B. Costs
Plaintiff requests $3,737.90 for costs incurred while litigating this matter. Although Plaintiff has not attached any documentation of these expenses, he has provided a brief description of the expenses in the Response. Defendants do not object to reimbursement of these expenses. The Court finds these expenses to be reasonable and therefore will award Plaintiff $3,737.90 for costs upon receipt of proper documentation of these expenses.
C. Loss of Enjoyment of Life
Plaintiff argues he is entitled to $39,650,000 for Melva Dee Parrott's loss of enjoyment of life. Under Michigan law, damages for the loss of enjoyment of life "are only available to living plaintiff's who have been permanently injured such that they cannot enjoy life's pleasures." Brereton v. United States, 973 F. Supp. 752,756 (E.D. Mich. 1997). A plaintiff cannot recover any damages for "loss of enjoyment of life that would have been experienced but for [decedent's] untimely demise." Id. at 757. The cases Plaintiff cites in support of his argument that he is entitled to damages for loss of enjoyment of life are all Seventh Circuit cases and are not controlling here. As a result, Plaintiff is not entitled to any damages resulting from Melva Dee Parrott's loss of enjoyment of life after her death. D. Conscious Pain and Suffering
Plaintiff argues he is entitled to $7,500,000 for Melva Dee Parrott's conscious pain and suffering. Under Michigan law, damages for pain and suffering are expressly limited to "the pain and suffering, while conscious, undergone by the deceased person during the period intervening between the time of the injury and death." MICH. COMP. LAWS § 600.2922(6). Evidence of "conscious pain and suffering may be inferred from evidence that does not explicitly establish the fact." Byrne v. Schneider's Iron Metal, Inc., 475 N.W.2d 854, 857 (Mich.Ct.App. 1991).
Plaintiff argues Melva Dee Parrott suffered greatly between the time her illness should have been treated by Defendants and the time of her death. In support of this argument, Plaintiff has provided the Court with a letter from Richard Gallery, M.D., a board certified pathologist, which states in part: "It is my opinion to a reasonable degree of medical certainty that Melva Parrott would have undergone a prolonged period of vigorous struggle to breathe with conscious panic, fear and physical pain leading to her death from asphyxia due to her reactive airway disease." (Pl.'s Br., Ex. 3). Plaintiff has also provided the Court with a letter from Marlene Wust-Smith, a board certified pediatrician, which states that she concurs with Dr. Gallery's opinion regarding Melva Dee Parrott's death. (Pl.'s Br., Ex. 15).
Defendants dispute that Parrott experienced any conscious pain and suffering between the time her illness became apparent and the time of her death. In support of this argument, they state that Dr. Randall Brown, a pediatric pulmonologist, found that Parrott died suddenly; however, they do not include a copy of his opinion. Their only other rebuttal evidence is testimony from an EMT who saw Parrott after she had already stopped breathing. (Defs.' Br., Ex. 2, pp. 25-26), an affidavit from a school psychologist who saw Parrott on the day of her death (Defs.' Br., Ex. 3, p. 2), and testimony from Defendant Sandy Moore (Defs.' Br., Ex. 1, pp. 17-18). Of these three individuals, only Sandy Moore would have known if Parrott experienced any conscious pain and suffering shortly before her death because only Sandy Moore saw her during this time. The Court places a limited amount of credence on the unsupported testimony of a Defendant who obviously would want to minimize any pain and suffering Parrott experienced while in her care. Therefore, the Court finds that Plaintiff has more than met his burden of showing that Melva Dee Parrott experienced at least some conscious pain and suffering before her death.
Having determined that Melva Dee Parrott experienced conscious pain and suffering, the Court must now determine a fair and equitable amount of damages. In Michigan, damages for conscious pain and suffering in wrongful death cases have ranged from $5,000 in French v. Mitchell, 140 N.W.2d 426 (Mich. 1966) to $362,043.70 in In re Thornton, 481 N.W.2d 828 (Mich.Ct.App. 1992). Michigan courts generally award large damages for pain and suffering only when the decedent appears to have suffered for a prolonged period of time. See, e.g., Pietrantonio v. United States, 827 F. Supp. 458 (W.D. Mich. 1993) (awarding $200,000 for pain and suffering when decedent died two years after a misdiagnosis); cf., French, 140 N.W.2d at 426 (limiting damages to $5,000 when decedent lived for only nine hours). However, a large award for pain and suffering may be justified, even when the decedent was conscious for only a brief period of time, when the decedent was very young. See Byrne, 475 N.W.2d at 854 (awarding $100,000 for pain and suffering when an eight-year old suffocated in a ditch, even though evidence showed decedent lost consciousness within minutes).
The evidence does not indicate that Melva Dee Parrott suffered for a long period of time before her death. However, like the decedent in Byrne, she may have experienced a greater amount of pain and suffering than an adult would have under the same circumstances, due to her extremely young age.
As a result, the Court will award $100,000 in damages to Plaintiff for Melva Dee Parrott's conscious pain and suffering.
E. Loss of Society and Companionship
The following members of Melva Dee Parrott's natural family may submit claims for loss of society and companionship: her natural mother and father; her two sisters, Maggie and Pamela; and her brother, Bruce. MICH. COMP. LAWS § 600.2922(3).
In Michigan, damages for loss of society and companionship are intended to compensate a victim's family "for the destruction of family relationships which results when one family member dies." In re Carr, 471 N.W.2d 637, 640 (Mich.Ct.App. 1991). Faced with the daunting task of determining an appropriate measure for this loss, courts have decided that "[t]he only reasonable measure of the actual destruction caused is to assess the type of relationship the decedent had with the claimant in terms of objective behavior as indicated by the time and activity shared and the overall characteristics of the relationship." Id.
At the time of Melva Dee Parrott's death, she had been removed from her parents' care, and their parental rights were terminated after her death. Additionally, Maggie Parrott was separated from her siblings before Melva's death and was not adopted by the family that adopted Bruce and Pamela Parrott. (Pl.'s Br., pp. 10-11). The Court finds that neither Melva Dee Parrott's parents nor her sister Maggie have demonstrated that they would have spent any significant amount of time with her as a family had she lived. Therefore, the Court finds that these three parties are not entitled to any damages for loss of society and companionship.
Melva Dee Parrott's remaining siblings, Bruce and Pamela Parrott, seek damages for loss of her society and companionship. These two siblings have been adopted by the same family, and their adoptive parents have indicated that they would have adopted Melva as well. (Pl.'s Br., p. 11). However, such assertions are merely speculative, and Plaintiff cannot prove that Bruce and Pamela Parrott would have spent any time with Melva Dee Parrott as siblings had Melva survived. The family relationship between the siblings was already destroyed before Melva's death, when the children were separated from their natural parents and Bruce and Pamela were adopted by another family. As a result, the Court finds that neither Bruce nor Pamela Parrott is entitled to damages for the loss of Melva Dee Parrott's society and companionship.
F. Attorneys Fees
Although Plaintiff requests $100,000 in attorneys' fees, he has not attached documentation supporting this request on the basis that such documentation would be unnecessary should other damages exceed the $2,000,000 cap imposed on damages in this case. Because damages do not exceed $2,000,000, the Court orders the parties to provide additional briefing and documentation on this issue by the date of the distribution hearing.
G. Prejudgment Interest
Plaintiff seeks an award of prejudgment interest on damages. Generally, "in the absence of a statutory provision to the contrary, the award of prejudgment interest is a matter addressed to the discretion of the court." EEOC v. Wooster Brush Co. Employees Relief Ass'n, 727 F.2d 566, 579 (6th Cir. 1984). One purpose of prejudgment interest is "to compensate for the loss of use of money due as damages from the time the claim accrues until judgment is entered, thereby achieving full compensation for the injury those damages are intended to redress." West Virginia v. United States, 479 U.S. 305, 311 n. 2 (1987). Prejudgment interest may also be warranted when a defendant was misusing a plaintiff's funds, because such interest helps compensate for the time the defendant had control over funds that rightfully belonged to the plaintiff. Bricklayers' Pension Trust Fund v. Taiariol, 671 F.2d 988 (6th Cir. 1982).
Plaintiff argues that an award of prejudgment interest is warranted because: 1) the amount of damages is much smaller than what might have been obtained at trial, 2) the amount of damages is not enough to compensate Plaintiff for damages suffered between the date of death and the present, and 3) the insurance company in this case has had the use of Defendants' insurance premiums from the time of Melva Dee Parrott's death through the present. The Court finds all these arguments to be without merit.
First, the amount of damages that would have been obtained at trial is purely speculative. Although Plaintiff may have been received a verdict for damages greater than the amount decided by the Court, a jury may also have found that Plaintiff was not entitled to any damages. Plaintiff's second argument fails because the only damages at issue between the date of death and the present are damages for loss of society and companionship, and the Court has determined Plaintiff is not entitled to any compensation for loss of society and companionship. Finally, the Court finds that the insurance company's use of Defendants' insurance premiums does not warrant an award of prejudgment interest. The present case is distinguishable from Bricklayers because, unlike that case, Plaintiff did not have a pre-existing, contractual right to the amount awarded as damages. For the above reasons, the Court will not award prejudgment interest in this case.
H. Postjudgment Interest
Plaintiff also requests post-judgment interest under 28 U.S.C. § 1961 (a), which allows the Court to award interest "on any money judgment in a civil case recovered in a district court." The Court finds that Plaintiff is entitled to interest from the date of the current Judgment. See Omaha Indem. Ins. Co. v. Cardon Oil Co., 687 F. Supp. 502 (N.D. Cal. 1988) (finding that interest runs from the date of a money judgment).
III. Conclusion
Plaintiff, as Personal Representative of Decedent Melva Dee Parrott, will be awarded $100,000 in compensation for Melva Dee Parrott's pain and suffering, and $475 for funeral and burial expenses. The Court will also award Plaintiff $3,737.90 for costs upon receipt of documentation of these costs.
A hearing will be scheduled after the parties appoint a guardian ad litem for Bruce, Maggie, and Pamela Parrott and after Plaintiff, as Melva Dee Parrott's personal representative, has filed a motion for authority to distribute the proceeds. At this hearing, the Court will determine what amount, if any, will be awarded to Plaintiff for attorneys fees, based on supporting documentation to be submitted by Plaintiff before the hearing date.
An Order consistent with this Opinion shall be issued.