Opinion
Cause No. IP99-0039-C-D/F
July 24, 2000
PRETRIAL ORDER No 1.
Neither party submitted instructions on damages. The following rulings are issued to clarify certain damages issues. The parties are also ordered to submit their experts' reports.
In form and prosecution, this Cause is a wrongful death action under Indiana Code Ann. § 34-23-1-1 et seq. (Burns 1998) asserting liability under Indiana's products liability statute, I. C. § 34-20-1-1 et seq. and common law negligence. The plaintiff, Vanessa G. Chapman, has sued and litigated solely in her capacity as "Special Personal Representative of the Estate of Kyle E. Chapman, Jr., Deceased." She has not asserted an individual action of her own to recover damages for her husband's death. Although she has not specifically prayed for punitive damages, the Court takes this opportunity to clarify that the jury will not be instructed on punitive damages.
Federal precedent and persuasive decisions declare that punitive damages are not available in a wrongful death action. Huff v. White Motor Corp., 609 F.2d 286, 297-98 (7th Cir. 1979); Scully v. Armstrong, 646 F. Supp. 213, 216 (N.D.Ind. 1986); DeHoyos v. John Mohr Sons, 629 F. Supp. 69, 74-76 (N.D.Ind. 1984). See Mundell v. Beverly Enterprises-Indiana, Inc., 778 F. Supp. 459 (S.D.Ind. 1991). State decisions were uniformly the same, see, e.g., Rogers v. R. J. Reynolds Tobacco Co., 557 N.E.2d 1045, 1056-57 (Ind.Ct.App. 1990); Andis v. Hawkins, 489 N.E.2d 78, 81-82 (Ind.Ct.App. 1986), trans. denied, until recent decisions of the Court of Appeals held that wrongful death beneficiaries may recover punitive damages, Durham v. U-Haul International, 722 N.E.2d 355 (Ind.Ct.App. 2000), trans. granted (May 4, 2000); Forte v. Connerwood Healthcare, Inc., 702 N.E.2d 1108, 1111 (Ind.Ct.App. 1998), trans. granted opinion vacated, 714 N.E.2d 172 (table) (Ind. 1999). In each case, the Court of Appeals panel recognized that it was announcing a new rule that contradicted existing precedent. These latest decisions do not throw the issue into doubt, however, because the Indiana Supreme Court granted transfer in both cases, which, under Rule 11(B)(3) of the Indiana Rules of Appellate Procedure, had the effect of vacating the Court of Appeals' decisions and opinions, depriving them of precedential authority. When exercising diversity jurisdiction, federal courts aim to rule on matters of substantive law as the highest court of the state supplying the law would rule. Brownsburg Area Patrons Affecting Change v. Baldwin, 137 F.3d 503, 507 (7th Cir. 1998); Brunswick Leasing Corp. v. Wisconsin Central, Ltd., 136 F.3d 521, 527 (7th Cir. 1998). Because Indiana and federal precedent at this time is uniformly against the recovery of punitive damages in wrongful death actions, the plaintiff may not recover punitive damages in this Cause.
A more recent decision of the Court of Appeals also held that punitive damages could be recovered in a wrongful death action. Burton v. Estate of Davis, 730 N.E.2d 800, 807-08 (Ind.Ct.App. 2000). Transfer has not been granted or denied in that case as yet, but in light of the Indiana Supreme Court's grants of transfers in the prior cases and the fact that the time to petition for transfer has not expired, Ind.R.App.Proc. 11(B), we do not accord this decision controlling weight.
The plaintiff seeks damages to compensate for the loss of her husband's love, care, and affection. Complaint, ¶ 13. Although surviving spouses may recover for the loss of a deceased spouse's consortium through independent suits in their own capacities, Cahoon v. Cummings, 715 N.E.2d 1, 10 (Ind.Ct.App. 1999), which Mrs. Chapman has not done in this Cause, Indiana law also permits wrongful death beneficiaries to recover damages for emotional injuries — loss of love, care, and compassion. Robinson v. Wroblewski, 704 N.E.2d 467, 475 (Ind. 1998); Ed Wiersma Trucking Co. v. Pfaff, 678 N.E.2d 110 (Ind. 1997), affirming and adopting, 643 N.E.2d 909 (Ind.Ct.App. 1994); Dearborn Fabricating Engineering Corp. v. Wickham, 551 N.E.2d 1135, 1138 (Ind. 1990); FMC Corp. v. Brown, 551 N.E.2d 444, 449-51 (Ind. 1990); Johnson Controls, Inc. v. Forrester, 704 N.E.2d 1082, 1084 (Ind.Ct.App. 1999), trans. denied; Necessary v. Inter-State Towing, 697 N.E.2d 73, 76 (Ind.Ct.App. 1998), trans. denied. Federal courts interpreting Indiana's wrongful death statute have also so held. Estate of Sullivan v. United States, 777 F. Supp. 695, 700 (N.D.Ind. 1991); DeHoyos, 629 F. Supp. at 73. See Wanke v. Lynn's Tranportation Co., 836 F. Supp. 587 (N.D.Ind. 1993). The period of time for which a loss of consortium may be compensated has not been as well-established, but the Court concludes that an Indiana court today would permit a surviving spouse to recover for the loss of a deceased spouse's consortium from the date of the injury causing the deceased spouse's death to the date of the surviving spouse's death. See Bemenderfer v. Williams, 720 N.E.2d 400, 407-08 (Ind.Ct.App. 1999); Robinson, supra. Therefore, Mrs. Chapman may recover for the loss of her husband's love, care, and compassion from the date of his death to the expected date of her death.
While it might be argued that recovery for the loss of a deceased spouse's consortium should run no longer than the expected life of the marriage, and therefore to the expected lifetime of the surviving spouse or the expected lifetime of the deceased spouse, whichever occurs first, the Indiana decisions prescribe only the death of the surviving spouse. The Court notes that, while a mortality table and proposed instruction on Mr. Chapman's expected life were submitted, none were submitted for Mrs. Chapman. The parties should submit the same as soon as practicable.
In order for the Court to better prepare for trial and to determine the relevancy and quality of expected testimony and evidence, the parties are ordered to file their experts' Rule 26(a)(2) reports no later than Wednesday, July 26, 2000 and to fax courtesy copies of the same to this magistrate judge's chambers as soon as possible but no later than Tuesday, July 25, 2000 at 12:00 noon.
SO ORDERED this 24th day of July, 2000.