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New Maryland Appellate Opinion on Survival Actions

The Maryland Court of Special Appeals found Monday that the trial court erred in excluding the estate of a five year old drowning victim from presenting a survival action for conscious pain and suffering of the child while drowning. You can find the opinion here. I first blogged about this case two years ago after an Anne Arundel County jury awarded $4 million in a wrongful death action brought by his parents. The survival claim was dismissed by the trial court for lack of evidence that the boy suffered before he died.

The lawyers in the case on both sides did exactly what lawyers should do: make the best arguments for their clients. I would do the same. But it is haunting trying to explain this to your client in a wrongful death/survival action case. “No one knows for sure whether your child (or parent or sibling) suffered awfully before he/she died. But the likelihood is high because (fill in your own awful means of death). So we are going to argue that he/she endured unbelievable suffering that neither of us can ever imagine.” You don’t say it quite like that. But it is truly awful and it makes you want to get another job.

After I frame the issue, the client almost invariably wants to win the argument. This is completely understandable. But the victim’s family finds themselves in the position of rooting that someone who has never met the person they love finds there was horrible suffering before the person’s death. But they hope and pray that it is not really true. It is a grotesque paradox.

Defense lawyers have it worse on some level. I don’t know who the lawyer was in this case but what are the chances that lawyer went home to their spouse at the end of the day proud of their victory in the trial court? “Honey, I won this argument today where I argued this little boy drowned and didn’t suffer because there is no proof the child suffered because he died – I’m so proud of my victory.” Do you think that lawyer does not know that child suffered? Don’t you have to sadly admit this as you explain the story of your “victory”? Again, I’d make the argument if I was the defense lawyer. Then I would go home and shower.


Anyway, I’ve sort of lost sight of the case we are talking about. The court found what seems to me to be manifest: you do not need direct evidence of pain and suffering and especially in a case like this where an expert makes a reasonable conclusion based on the evidence. It is a little more complicated than that, of course, which is why you should read the opinion if you are a lawyer handling death cases in Maryland.

I’m glad the plaintiff won this argument. But it is absolutely possible that the child in this case did not suffer. So, again paradoxically, I pray for “injustice” in this case and that this boy really did not suffer. Only God really knows.

The plaintiffs’ lawyers also make the perfunctory argument that the cap on non-economic damages in Maryland should not apply. The court gave about 30 seconds to this argument.

I had a death case last year in Baltimore County where we successful argued that there is pain and suffering sufficient to maintain a survival action when you apply your breaks just before your death because there is pre-impact fright.

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