Civil Practice and Procedure

John S. Sandberg, Esquire

Expert’s opinion that manufacturer had actual knowledge of defect sustains punitive award. Delacroix, et al. v. Doncasters, Inc., No. 97375 (Mo. App. E.D., May 7, 2013), Norton, J.

This was a hearing en banc after a division of the Eastern District affirmed the trial court’s decision to set aside the punitive damage awards in this wrongful death case involving the death of five people in the crash of a small plane. The key issue in the trial court, the division and the en banc court about the punitive damage award was whether the defendant manufacturer had “actual knowledge” that the particular engine blades were defective because of the material choice. Also, this being a claim for punitive damages the actual knowledge had to be shown by clear and convincing evidence. An expert on aircraft engine design testified on behalf of the plaintiffs that Doncaster had knowledge of certain unsuccessful tests that it had run and accordingly, without objection, the expert testified that the manufacturer “had actual knowledge” that the particular blades were defective. The defense did not object to this testimony on the basis that the testimony was speculative. The en banc court found that the experts’ testimony was sufficient to establish clear and convincing evidence of “actual knowledge.” The court did not clarify as to whether an objection of speculation to the expert testimony was or was not appropriate. Based on this finding of actual knowledge, the trial court’s decision was reinstated and the verdict with punitive damages was affirmed.

The opinion and dissent ran forty-five pages long and the opinion provides significant commentary about the importance of making objections at trial and then raising those same objections in the motion for new trial.

Failure to make award for pain and suffering leads to reversal. Meier, et al. v. Schrock, et al., No. 98728 (Mo. App. E.D., May 7, 2013), Hoff, J.
In this auto accident son was driving a car that crossed the center line and hit another vehicle and the passenger in that vehicle was severely injured. The passenger sued both father and son. After a bench trial the plaintiff was awarded an amount that covered his past and future medical bills but the trial judge expressly ruled that he was to receive nothing for his injuries, disability, disfigurement or pain and suffering. Father was found liable along with son. On appeal by both parties, the court reversed the portion of the judgment failing to award pain and suffering and also reversed the judgment against the father.

The son was not working for the father and thus it was inappropriate to claim that the minor son’s fault should also rest on the father.

As to the failure to award pain and suffering, courts have previously held that such awards will be set aside almost as a matter of course since the fact finder is “bound to award damages commensurate with the nature and extent of the plaintiff’s injuries.”