Delacroix v. Doncasters, Inc.

• Decision Date: 13 August 2013
• Docket Number: No. ED 97375.,ED 97375.
• Citation: 407 S.W.3d 13
• Parties: Susan DELACROIX, et al., Respondents/Cross–Appellants, v. DONCASTERS, INC., Appellant/Cross–Respondent.
• Court: Missouri Court of Appeals

407 S.W.3d 13

Susan DELACROIX, et al., Respondents/Cross–Appellants,

v.DONCASTERS, INC., Appellant/Cross–Respondent.

No. ED 97375.

Missouri Court of Appeals,

Eastern District,

En Banc.

May 7, 2013.

Application for Transfer to Supreme Court Denied June 18, 2013.

Application for Transfer Denied Aug. 13, 2013.

Edward L. Dowd, Jr., James F. Bennett, Terrence J. O'Toole, Selena E. Gillham, Saint Louis, MO, for Appellants.

Gary C. Robb, Anita Porte Robb, Kansas City, MO, for Respondents/Cross–Appellants, Delacrois, Cook, Bachand, Berridge, Walsh & Cowan.

Randy W. James, Lee's Summit, MO, for Respondent/Cross–Appellant, Cowan.

Gary R. Sarachan, Saint Louis, MO, for Respondent/Cross–Appellant, Walsh.

OPINION

GLENN A. NORTON, J.

Doncasters, Inc. (“Doncasters”) appeals the judgment entered upon jury verdicts awarding Plaintiff Susan Delacroix $4 million for the wrongful death of Victoria Delacroix, Plaintiff Barbara Berridge $4 million for the wrongful death of Melissa Berridge, Plaintiffs Mark Cook and Annette Bachand $4 million for the wrongful death of Robert Cook, Plaintiff Joan Walsh $4 million for the wrongful death of Robert Walsh, and Plaintiff James Cowan $4 million for the wrongful death of Scott Cowan.¹ Plaintiffs cross-appeal the trial court's grant of judgment notwithstanding the verdict in favor of Doncasters after the jury returned a verdict awarding Plaintiffs a collective $28 million in punitive damages, resulting in $5.6 million in punitive damages for each wrongful death claim.² We affirm in part and reverse and remand in part.

I. BACKGROUND

This appeal involves claims for wrongful death after the crash of a DHC–6 Twin Otter airplane (“Twin Otter”) owned by Adventure Aviation for use in skydiving expeditions operated by Quantum Leap.³ The Twin Otter was equipped with a model PT6A–20 engine manufactured by Pratt & Whitney Canada (“PWC”). PWC equipped the engine with compressor turbine blades (“CT-blades”) manufactured with a pack-aluminide coating and the base metal alloy Inconel–713 to prevent oxidation. Prior to Adventure Aviation's ownership of the Twin Otter, the engine's CT-blades were replaced with CT-blades manufactured by Doncasters. ⁴ The replacementCT-blades were manufactured with a different coating, SermaLoy J, and a different base metal alloy, Inconel–738, than the original coating and metal alloy used by PWC in the manufacture of the original CT-blades.

On July 29, 2006, Victoria Delacroix, Melissa Berridge, Robert Cook, Robert Walsh, and the pilot, Scott Cowan (collectively “Decedents”) boarded the Twin Otter for a skydiving expedition. Shortly after take-off, the right engine failed and the Twin Otter crashed. With the exception of Victoria Delacroix, who survived for three days following the accident, Decedents died upon impact. Plaintiffs, Decedents' parents, filed strict products liability claims against Doncasters for the wrongful death of Decedents, alleging that the replacement CT-blades manufactured by Doncasters ⁵ were defective and caused Decedents' deaths.⁶ Plaintiffs' claims were consolidated, and the cause proceeded to trial. As part of a discovery sanction against Doncasters, the trial court bifurcated the trial into two phases where the jury would consider compensatory liability and damages in the first phase and punitive liability and damages in the second phase.

During the first phase of the trial, Plaintiffs introduced evidence that the use of SermaLoy J and Inconel–738 in the manufacture of the CT-blades rendered the CT-blades defective, resulting in the Twin Otter's engine failure and the subsequent deaths of Decedents. Specifically, Plaintiffs' experts testified that the SermaLoy J coating was prone to cracking and the Inconel–738 base metal alloy had low oxidation resistance. The experts opined that the SermaLoy J coating cracked, providing a pathway for the oxidation of the Inconel–738 metal alloy. This process eventually led to the fracture of a single CT-blade and resulted in the engine failure and subsequent crash of the Twin Otter. Based on this evidence, the jury returned verdicts finding Doncasters liable for the deaths of Decedents and awarding Plaintiffs a collective $20 million in compensatory damages, $4 million for each wrongful death claim.

During the second phase of the trial, Plaintiffs introduced evidence that the CT-blades failed testing and Federal Aviation Administration certification requirements prior to their manufacture and sale. Based on this evidence, the Franklin County jury returned a verdict after the second phase of the trial, awarding Plaintiffs a collective $28 million in punitive damages.

The trial court entered judgment in accordance with the jury's compensatory and punitive damages verdicts and allocated the $28 million punitive damages verdict so that each wrongful death claim would recover $5.6 million in punitive damages. Doncasters filed motions for judgment notwithstanding the verdicts and alternative motions for remittitur, reduction of the judgment, and new trial. The trial court granted the motion for judgment notwithstanding the verdict as to the verdict awarding Plaintiffs punitive damages and denied all remaining motions. Doncasters appeals and Plaintiffs cross-appeal.

II. DISCUSSION

A. Doncasters' Appeal

Doncasters asserts nine points on appeal, claiming the trial court committed multiple errors during the first phase of the trial and in entering judgment in accordance with the jury's compensatory damages verdicts.

1. Compensatory Damages Instruction

In its first point on appeal, Doncasters claims the trial court erred in instructing the jury with the following compensatory damages instruction, modeled after Missouri Approved Instruction 5.01 (6th ed.2002): ⁷

If you find in favor of [Plaintiff], then you must award [P]laintiff such sum as you believe will fairly and justly compensate [P]laintiff for any damages you believe [P]laintiff and [D]ecedent sustained and [P]laintiff is reasonably certain to sustain in the future as a direct result of the fatal injury to [Decedent].

(emphasis added).⁸ The issue of whether a jury was properly instructed is a question of law that we review de novo. Fleshner v. Pepose Vision Institute, P.C., 304 S.W.3d 81, 90 (Mo. banc 2010). We will reverse only if the jury was misled, misdirected, or confused by the submitted jury instruction and prejudice resulted. Id. at 90–91.

Doncasters asserts that the compensatory damages instruction was erroneous because section 537.090 RSMo 2000⁹ and the Notes on Use to MAI 5.01 only allow a plaintiff to recover damages sustained by a decedent if the decedent sustained pain and suffering between the time of injury and the time of death. Because Decedents, with the exception of Victoria Delacroix, died immediately upon impact, Doncasters contends that, with the exception of Victoria Delacroix, it was erroneous to instruct the jury to compensate Plaintiffs for pain and suffering sustained by Decedents. We disagree.

Section 537.090 states that “the trier of the facts may award such damages as the deceased may have suffered between the time of injury and the time of death and for the recovery of which the deceased might have maintained an action had death not ensued.” “The quoted language [of section 537.090] fully covers any pain, suffering and other compensatory damages the deceased may have experienced prior to death.” Bennett v. Owens–Corning Fiberglas Corp., 896 S.W.2d 464, 466 (Mo. banc 1995) (emphasis added). The Notes on Use to MAI 5.01 advise the trial court to instruct the jury to compensate a plaintiff for any damages sustained by a decedent “where the evidence supports the submission of damages to decedent between the time of injury and time of death, i.e. pain and suffering.”

Here, substantial evidence was introduced to show that Decedents suffered from pre-impact terror prior to the crash of the Twin Otter. Dr. Carlos Diaz testified for Plaintiffs and described pre-impact terror as a set of sensations, feelings, and emotions a person experiences when that person feels that death is imminent. Dr. Diaz opined that Decedents experienced “horrific” pre-impact terror for fifty-two seconds prior to the crash. Doncasters contends that it was erroneous to allow the jury to consider these pre-impact damages because any pre-impact terror was sustained by Decedents prior to their injuries, which Doncasters contends occurred at the impact of the crash.

This Court has held that pre-impact terror experienced by a decedent prior to an impending aircraft crash is compensable in a wrongful death action under section 537.090. Blum v. Airport Terminal Services, Inc., 762 S.W.2d 67, 76 (Mo.App. E.D.1988). In reviewing whether the plaintiffs' verdict was grossly excessive, the Blum Court stated that a plaintiff can recover pain and suffering experienced by the decedent prior to his death. Id. at 75. In upholding the jury's verdict, the Court found that the decedent pilot “unquestionably sustained severe pain and suffering during his conscious moments” and allowed recovery of the decedent's “pre-impact awareness of the impending disaster.” Id. at 69, 76.

Moreover, section 537.090 is a remedial statute that must be applied to promote the object of the legislative enactment. O'Grady v. Brown, 654 S.W.2d 904, 907–08 (Mo. banc 1983). Remedial statutes are construed broadly and liberally to effect the statute's plain purpose. Hudson v. State Security Ins. Co., 555 S.W.2d 859, 861 (Mo.App.1977). Ensuring that tortfeasors pay for the consequences of their actions has been identified as one purpose of a wrongful death action filed under Chapter 537. Smith v. Brown & Williamson Tobacco Corp., 275 S.W.3d 748, 765 (Mo.App. W.D.2008). In line with this purpose, we decline to construe section 537.090 to disallow recovery of damages for pain and suffering that were determined to be the direct result of Doncasters' actions merely because that pain and suffering occurred...