One Night in November, Part 2: How Dead was Pedestrian?

Yes, that question is a staple of wrongful death cases.  NRS 41.085(4) allows heirs to recover for the “pain, suffering, and disfigurement of the decedent.”  This phrase leads to a lot of depositions because there is often a dispute as to if, or how long, the decedent survived.  In my case, the dispute resolved itself through a long series of depositions.

First, based upon the accident investigation report, we thought there were no witnesses to this event.  Nevertheless, I subpoenaed NHP for its file.  Buried deep in the CAD printout was a single line about a witness calling in after the event.  The witness was not mentioned anywhere else.  We hunted him down and deposed him.  This deposition became important for liability purposes later on, but as to damages, the witness testified he never saw Pedestrian move after the collision.

Second, we deposed the key emergency responders who came to the scene.  Normally there would be a long discussion of Glasgow Coma Scores, pupil responses, capillary refill, and other factors.  This conversation never occurred in this case because the paramedic was miffed at CCFD for their initial response.  Why?  The pedestrian suffered an internal decapitation.  This means that the head was literally severed from the spine, but from the outside everything looked fine.  As a coroner later testified, that injury is fatal, was caused by the impact with the vehicle, and is like turning off a light.  The paramedic was miffed because he argued CCFD should have detected that as part of their initial patient evaluation.  If they had, they wouldn’t have started medical care and would not have transferred care to the ambulance.  Upon transfer, the paramedic immediately discovered the internal decapitation, but, because Pedestrian had been transferred to him,  the ambulance and paramedic were now part of a potential crime scene and were stuck for several hours until the coroner could arrive to retrieve the body.  CCFD got to go home long before the paramedic, a source of acrimony later.

All of this testimony led to a later stipulation dismissing any claim for pain, suffering, or disfigurement.  That stipulation was valuable to my clients because that type of claim is often a key point of contention in a wrongful death case.