Judge Silber of the Supreme Court, New York County, granted our motion for summary judgment in a wrongful death action, on the ground that plaintiff’s decedent did not sustain conscious pain and suffering prior to her death.
In support, we submitted the report of an expert forensic pathologist, who concluded, after reviewing the medical records and testimony, that the decedent was rendered unconscious immediately from the time of her head injury to her death, that she did not have conscious pain or suffering or any level of awareness from the time of trauma to her death, and that her husband’s description of his wife grabbing his hand, staring in the eyes with eyeballs moving, tearing in the eyes and gasping were merely reflexes and not a meaningful response to stimuli which would indicate any conscious pain and suffering. In opposition to our motion, plaintiff did not submit any expert affidavit or any evidence that plaintiff was conscious or aware prior to death.
Justice Silber ruled that “as there is no evidence submitted which overcomes the motion and raises a triable issue of fact that the decedent had any level of consciousness following her fall, the motion is granted and the claims in the complaint are dismissed which seek damages for conscious pain and suffering.” She elaborated, citing case law, that “without legally sufficient proof of consciousness following an accident, a claim for conscious pain and suffering must be dismissed.” Further, “mere conjecture, surmise or speculation is insufficient to sustain a damages claim for conscious pain and suffering.”
The evidence that the decedent was rendered unconscious immediately upon impact was overwhelming, including, the forensic expert’s report, EMT’s testimony and report, the emergency room record, medical records and death certificate. Plaintiff did not submit any expert affidavit or testimony to refute the forensic expert's opinion. By dismissing conscious pain and suffering, Judge Silber eliminated the most serious claim, with the highest monetary value in this wrongful death action.