Kittitas County Record Verdict: $800,000

The $800,000 wrongful death verdict in Dosanjh v Bhatti raises several interesting practice issues. Plaintiff was killed on the job, yet evaded the workman's compensation bar. Defendant, killed in the same accident, was plaintiff's employee. The case was tried in Kittitas County where no prior reported verdict exceeded $100,000. Plaintiff was East Indian, and his marriage to the chief beneficiary of the estate was arranged. His economic losses had to be based on an earnings history averaging less than $10,000 (Canadian) per year.

Twenty Challenges for Cause

Kittitas County has a well-deserved reputation for an anti-plaintiff jury pool. The largest reported personal injury verdict was a 1992 verdict of $100,000 for the death of a long haul truck driver. So when Dean Brett entered Kittitas County Superior Court representing a long haul truck driver who had the ill fortune of being killed on Interstate 90 while traveling through Ellensburg, especially representing an East Indian widow who had been part of an arranged marriage, he knew he had jury selection problems.

The 39 potentials who showed up for jury duty quickly expressed their feelings that "money won't bring him back" and "both drivers died so why should one family take advantage and profit from the other family" and "life is tough, but the widow has to learn to survive on her own". Realizing that the panel was too conservative to re-educate, Brett allowed the more vocal jurors to express their ire at outlandish plaintiffs' verdicts, allowed other jurors to agree with the principles enunciated by the vocal conservatives, and then induced 20 of the 39 jurors to agree with the proposition that decedent's widow was doing something "immoral" by bringing a claim on behalf of herself and her children for the negligently inflicted death of her husband. Having thus prejudged the case, all 20 potentials were dismissed for cause, leaving the 19 who had expressed no such prejudicial belief, even though given a clear opportunity to do so, as a reduced and more receptive jury pool.

The Workman's Compensation Bar

The initial challenge had been to get a jury at all. Bhatti was employed by Dosanjh as a co-driver in his long haul trucking company. Bhatti negligently drove off the road, rolled the truck and killed both himself and Dosanjh. Defendants raised the bar of the British Columbia Worker's Compensation Act, claiming that it prevented Dosanjh from bringing suit against his co-worker. Trial court judge Michael Cooper agreed, granting summary judgment dismissal of all plaintiffs' claims. The Court of Appeals in Dosanjh v. Bhatti, 85 Wn. App. 769 (1997) reversed, holding that under British Columbia's Worker's Compensation Act, a worker killed by a co-worker in a foreign jurisdiction can elect to have the claim adjudicated under the law of the foreign jurisdiction in lieu of worker's compensation benefits. The Supreme Court refused to grant review, thus remanding the case for trial.

Mediation Fails

Plaintiffs' counsel Dean Brett of Brett & Coats and defense counsel Thomas J. Collins of Merrick, Hofstedt & Lindsey engaged the services of experienced mediator David Thorner of Yakima's Thorner, Gano & Kennedy. Unfortunately, CIGNA of Canada appeared at the mediation with a negotiator who was unwilling to offer more than $25,000 for this wrongful death claim. The low offer closed all further negotiations and no further offer was made prior to jury verdict.

Summary Judgment on Liability

It was now plaintiffs' turn for summary judgment. Plaintiffs moved for summary judgment on liability arguing that defendant had simply driven off the road in this one-vehicle accident. Defendants attempted to avoid summary judgment by pointing to the Washington State Patrol investigation showing that the truck had a leaky muffler under the cab which may have contributed to defendant's drowsiness and the ultimate crash. Defendants offered the testimony of King County Medical Examiner Donald Reay M.D. In a battle of experts, plaintiffs were able to demonstrate through the testimony of the Yakima County Medical Examiner Jeff Reynolds M.D. and forensic pathologist James A.J. Ferris M.D. that the carbon monoxide content of diesel fumes, unlike the carbon monoxide content of gasoline funds, is insufficient to cause drowsiness without first inducing physiological effects such as vomiting which would have warned a driver of impending drowsiness. Judge Cooper granted summary judgment on liability, reserving the issue of damages only for trial.

Loss of Consortium in an Arranged Marriage

Plaintiff sought the classic emotional losses for the decedent's widow. The difficulty was that the marriage had been arranged, in fact, Malkiat Dosanjh was sent to Vancouver to marry Amar Dosanjh by her parents, and she had not met her husband-to-be until she walked down the aisle. A straightforward confrontation of the issue was found to be the best approach. Numerous witnesses described the tradition of arranged marriages in Sikh culture, marriages which work out at a statistically better rate than America's so-called "love marriages." In a trial highlight, Malkiat Dosanjh then narrated a slide show in the darkened courtroom showing their growing family as through the years she fell in love with her husband. Her testimony, together with the testimony of numerous members of the Vancouver Sikh community, demonstrated the deep and abiding love between the parties. At the end of the trial, the judge and jury both expressed appreciation for their education about the rich tradition of Sikh arranged marriages.

Pain and Suffering in Anticipation of Death

Damages were also sought for pain and suffering in anticipation of death. When the truck overturned and slid down Interstate 90, it caught on fire. A following driver ran up to the truck and saw the driver inside, flailing and shouting, "Help me, help me." Despite her best efforts to open a door or break open a window, she was unable to rescue the driver, but testified that she could not see into the sleeper compartment of the truck to determine whether Dosanjh was conscious following the crash. Jurors were thus left with very little evidence regarding whether Dosanjh had survived the fire in a conscious state, but a lot of evidence that if he did survive, he met a horrible fate-- being trapped inside the burning sleeping compartment of an overturned truck. Plaintiffs filled the gap with the expert assistance of Duane MacInnis, PE, of MacInnis Engineers of Richmond, British Columbia who measured all inside and outside diameters of the sleeping compartment and compared his drawings with photographs of the crash vehicle, concluding that the degree and location of crash deformation provided a pocket of survivability for any passenger in the sleeping compartment. Based on this expert analysis, the jury awarded $75,000 for pain and suffering in anticipation of death.

Economic Loss

Finally, Plaintiff confronted a difficulty establishing the economic loss because the long-haul truck driver's income tax records indicated he had made $8,000-$12,000 per year (Canadian) in his best years. Plaintiff called economist Professor Michael Ruble of Central Washington University who projected a loss of earning capacity based on the average long-haul truck driver in British Columbia. Since Dosanjh was in a start-up phase of his business, if he succeeded, he would earn at least the average long-haul wage. If he did not, he would most likely close his business and obtain a job working for someone else as a long-haul truck driver. Professor Ruble calculated an economic loss, depending upon discount rate, of between $417,000 and $477,000. The jury awarded $500,000 in economic loss primarily because every East Indian witness, friend, family or neighbor, was asked a series of questions involving each of their relatives, where they worked, how long they had worked there, how much they made, so as to demonstrate that Dosanjh's family, friends and community was made up of hard-working, dedicated, economically successful individuals. In interviewing several jurors after the trial, they reacted as did the jurors in the two mock juries-- being reluctant to award non-economic damages, but generous with economic losses.

The verdict totaled $800,000: $75,000 each to the widow, the son and the daughter, $75,000 in pain and suffering in anticipation of death, and $500,000 in lost earning capacity. The verdict was thus several-fold greater than the largest personal injury or wrongful death verdict ever before recovered in Kittitas County.

Dosanjh v. Bhatti, Kittitas County Cause No. 94 2 00258 1, was tried by WSTLA Eagle Member Dean Brett of Bellingham's Brett & Coats.