Photo: Jason Doiy/ALM When a Pattern Jury Instruction Contrary to New York Law Arrogates the Law
PJI 2:320 Versus the Court of Appeals' Seminal Decision in 'McDougald v. Garber'
September 28, 2020 at 10:45 AM
13 minute read
All too often, perception becomes reality. Awards for pre-impact terror in New York are no exception. While pre-impact terror was historically an element of conscious pain and suffering in wrongful death actions, in 2012, the New York Pattern Jury Instructions (PJI) were amended to allow a plaintiff to recover damages for a decedent's pre-impact terror and independent damages for his or her conscious pain and suffering. Although the origins of this groundbreaking change are of uncertain provenance and its continued propagation the product of inertia, rather than rigorous legal analysis, one thing is clear: it is fundamentally improper under New York law to allow a jury to issue separate awards for pre-impact terror and conscious pain and suffering. Nevertheless, perception is reality and attorneys throughout New York take it as an article of faith that a plaintiff is entitled to recover separate awards for pre-impact terror and conscious pain and suffering. The urgent need to address this misconception assumes added importance as plaintiffs, with increasing frequency, turn to the PJI's construct to inflate the value of their claims.
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