Subject: Parents settle over death of daughter, unborn grandchild

Pub: Missouri Lawyers Weekly

Author: Anne C. Vitale

Category: Justice,Transportation,Insurance

Sub-Category: Courts

Issue Date: 05/08/2006      Word Count: 2282

Parents settle over death of daughter, unborn grandchild

by Anne C. Vitale

Dolan Media Newswires


ST. LOUIS, MO -- The parents of a pregnant woman who died in a multivehicle accident have settled their Jackson County wrongful death case against three trucking companies. The settlement included for the death of their daughter and for the death of the fetus.

"We believe it may very well be the highest settlement in Missouri paid on a wrongful death claim for a fetus," said Michelle Boehm O'Neal of Joplin, who represented the family with co-counsel Edward J. Hershewe.

The fetal death claim carried a host of controversial legal issues. The grandparents claimed that they could recover for the loss of the fetus's companionship, comfort, counsel, training and services, and that a fetus is capable of feeling conscious pain and suffering in utero. The defendants argued that the grandparents' damages were too speculative to support a wrongful death claim and that a fetus cannot experience pain and suffering.

Allocation of fault among the defendants was also a hotly contested issue. "Although the defendants attempted to keep a united front for the defense, the various positions taken by them inevitably led to blaming each other," O'Neal said.

A Missouri Highway Patrol report found defendant Hogan Transports Inc. largely responsible for the accident, but Hogan vigorously disputed the report, said the company's attorney, Dan Ball of St. Louis. He noted that his client paid only part of the settlement.

Co-defendant Contract Freighters Inc. paid part of the settlement. "Since the accident, the Missouri Legislature has enacted long-needed tort reform that dramatically changed the law of joint and several liability in Missouri," said Anthony R. Behr of St. Louis, attorney for CFI.

"Under the old law, which applied to this settlement, a highly insured defendant with virtually no fault could go to trial and be found as little as 1 percent at fault," Behr explained. "Unfortunately, that defendant would be responsible to pay for the fault of a lesser-insured co-defendant found by the jury to be 99 percent at fault for the accident. Under tort reform, this result can no longer happen."

Behr noted that CFI cannot comment further on the legal issues or the court's rulings because a companion case regarding the death of the woman's husband is pending.

The parties reached the settlement in Ozeroglu v. Hogan Transports Inc., et al., on March 20.

Fatal accident

About 5:30 a.m. on May 18, 2002, Nural Ramirez and her husband, Armundo, were driving their 1998 Chrysler Cirrus west on Interstate 44, just east of Joplin. They had recently moved from Tulsa to the Chicago area to live with Armundo's family and were headed back to Tulsa for a surprise visit with her family. The couple had been married for about two years, and Ramirez, 22, was eight months pregnant with their first child.

It was dark, and drivers reported encountering varying degrees of fog throughout the early morning hours, O'Neal said. A tractor trailer operated by Hogan Transports was traveling in the right lane when he entered a fogbank and reportedly lost all visibility. Rather than pulling off the roadway, Hogan's driver decided to slow down and continue driving toward the next exit.

However, because he was driving blind, Hogan's driver could not tell that he was drifting left, straddling both lanes of the highway as he was braking in his fully-loaded tractor trailer, O'Neal said. By veering into the left lane, Hogan's driver cut off Ramirez, and she rear-ended the back of the Hogan trailer.

Although the impact with the Hogan trailer didn't cause any serious injuries to Ramirez or her unborn child, O'Neal said, it spun her vehicle so that it ended up facing the wrong direction on the highway. She was still in the driver's seat when a tractor trailer owned by 4-Stars entered the fogbank and crashed into the front and side of their vehicle.

The impact caused the car to spin, become disabled and stop on the highway, but Ramirez and her unborn child survived with no life-threatening injuries.

After the impact with 4-Stars, numerous other vehicles entered the scene. Some managed to avoid a collision, but one of the last tractor trailers to enter the scene rear-ended the Ramirez vehicle, ruptured the gas tank and pushed it 120 feet to its final resting place on the shoulder of the highway, where it burst into flames.

Although the identity of the tractor trailer that rear-ended the Ramirez vehicle and caused the fire was hotly contested, O'Neal said, witnesses and reconstruction experts agreed that it was either a CFI or an Estes Express Lines Inc. tractor trailer. She noted that a witness also reported hearing screams coming from Ramirez as she and her unborn child died in the fire.

Armundo had exited the vehicle after the first impact with the Hogan tractor-trailer, presumably in an attempt to help his pregnant wife, O'Neal said. He was then struck by a small pick-up truck before being run over by his own vehicle as it was being pushed by the tractor-trailer to its final resting place. An autopsy confirmed that Armundo died from massive head injuries, which were caused by contact with the undercarriage of the Ramirez vehicle.

In January 2003, Ramirez's parents, Hikmet and Ayfer Ozeroglu, filed suit individually for the death of their daughter and were appointed plaintiffs ad litem for purposes of pursuing a claim for the death of her unborn child. The wrongful death case for Armundo Ramirez is set for trial in Jackson County in April 2007.

Liability issues

The Ozeroglus contended that Hogan's driver failed to comply with the Federal Motor Carrier Safety Regulations when he decided to continue driving despite admitting he had zero viability, O'Neal said. The regulations require drivers to exercise "extreme caution" when operating their vehicles in adverse weather conditions such as fog. In particular, drivers are required to slow down in fog, and if it becomes sufficiently dangerous, they are required to cease operation of the commercial vehicle.

The Ozeroglus further contended that CFI and Estes also failed to comply with the regulations and that both were traveling too fast for conditions. The fog had progressed to the point that the defendants' drivers should have ceased operation and pulled off the roadway, the plaintiffs claimed. O'Neal argued that either one or both of them rear-ended the Ramirez vehicle and caused the fire.

In defense, O'Neal said, Hogan claimed that Ramirez rear-ended a phantom vehicle and caused the chain-reaction collision but that the Ramirez vehicle never made contact with the Hogan tractor trailer. She said that CFI and Estes blamed each other, or claimed that 4-Stars — which was not a party — was responsible for rear-ending the Ramirez vehicle and starting the fire.

Fetal death claim

All the defendants argued that the Ozeroglus could not state a legal claim for the death of the fetus because their status as Class III beneficiaries — which include grandparents, aunts and uncles — was too remote for purposes of Missouri's wrongful death statute, O'Neal said.

"The defendants argued that damages for loss of companionship, comfort and the like were too speculative to support a claim by Class III beneficiaries because, as plaintiffs ad litem, the plaintiffs were also bringing the cause of action on behalf of the paternal grandparents and all the aunts and uncles of the fetus," she said. "Under those circumstances, defendants contended that it was far too remote and speculative to opine what losses these distant relatives would have suffered due to the fetus's death."

But in pursuing a wrongful death claim for the fetus, O'Neal said, the plaintiffs argued that it was a proper cause of action under Missouri law since a "person" within the meaning of the wrongful death statute has been interpreted by the Missouri Supreme Court to include a fetus, regardless of viability. And where there are no surviving parents or siblings of the fetus, the only recourse is for a Class III beneficiary to request the appointment of a plaintiff ad litem to pursue the claim.

"Under these circumstances, the controversy is what damages are recoverable," she said. "The operative issue is whether such a remote class of relatives can recover for the loss of that fetus's companionship, comfort, counsel, training and services."

Adding more complexity, O'Neal said, is whether a fetus can experience conscious pain and suffering so as to allow recovery on a claim for pain and suffering damages. "Plaintiffs believed that such damages could be recovered and that evidence of the relationship between themselves and their daughter would have reasonably established the type of relationship they would have had with their grandchild," she said.

Attempting to leverage the controversy surrounding the issue of fetal consciousness, the defendants argued that the medical science was too speculative and vigorously disputed a fetus's capability to experience pain and suffering in utero.

They pointed out that a fetus has no memory and that it was impossible to know whether the Ramirez fetus was even "awake" at the time of the fire, O'Neal said. Thus, even if a fetus was capable of experiencing consciousness, there was no way to prove that the fetus in this case was conscious at the time of the fire.

In support of their argument, O'Neal said, the defendants retained an OB/GYN who testified that there was no consensus among the medical community regarding a fetus's ability to suffer pain. In addition, the defense relied on a federal court case where a constitutional challenge to an abortion law was at issue and the court refused to admit evidence of fetal pain and suffering on grounds that the science on the issue was too unreliable, she said.

To dispute the defendants' position, O'Neal said she retained a world-renowned clinical researcher and maternal-fetal specialist who opined that a fetus of eight months' gestation had the capacity and would have indeed endured conscious pain and suffering from the fire. By eight months' gestation, the expert explained, a fetus's central nervous system is intact and capable of providing the pathways to the brain that are necessary to experience pain. An OB/GYN and pediatric neurologist echoed those sentiments, she said.

A week before trial, the parties reached settlement.

Challenges addressed

"Pursuing a wrongful death claim for a fetus presented a number of challenges," O'Neal said. "Even though the fetus in our case was eight months' gestation, the subject of conscious pain and suffering inevitably led to a discussion of the absence of anesthesia used in abortions.

"Anytime the subject of abortion is raised, the issue can become a landmine in that it touches upon strongly rooted moral and ethical beliefs," she said. "It is especially sensitive in a case where the claim is founded on the fetus being treated as a 'person' capable of conscious pain and suffering."

As a result, she said, "we focused on the fact that by eight months' gestation, a fetus is nearly full-term and, once born, will respond just as any other newborn. In addition, testimony from physicians about the need and use of anesthesia for surgeries performed on fetuses while in utero was also helpful in humanizing this sensitive issue."

Because this accident involved 12 vehicles and numerous collisions, including many that did not involve the Ramirez vehicle, O'Neal said, accident reconstruction required numerous experts to present a complete picture of the sequence of events related to the accident and, specifically, what happened to Ramirez and her unborn child after each impact to their vehicle. "Isolating each impact to our driver's vehicle and the use of animated illustrations of the damage specific to each impact was vital to supporting our claim that our driver and her fetus did not suffer any fatal injuries prior to the fire," she said.

And since the only economic losses the plaintiffs claimed related to the funeral expenses for their daughter, O'Neal said, the biggest hurdle they faced going into settlement negotiations was the assumption that juries will not return large verdicts for the loss of an adult child. "In our case, however, we were able to embrace the human losses caused from losing plaintiffs' eldest child and their first grandchild," she said.

Finally, O'Neal stressed that the most valuable lesson learned in a case of this magnitude is to hire a competent trucking expert immediately upon taking the case. Then the expert "can guide you in what documents must be obtained through the course of discovery to not only assess the driver's actions, but the company's action and inaction as well."

Facts of the Case

Type of Action: Automobile accident/wrongful death

Type of Injuries: Death due to burns, asphyxiation and cardiac arrest

Court/Case Number/Date: Jackson County Circuit Court/03CV202036/March 20, 2006

Caption: Ozeroglu v. Hogan Transports Inc., et al.

Judge, Jury or ADR: Jury

Name of Judge: Charles E. Atwell

Verdict or Settlement: settlement

Allocation of Fault: None

Last Demand: N/A

Last Offer: N/A

Attorneys for Plaintiffs: Edward J. Hershewe, Michelle Boehm O'Neal, Alison Hershewe and Larry Nichols, The Hershewe Law Firm P.C., Joplin, Mo.

Insurance Carriers: Protective Insurance Co., Lexington Insurance Co., Zurich American Insurance Co., Continental Casualty Insurance Co., ACE American Insurance Co., American Guarantee & Liability Insurance Co.

Plaintiffs' Experts: Dr. Timothy G. Buchman, St. Louis (trauma/burns); William R. Bush, Birmingham, Ala. (fire expert); Dr. Waren E. Cohen, Cedar Hurst, N.Y. (pediatric neurology); Dr. John A. Daller, Boston (trauma surgeon); Nicholas M. Fisk, London, England (maternal/fetal specialist); Dr. Bruce L. Halbridge, Houston (obstetrics); Matt Meyerhoff, Phoenix (trucking regulations); Harry Smith, San Antonio (biomechanics); Richard Ziernicki, Englewood, Colo. (accident reconstruction)

Defendants' Experts: Dr. Joseph Bruner, Knoxville, Tenn. (obstetrics); Richard Carr, Orlando (trucking regulations); John Mitchell, St. Louis (accident reconstruction); Whitney Morgan, Birmingham, Ala. (trucking regulations); Skip Palenik, Chicago (paint expert); Jay Pfeiffer, Wichita, Kan. (accident reconstruction); Joe Romig, Denver (fire expert); Steve Russell, Nixa, Mo., (fire expert); Bruno Schmidt, Springfield, Mo. (accident reconstruction); Bill Sherman, Hopewell Junction, N.Y. (weather expert); Fred Willard, Ypsilanti, Mich. (paint expert)

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