There has been some ongoing litigation, not yet in front of the Board for a merits hearing, on the issue of whether, if someone's death is instantaneous or almost such, they can recover for permanent impairment. I am attaching for your reading pleasure today's incredible Order in the case of Estate of Herbert Mitchell v. Allen, IAB# 1322082 (2/20/12)(ORDER). There has been more than one Motion Hearing related to this case but the one that was decided on 2/20/12 certainly takes the cake (or shall I say the scalpel?) as the most interesting.
Brief facts: Claimant died on 6/4/08 when he was trapped inside a grain bin which ultimately buried him alive, with the official cause of death being listed as asphyxia due to "occlusion of the nose and mouth and immobilization of the chest and abdomen by external pressure."
A claim for posthumous permanent impairment under 19 Del. Code Section 2326 has been filed. The argument has been advanced, and I will submit credibly so, that claimant could not have sustained a permanency prior to death since the death was close to immediate. The Board denied a prior Motion to Dismiss, concluding that this is a factual question.
So what's so incredible about all of this?
In the wake of the Board's denial of the Motion to Dismiss, Claimant's estate exhumed the body for autopsy. Opposing counsel was not notified. When Claimant's counsel contacted defense counsel to request a continuance, there was no mention that an autopsy was occurring that very day. Thus there was no opportunity for the defense to conduct its own autopsy or have its expert participate in the autopsy proceedings in tandem with Claimant's expert. Claimant was laid to rest (once again!) and the defense was then informed that the fact of the first autopsy would prohibit any ability for a second autopsy to be conducted. It gives the concept of spoliation of evidence a whole new meaning......(and talk about keeping something critical on the down low....)
I am going to have to purchase a curio cabinet to store what is yet another "Chris Baum cherishable". Chief Hearing Officer Baum has issued another mini-treatise on this issue, borrowing from other jurisdictions and also examining Delaware law on spoliation of evidence. The Board found that the lack of disclosure as to the autopsy event was deliberate. They also ruled that the turn of events placed the defense at a marked disadvantage. However, there will not be a complete exclusion of all evidence from the autopsy-"The Board finds that it is appropriate to order that an adverse inference be applied so that all reasonable doubts concerning the autopsy evidence are to be resolved in Allen's favor by the fact-finder." (As an aside, I can't wait to see how this is put into application.....and what if there are no doubts?)
And I did not mention the piece de resistance of this whole situation-Following the autopsy claimant's counsel did more than just advance the claim for a lung impairment......he has filed an additional DACD seeking 100% impairment to the heart, liver, left kidney, right kidney, brain and "entire digestive system."
Irreverently yours,Cassandra Roberts
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