The Southern District has two unpublished opinions which are diametrically opposed. Hirschfield v. San Diego commercial lawyer Unified Port District. (S.D.Cal. 2009) 2009 WL 3248101 follows Guyton, limiting its ruling to cases in which the death resulted from the unconstitutional violations, noting that “In cases such as this one, where the decedent died almost immediately following the alleged constitutional conduct, absent damages for pain and suffering or loss of life, the recoverable compensatory damages for the injury inflicted on the decedent would be minimal to non-existent.”
But six months later, in Cardinal v. Buchnoff (S.D.Cal. 2010) 2010 WL 1337489, another judge claimed Hirschfield was distinguished because while in Hirschfield the decedent died almost immediately after the constitu-tional violation (he was shot by police), whereas in Cardinal the deterrent goals of section 1983 could be met by an award to his estate for compensatory and potentially punitive damages. (A review of the Cardinal docket reveals the claim arose on January 17, 2005, and the plaintiff’s father was substituted as administrator of his estate on June 26, 2009. Since the complaint was not amended to state any claim for wrongful death, presumably the death was unconnected to the alleged unconstitutional use of excessive force by police).
Solutions
The best method of full valuation of damages in a death case, and the one that should be adopted by the California Legislature, is to amend the survival statute to include full recovery of a decedent’s pre-death pain and suffering. Companies producing products and other tortfeasors must be made to bear the full burden of their conduct. To do otherwise is to give the wrongdoer a windfall at the expense of the harmed. Intellectually enticing theories of law and efficiency aside, common notions of justice and equity demand that if any party is to bear the burden of error in calculation it should be the wrongdoer.
A strong argument can be made that existing U.S. Supreme Court precedent supports following the Guyton court’s ruling, at least where the death of the decedent was the result of the constitutional violation. In Carlson v. Green (1980) 446 U.S. 14, 23-25, the Court held that the vindication of federal constitutional rights in a Bivens action through a survivorship claim “should not depend upon where the violation occurred” (Id., at p. 24), and should be governed by uniform rules, at least where the decedent’s death was caused by the constitutional violation.