Case Information
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON AT TACOMA ROY BLANCHARD, individually, as CASE NO. C23-5460 BHS guardian for a minor, C.B., and as Personal Representative of the ESTATE ORDER OF HEATHER A. BLANCHARD, and IAN BLANCHARD, individually,
Plaintiff, v. UNITED STATES OF AMERICA, and JANE and JOHN DOES 1-10, in their respective individual capacities,
Defendant.
This matter is before the Court on Defendant United States’s motion for partial summary judgment and to exclude testimonies of the Blanchards’ experts, Anthony Choppa M. ED. and Marsha Hedrick Ph.D. Dkt. 41. Roy Blanchard’s Negligent Infliction of Emotional Distress claim is dismissed because he cannot meet the threshold requirement to show that he unwittingly encountered his wife Heather’s body given his concession that he requested to view her in the ICU. Because the wrongful death statute does not allow the Blanchards to recover for Roy’s lost wages or for grief and mental anguish, the claim to recover Roy’s lost wages is dismissed and Mr. Choppa’s expert testimony aimed at calculating damages for Roy’s lost wages and Dr. Hedrick’s opinions on the Blanchards’ grief and mental anguish is barred.
I.
BACKGROUND This case arises out of the death of Heather [1] Blanchard at Madigan Army Medical Center (MAMC) after surgery on January 4, 2022. The details of the surgery and death are described in the Court’s previous order, Dkt. 30.
Heather’s husband Roy Blanchard was present in the hospital when Heather first finished surgery. Dkt. 46-1, Roy Dep. at 93–94. He was told that Heather had been moved to the ICU and that she had a bleed. Dr. Scribner came into the ICU waiting room told him that they had had to stop the initial procedure, move Heather to the ICU, and that they were “going to wake her up in about 30 minutes and you'll be able to go back with her.” Id .
A short time after Roy heard medical staff call a code blue and saw “crash cart, and staff and doctors running” into the ICU. Dkt. 46-1 at 94–95. Dr. Scribner again came out of the ICU to tell Roy that Heather “appeared to have additional bleeding, that she was receiving additional blood and that the general surgery and vascular surgery were there.” Dkt. 46-2 Scribner Dep. at 34–35 . Dr. Scribner returned later with a hospital Chaplin and told Roy that Heather had died. Id . Roy immediately asked to see Heather. Dkt. 46-1 at 32. Hospital staff took steps to clean Heather and the room before Roy entered. Dr. Scribner asserts that “we tried to cover her and clean her as much as possible before he went in there, so I believe it would have been her hands and arms and her face [that were uncovered].” Dkt. 46-2 at 40. The “crash nurse” in the intensive care unit, Michelle Barr, testified that “we had…cleaned her body up and made her as presentable as – as we could” but acknowledged there was “lot of blood” in the room and on Heather. Dkt. 46-3, Barr Dep, at 6:23-7:7; 24:1-25. Roy testified to his experience seeing Heather’s body:
It's heartbreaking. It was traumatic. I've, from, from being a cop, the military, I've seen so much trauma and, and shootings and stabbings and rapes and just god-awful stuff. Nothing prepared, nothing prepared me for what I saw, and it was just my wife's body just laying there. You know, I've, I've, from my time as a cop, I, I've been to plenty of ICUs and emergency rooms and the, the smells and the, the sites. You know, you could tell that she had been in surgery. You could tell that, you know, from the, from the room a lot had gone on. You know, there was a, you know, like a trash receptacle where, you know, linens and towels and instruments, not instruments in the, in the receptacle, but you could, you could tell that, you know, there was wrappers and stuff on the floor. It, it wasn't completely sanitized and I didn't expect it to be. You know, her body was still warm. There was a small tear in the left corner of her eye. I saw that, that there was no life and she was gone. … I said I was so sorry...there was a sheet or a blanket typical of, of what you would see, but you could still, you know, there were, there was trace spots of blood, stuff like that. They, they, they cleaned it up as best as they could, but you know, I'm not, I'm not naive as to what goes on in an ICU or an or, or an emergency room. I've seen it plenty of times, just not my wife
Dkt. 46-1 at 98–99. Roy asserts his struggle with grief following Heather’s death has impacted his career and earning capacity. At the time of Heather’s death, Roy worked at J.P. Morgan in a private client banker position. Dkt. 46-1 at 36–39. He took a three month leave of absence for bereavement, but struggled to succeed upon returning. Id . He ultimately left J.P. Morgan in November 2022. Id . at 39–42. Roy then worked part time, a seasonal job at Crystal Mountain as a ticket checker and lift operator. Id . at 49–51. He then enrolled in barber school and became a licensed barber at Buzzerd’s Barber Shop in Tacoma where he still works today. Id . at 46–51.
Roy sued the United States and Jane and John Does 1–10 on behalf of himself, Heather’s estate, and their children, C.B. and Ian Blanchard. Dkt. 31. He alleges one claim of “Negligence in the Care and Treatment of Plaintiff” under RCW 7.70.040. Id . at 12. The government concedes liability for medical negligence. Dkt. 35. Roy amended his complaint to add a claim for negligent infliction of emotional distress (NIED). Dkt. 31 at 12. He asserts that the government negligently inflicted emotional distress “when they told [him] that his wife had suffered complications during the surgery, told him that she died as a result of the surgery, and allowed him to see Ms. Blanchard while she was covered in blood.” Id . The issues remaining for trial are the NIED claim and the nature and extent of plaintiffs’ damages arising out of both claims.
The government moves for partial summary judgment and to exclude certain experts. Dkt. 41. It argues that Roy’s NIED claim should be dismissed as a matter of law because he fails to show negligent conduct and cannot show that he “unwittingly” entered the room to view Heather’s body because he requested to see her. It also seeks summary judgment on Roy’s claim for lost earnings. It argues because Roy cannot support a claim for NIED, his recovery is limited to the damages designated by statute for his wrongful death claim, which does not include lost earnings or allow recovery for mental anguish. Id . at 9. If Roy’s claim for lost earnings is dismissed, it argues Dr. Choppa’s opinion about Roy’s ability to work and earn money should be excluded as it would be irrelevant. Id . at 14. Similarly, it argues Dr. Hedrick’s opinion that the Blanchard family suffered mental anguish should also be excluded because the wrongful death statute does not permit beneficiaries to recover for grief-related damage. Id . at 15.
Roy responds that his NIED claim survives because there is a genuine issue of material fact as to whether the conduct giving rise to the negligent infliction of emotional distress in this case constitutes “health care” and as to “the cause and nature” of his emotional distress. Id . at 25–16. Roy argues that his lost earnings claim and supporting expert testimony is viable because RCW 4.20.010 allows him to recover all damages that were proximately caused by the government’s negligence.
The issues are addressed in turn.
II.
DISCUSSION A. Legal standard for summary judgment Summary judgment is proper if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is “no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In determining whether an issue of fact exists, the Court must view all evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party’s favor. Anderson v. Liberty Lobby, Inc ., 477 U.S. 242, 248–50 (1986); Bagdadi v. Nazar , 84 F.3d 1194, 1197 (9th Cir. 1996). A genuine issue of material fact exists where there is sufficient evidence for a reasonable factfinder to find for the nonmoving party. Anderson , 477 U.S. at 248. The inquiry is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one- sided that one party must prevail as a matter of law.” Id . at 251–52.
The moving party bears the initial burden of showing that there is no evidence that supports an element essential to the nonmovant’s claim. Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). Once the movant has met this burden, the nonmoving party then must show that there is a genuine issue for trial. Anderson , 477 U.S. at 250. If the nonmoving party fails to establish the existence of a genuine issue of material fact, “the moving party is entitled to judgment as a matter of law.” Celotex , 477 U.S. at 323–24. There is no requirement that the moving party negate elements of the non-movant’s case. Lujan v. Nat’l Wildlife Fed’n , 497 U.S. 871, 885 (1990). Once the moving party has met its burden, the non-movant must then produce concrete evidence, without merely relying on allegations in the pleadings, that there remain genuine factual issues. Anderson , 477 U.S. at 248. B. NIED claim fails as a matter of law
Roy articulates three grounds for his NIED claim: (1) when hospital staff and doctors told him that his wife had suffered complications during the surgery, (2) when they told him that she died as a result of the surgery, and (3) when they allowed him to see Heather “while she was covered in blood.” Dkt. 31 at 13. The government seeks to dismiss his NIED claim because it argues that he can point to no material fact that would establish non-medical negligent conduct by any MAMC employee apart from the medical treatment provided to Heather, and his claim is therefore governed exclusively by RCW § 7.70. Dkt. 41 at 8. Furthermore, it argues Roy cannot meet the threshold requirement for a bystander NIED claim because he cannot show that he “unwittingly” encountered his wife’s body when he concedes requested to see her immediately after learning she had died from bleeding complications. Id . at 9.
Roy responds that there is a dispute of material fact as to whether updating him about his wife’s status arises out of health care under § 7.70 and that his “bystander” NIED claim cannot be dismissed on summary judgment because there is a dispute of material fact as to “whether provider conduct denied him the opportunity to be with his wife.” Dkt. 44 at 15 (citing Reed v. ANM Health Care, 148 Wn. App. 264, 272-73 (2008) (genuine factual dispute regarding whether plaintiff’s NIED injuries resulted from health care where doctor misinformed plaintiff about medical status of her partner and prevented plaintiff from being in the room in the final moments before her partner’s death)). He asserts that his “emotional distress stems from the traumatic circumstances of his wife’s death and the way he was notified and encountered her body, not from any act or omission in her medical care” and that this claim should therefore go to the jury. Dkt. 44 at 13.
Even if the Court were to credit Roy’s position, it does not defeat summary judgment here because he fails to demonstrate that any MAMC employee conduct was negligent, inappropriate, or a breach of any duty of care owed to Roy. Unlike the case he relies on, Reed v. ANM Health Care , Roy does not assert that staff lied to him or that they failed to let him see his wife in a timely manner. He instead argues that when Dr. Scribner informed him that Heather had a bleed but that Roy could see her in 30 minutes, it gave Roy “the impression that Heather was stable and that he would soon be reunited with her but that was not true.” Id . Roy does not allege that Scribner intentionally or negligently misled him, nor does he explain how truthfully keeping Roy informed of Heather’s progress breached any duty of care to Roy. Similarly, Roy’s assertion that “the way he was notified” about his wife’s death constitutes NIED fails to identify any breach of duty to him. Roy asserts that Dr. Scribner was “tearful and polite” when she informed Roy of Heather’s death, and that he did so in the presence of a Chaplin. Id . He does not articulate any breach of duty, but instead emphasizes that “the sudden and traumatic notification of his wife’s death” gave rise to his PTSD. Id . The traumatic effect of the events that Roy experienced does not render the hospital staff’s actions negligent. Roy offers no dispute of material fact that could substantiate his NIED claim based on the communications regarding Heather’s health regardless of whether those communications arise out of health care under § 7.70. Consequently, the only remaining allegation that could serve as the basis for his NIED claim is that he was permitted to see his wife after she died “while she was covered in blood.” Dkt. 31 at ¶ 5.2.
Washington law allows family members to recover “for emotional distress caused by observing an injured relative at the scene of an accident after its occurrence and before there is substantial change in the relative’s condition or location.” Hegel v. McMahon , 136 Wn.2d 122, 132 (1998). This is referred to as a “bystander” claim. A bystander plaintiff “must arrive on the scene unwittingly in order to maintain a cause of action for [NIED].” Colbert v. Moomba Sports, Inc. , 163 Wn.2d 43, 59 (2008) (citation omitted). Plaintiffs cannot recover for “the emotional distress one experiences at the scene after already learning of the accident before coming to the scene.” Id. at 60.
Even construing the facts and all reasonable inferences in his favor, Roy cannot show that he unwittingly encountered Heather’s body. Upon Dr. Scriber informing him of her death, he immediately requested to go and see her in the ICU. Before making that request, he knew that she had died from bleeding complications and he knew that a “CODE blue” had been called in an effort to save her. He concedes that he was mentally prepared to see her and the room in an unclean state: “it wasn’t completely sanitized and I didn’t expect it to be .” Dkt. 46-1 at 98–100. He acknowledges he was “not naive as to what goes on in an ICU [or] an emergency room” because he had “seen it plenty of times.” Id . His concession that hospital staff had “cleaned it up as best as they could” additionally undermines that the staff acted negligently and runs counter to the bystander NIED requirement that he observe Heather before there was any “substantial change in the relative’s condition or location.” Colbert , 163 Wn.2d at 62. Roy’s argument that there is a dispute of material fact as to “whether provider conduct denied him the opportunity to be with his wife” cannot be squared with the record. Dkt. 44 at 15. He does not explain what facts or inferences could support this assertion, nor reconcile it with his concession that Dr. Scribner promptly granted his request to see Heather. Consequently, he falls short of establishing a dispute of material fact. Lujan , 497 U.S. at 888–89 (missing facts will not be presumed). That the facts fail here to meet the stringent requirement requirements of an NIED claim is in no way a measure of the gravity of the emotional distress that Roy undoubtably experienced the day his wife died. Because there is no dispute of material fact that can salvage his NIED claim, the government’s motion for summary judgment dismissing that claim as a matter of law is GRANTED . C. Roy’s claim for lost earnings
The parties agree that the Blanchards are entitled to the economic and noneconomic damages caused by Heather’s wrongful death. See RCW § 4.20.010. Roy claims that the statute allows him to recover his own personal lost wages stemming from his mental health struggles after Heather’s death that led to his career changes. Dkt. 44 at 16. The government argues that Roy cannot collect for his own lost wages, but rather is limited to Heather’s economic damages (lost wages and household services), and noneconomic damages for loss of consortium and Heather’s pre-death pain and suffering. Dkt. 41 at 11. It argues that because Roy “cannot recover damages for his grief and anguish, he cannot recover lost wages that he alleges stem from this grief and anguish.” Id . at 12. [2] The parties’ arguments focus on the significance of 2019 amendments to RCW 4.20.010. The current and former version of the relevant portion of the statute with the 2019 additions bolded read as follows: Former version Current version (2019 additions in bold) When the death of a person is caused by (1) When the death of a person is the wrongful act, neglect, or default of caused by the wrongful act, neglect, or another his or her personal representative default of another person, his or her may maintain an action for damages personal representative may maintain an against the person causing the death; and action against the person causing the death although the death shall have been caused for the economic and noneconomic under such circumstances as amount, in damages sustained by the beneficiaries law, to a felony. listed in RCW 4.20.020 as a result of the
decedent's death, in such amounts as determined by a trier of fact to be just under all the circumstances of the case .
(Effective July 22, 2011 to July 27, 2019) The government argues that as it pertains to damages, the 2019 addition that plaintiffs can recover economic and noneconomic damages “merely clarified what was absent from the prior version of Wash. Rev. Code § 4.20.010, but under case law interpreting the statute, was already recoverable.” Id . It points to cases and pattern jury instructions supporting that plaintiffs have long been able to recover the decedent’s economic damages, but have never been allowed to recover for their own mental anguish or their own lost wages. Dkt. 41 at 11 (citing Garcia v. Strong Trucking , Inc., 169 Wash. App. 1016, 2012 WL 2877652 at *2 (2012) (unreported) (“the Washington State Supreme Court expressly construed the wrongful death statute as not allowing for recovery for grief.”).
It asserts that the only substantive “new” change from the 2019 amendment is that it removed the restrictions that parents and siblings could only sue for wrongful death in Washington if they were financially dependent on the decedent and Washington residents. In support, it points to the House Bill Report summarizing the 2019 amendments as follows:
Beneficiaries. The dependence and residency requirements for secondary beneficiaries (parents and siblings) are removed . A parent or sibling may be a beneficiary of the action if there is no spouse, domestic partner, or child, without having to show dependence on the deceased and residence in the United States at the time of the person’s death. Damages. A specific statement is added that both economic and noneconomic damages are recoverable against the person causing the death in such amounts as the trier of fact determines to be just under the circumstances of the case.
House Bill Report, H.B. 1135, 66th Leg., 2019 Reg. Sess., at 2 (Wash. 2019) (emphasis added).
The government emphasizes that even after the wrongful death statute was amended in 2019, the Washington Pattern Jury Instruction (WPI) that clarify the available categories of damages for the statute remained the same. The WPI, Measure of Damages—Wrongful Death—Action for Benefit of Spouse , provides that juries should consider economic damages and noneconomic damages, and defines the same as follows:
(1) Economic Damages: (a) You should consider as past economic damages any benefit of value, including money, goods, and services that [Roy] would have received from [Heather] up to the present time if [Heather] had lived. (b) You should [also] consider as future economic damages what benefits of value, including money, goods, and services [Heather] would have contributed to [Roy] in the future had [Heather] lived. (2) Noneconomic Damages: You should also consider what [Heather] reasonably would have been expected to contribute to [Roy] in the way of [marital] consortium… … In making your determinations, you should take into account [Heather's] age, health, life expectancy, occupation, and habits [of industry, responsibility and thrift] . You should also take into account [Heather’s] earning capacity, including [Heather’s] actual earnings prior to death and the earnings that reasonably would have been expected to be earned by [Heather] in the future. In determining the amount that [Heather] reasonably would have been expected to contribute in the future to [Roy] you should also take into account the amount you find [Heather] customarily contributed to [Roy].
6 Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 31.02.01 (7th ed.) (formatting omitted) (emphasis and party names added). The government argues that the WPI makes plain that plaintiffs have long been able to collect economic and noneconomic losses, but always for money and “consortium” that the decedent would have contributed.
In contrast, the government argues the pattern instruction on the measure of damages in a wrongful death action brought by a parent for the death of a child were modified after 2019 amendments to that statute. Dkt. 49 at 10 (citing 6 Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 31.06.01 (7th ed.) (“This instruction has been modified for this edition” … because “RCW 4.24.010 was amended effective July 28, 2019…”)). It emphasizes that in the comments section for the wrongful death of a child pattern instruction, the authors are explicit that mental anguish is not recoverable under the wrongful death statute at issue here, RCW 4.20.010:
There are several somewhat related statutes. The potentially recoverable noneconomic damages differ depending upon whether the claims for damages arising out of the death of a child are pursued under the wrongful death statute, RCW 4.20.010, or the child injury or death statute, RCW 4.24.010. For instance, the recovery of the parents' personal grief, mental anguish, and suffering as a result of the child's death is not recoverable under RCW 4.20.010 et seq . Wash. Pattern Jury Instr. Civ. WPI 31.06.01 (7th ed.) (emphasis added). The Government
argues if the Washington legislature wished to allow recovery for damages stemming from grief, it could have made amendments to mirror the language for the statute for the parents of deceased children, but it chose not to.
The Blanchards respond that 2019 amendments to RCW §§ 4.20.010 and 4.20.020 “rendered many earlier cases limiting evidence or damages obsolete.” Dkt. 44 at 17. They argue that the “statute’s remedial and retroactive nature requires a broad, liberal interpretation to fully compensate beneficiaries.” Id . at 20. In support, they point to how the Washington Supreme Court interpreted amendments to the statute for recovery from the wrongful death of a child in the 1971 case Wilson v. Lund , 80 Wn.2d 91 (1971). There the court held that language added to the statute in 1967 allowing recovery for “loss of love…and…injury to or destruction of the parent-child relationship” required it to allow compensation for grief, mental anguish, and suffering despite “strongly- entrenched policy against recognition of damages for mental anguish” in wrongful death of a child cases. Id . at 94, 96. The Blanchards argue that the 2019 amendments to RCW 4.24.010 command the same result.
The Blanchards argue further that “whether the loss of Heather’s companionship and support proximately caused Roy’s loss of earning capacity is a factual question for the jury.” Dkt. 44 at 20. They rely on Pacheco v. United, 200 Wn.2d 171 (2022). The plaintiff mother there was mistakenly given a flu shot instead of a birth control shot and she subsequently became pregnant. The baby was born with brain condition that caused permanent disabilities. The parents sued pursuant to Federal Tort Claims Act (FTCA) [3]
1 for negligent reproductive healthcare. The district court awarded damages to the parents in part for mental anguish and emotional stress. The Ninth Circuit certified the following question [4] to the Washington Supreme Court: “Under claims for negligent reproductive health care, does Washington law allow extraordinary damages for costs associated with raising a child with birth defects when defendant(s) negligently provided contraceptive care even though plaintiff(s) did not seek contraceptives to prevent conceiving a child later born with birth defects?” Id . at 180. The Court answered “yes,” and affirmed the award. Its reasoning included that the factual determination of whether the harm was foreseeable is a question for the jury: “Therefore, the foreseeability of [the baby’s brain condition] is not a question of law as to ‘whether duty exists.’ Instead, it is a question of fact, which asks ‘whether the kind of harm which actually occurred should have been foreseen’ based on the evidence presented.” Id. at 190 (internal citations omitted). The Blanchards argue that Roy’s career change stemming from his grief is a similarly foreseeable consequences of Heather’s death and is therefore a question of fact that should go to the jury.
The Blanchards assert that “economic damages” and “noneconomic damages” in RCW 4.20.010 was not further defined in the amendments because it was already defined by RCW 4.56.250(1)(a)–(b). This definitions section, which the government correctly observes was repealed in 2023, defines the damages as follows:
(a) “Economic damages” means objectively verifiable monetary losses, including medical expenses, loss of earnings, burial costs, loss of use of property, cost of replacement or repair, cost of obtaining substitute domestic services, loss of employment, and loss of business or employment opportunities. (b) “Noneconomic damages” means subjective, nonmonetary losses, including, but not limited to pain, suffering, inconvenience, mental anguish, disability or disfigurement incurred by the injured party, emotional distress, loss of society and companionship, loss of consortium, injury to reputation and humiliation, and destruction of the parent-child relationship.
Dkt. 44 at 18. The Court determines that the wrongful death statute, RCW 4.20.020, does not allow recovery for Roy’s lost wages or mental anguish. The Blanchards are correct that the 2019 amendments are retroactive and that the Court must therefore construe them liberally. Even so, the amendments do not support upending decades of precedent precluding recovery for mental anguish under RCW 4.20.020. See State v. Ervin , 169 Wn.2d 815, 825 (2010) (en banc) (presume that the legislature is “familiar with judicial interpretations of statutes and, absent an indication it intended to overrule a particular interpretation, amendments are presumed to be consistent with previous judicial decisions.”) (citation omitted). As the Washington Supreme Court reasoned in Wilson v. Lund , we must assume the legislature “was aware of [Washington’s] strongly-entrenched policy against recognition of damages for mental anguish” in previous interpretation of RCW 4.20.010. The Court can safely assume that the legislature was also aware that in contrast to wrongful death actions under RCW 4.20.010, plaintiffs are able to recover for mental anguish in wrongful death of a child actions under RCW 4.24.010. The House Report summarizing the 2019 amendments to both statutes is explicit that mental anguish is recoverable under the wrongful death of a child act:
The statute [RCW 4.24.010] lists the following recoverable damages: medical, hospital, and medication expenses; loss of the child's services and support; loss of the child's love and companionship; and injury to, or destruction of, the parent-child relationship, which includes mental anguish, grief, and suffering .
House Bill Report, H.B. 1135, 66th Leg., 2019 Reg. Sess., at 3 (Wash. 2019) (emphasis added). Significantly, the report’s notes focus on the “destruction of the parent-child relationship” language in the statute to “include” mental anguish and grief recovery. This reflects the decision in Wilson where the court concluded that the 1967 addition to the statute of the phrase “destruction of the parent-child relationship” triggered recovery for mental anguish and grief: “We construe the language ‘loss of love . . . and . . . injury to or destruction of the parent-child relationship’ To provide recovery for parental grief, mental anguish and suffering as an element of damages intended by the legislature[.]” Wilson , 80 Wn.2d at 96. If the legislature had wanted to upend the longstanding bar on recovery for mental anguish under for wrongful death statute RCW 4.20.010, it could have added language to explicitly call for it, or language comparable to “destruction of a relationship” phrase in the wrongful death of a child actions under RCW 4.24.010. It did neither.
Instead, it added that plaintiffs can recover “economic and noneconomic” damages in an apparent effort reflect the caselaw that had long allowed plaintiffs to recover such pecuniary losses. The House Bill Report describes the legislature’s awareness of the caselaw allowing such recovery in its description of pre 2019 amendments wrongful death statute:
General Wrongful Death Action: Under a general wrongful death action, a decedent's personal representative may bring a cause of action on behalf of specified beneficiaries for damages they suffered as a result of the decedent's death. The statute does not specify the types of damages that are recoverable; however, under case law actual pecuniary losses are recoverable . "Pecuniary losses" include not only actual monetary losses, but also intangible losses such as the loss of the decedent's support, services, love, affection, care, companionship, society, and consortium.
House Bill Report, H.B. 1135, 66th Leg., 2019 Reg. Sess., at 2 (Wash. 2019) (formatting omitted) (emphasis added). This interpretation squares with the House Bill’s summary of the amendments to the wrongful death statute, describing the statute’s change to available damages:
Damages. A specific statement is added that both economic and noneconomic damages are recoverable against the person causing the death in such amounts as the trier of fact determines to be just under the circumstances of the case
Id . at 4. Such an interpretation does not render the amendments “mere surplusage,” but rather squares with the legislative history and assumes the legislature’s knowledge of what language is needed to trigger recovery for mental anguish when decades of caselaw ban it. Unlike the “‘loss of love . . . and . . . injury to or destruction of the parent-child relationship’ language that the Washington Supreme Court contended with when determining whether to allow recovery for mental anguish for the wrongful death of a child statute in Wilson , the 2019 added language of “economic and non-economic” damages in the present statute is not unique. Wilson , 80 Wn.2d at 99. The terms “economic and noneconomic,” are known to judges and to borrow from Wilson , “old hat.” Id . The legislature’s decision to employ those terms rather than add language that is unique or explicitly allows for mental anguish indicates it desired to allow for the types of pecuniary losses detailed in preceding caselaw.
The repealed definitions section, RCW 4.56.250(1)(a)–(b), does not save the Blanchards’ position. The broad definitions are illustrative, but contain examples that are not a “one size fits all” for the various wrongful death and survival statutes. The definitions include some examples that make no sense in the wrongful death context, such as “loss of use of property” or “cost of replacement or repair” in the economic damages section.
The Washington Pattern Jury instructions interpreting the wrongful death statutes offer persuasive authority that the Blanchards cannot collect for Roy’s lost wages or mental anguish. A committee that includes judges, law professors, and practicing attorneys draft the pattern instructions. The fact that a pattern jury instruction is approved by the Committee does not necessarily mean that it is approved by the Washington Supreme Court, however “pattern instructions generally have the advantage of thoughtful adoption and provide some uniformity in instructions throughout the state.” State v. Bennett , 161 Wn.2d 303, 307–08 (2007). It is telling that even after the 2019 amendments, the RCW 4.20.010 pattern damages instruction still defines economic damages as allowing recovery for the decedent’s lost wages, and non-economic damages as loss of consortium. There is nothing in the pattern instruction that supports a surviving spouse’s claim for mental anguish, let alone for a loss in earning capacity springing from mental anguish. See 6 Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 31.02.01 (7th ed.) The comment on the WPI for wrongful death of a child that cautions that “the recovery of the parents’ personal grief, mental anguish, and suffering as a result of the child’s death is not recoverable under RCW 4.20.010 et seq” also weighs against allowing Roy to recover his lost wages stemming from mental anguish. Wash. Pattern Jury Instr. Civ. WPI 31.06.01 (7th ed.).
The Blanchards’ argument that “whether the loss of Heather’s companionship and support proximately caused Roy’s loss of earning capacity is a factual question for the jury” and reliance on Pacheco v. United, 200 Wn.2d 171 is unavailing. Dkt. 44 at 20. Pacheco dealt with a common law action for negligent reproductive health care. The wrongful death claim here is statutory, not in the common law. See Philippides v. Bernard , 151 Wn.2d 376, 389–90 (2004) (declining to recognize a common law cause of action for loss of consortium for parents of adult children in wrongful death action because it would directly conflict with existing statutes). Because RCW 4.20.010 does not allow Roy to collect for his lost wages springing from grief, the Blanchards cannot use common law principals of foreseeability to evade that statute’s restrictions on recovery. Finally, the complete absence of any case allowing a surviving spouse to recover for their own lost wages under RCW 4.20.010 since the 2019 amendments is telling.
Because the estate’s statutory damages do not include a beneficiary’s personal lost wages under RCW 4.20.010, the government’s motion for summary judgment dismissing Roy’s claim for personal lost wages is GRANTED . D. Motion to exclude experts
1. Legal standard A qualified expert may testify in the form of an opinion or otherwise only if the
proffered testimony is both relevant and reliable. Fed. R. Evid. 702; Teradata Corp. v. SAP SE , 124 F.4th 555, 566 (9th Cir. 2024) (citing Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 589 (1993)). Rule 702 and Daubert impose on the district court a “gatekeeping” duty to ensure that opinion testimony is relevant and reliable, and an expert’s opinion should be excluded if it does not have a reliable foundation or if it is not based in the knowledge and experience of the relevant discipline. Sonneveldt v. Mazda Motor of Am., Inc. , 2024 U.S. App. Lexis 32836, *3 (9th Cir. Oct. 21, 2024) (citing Primiano v. Cook , 598 F.3d 558, 564-65 (9th Cir. 2010)). “Expert opinion testimony is relevant if the knowledge underlying it has a valid connection to the pertinent inquiry. And it is reliable if the knowledge underlying it has a reliable basis in the knowledge and experience of the relevant discipline.” Surgical Instrument Serv. Co. v. Intuitive Surgical, Inc. , 2024 U.S. Dist. Lexis 81690, *5 (N.D. Cal. March 31, 2024) (quoting Alaska Rent-A-Car, Inc. v. Avis Budget Grp., Inc. , 739 F.3d 960, 969 (9th Cir. 2013)). When an expert meets the Rule 702 threshold the expert may testify, and the jury decides how much weight to give that testimony.” Primiano , 598 F.3d at 565.
2. Mr. Choppa The government argues that if Roy’s claim for lost earnings is dismissed, Mr.
Choppa’s opinion should be excluded in its entirety. Dkt. 41 at 14. Mr. Choppa is a “Vocational Assessment and recommendations” expert. Id . (quoting Choppa Rpt. at 1). According to him, “[a] vocational assessment is a determination of an individual’s ability to work and earn money.” Choppa Rpt. at 8. The government argues that if Roy “is not entitled to recover lost wages for his decision to quit working at the bank and become a barber, then Mr. Choppa’s opinion does not logically advance a material aspect of Plaintiffs’ case rendering it inadmissible pursuant to FRE 702(a).” The Blanchards respond that Mr. Choppa’s testimony is “relevant and admissible on the issue of earning capacity in both Washington and federal courts, as it helps establish the necessary factual connection between the wage loss and the underlying event” and that his “observations address not only Roy’s wage-earning capacity but also encompass other losses recognized as ‘subjective, nonmonetary losses,’ such as ‘inconvenience,’ related to the ongoing effort required for Roy to restore his emotional wellbeing and return his life [.]” Dkt. 47 at 15 (citations omitted).
Given its dismissal of Roy’s lost earnings claim, the Court concludes that Mr. Choppa’s opinion does not meet Rule 702’s relevance requirement. Because the Court has already concluded that Roy’s lost wages are not a “pertinent injury” recoverable under RCW 4.20.010, Mr. Choppa’s opinions surrounding his earning capacity and what lost wages are attributable to the loss of Heather are not helpful to the jury. To the extent that Mr. Choppa offers opinion on “other losses” such as Roy’s “inconvenience” related to “restoring his emotional wellbeing,” this information does not logically advance a material aspect of the Blanchards’ case and falls outside the expertise of a vocational expert. The government’s motion to exclude Mr. Choppa’s testimony in its entirety is GRANTED . E. Dr. Hedrick’s testimony
The government also moves to exclude the testimony of Dr. Marsha Hedrick, Ph.D., ABPP. Dr. Hedrick evaluated Roy and his sons and formed opinions on how Heather’s death caused them psychological harm. The government argues that “the only purpose for Dr. Hedrick’s testimony is to establish that the Blanchard family suffered mental anguish, grief, and other psychological injuries due to the loss of [Heather]” and that “[b]ecause the wrongful death statute does not permit beneficiaries to recover for grief-related damage, Dr. Hedrick’s testimony is not relevant to any issue in this case and should be excluded [.]” Dkt. 41 at 15. In opposition, the Blanchards repeat their arguments that the 2019 amendments to the wrongful death statute, RCW 4.20.010, made the cases precluding recovery for mental anguish obsolete and argue that Dr. Hedrick is relevant to the jury to assess the noneconomic harms resulting from Heather’s death.
The Court has already rejected the Blanchards’ interpretation of the 2019 amendments to RCW 4.20.010 and concluded that the amendments did not broaden the recoverable damages to include mental anguish and grief. Accordingly, Dr. Hedrick’s testimony aimed at damages for mental anguish and grief is not relevant to a “pertinent injury” under the wrongful death statute and is excluded under Rule 702. To the extent that she offers testimony on loss of consortium, that topic is within the common knowledge and experience of a lay person and thus her expertise is unnecessary. III. ORDER
Therefore, it is hereby ORDERED that the government’s motion for partial summary judgment and to exclude expert testimony, Dkt. 41, is GRANTED . The motion to dismiss the Blanchards’ motion for NIED is GRANTED . The motion to dismiss the Blanchards’ claim to collect Roy’s lost wages is GRANTED . The motion to exclude the testimony of both Mr. Choppa and Dr. Hedrick is GRANTED .
Dated this 5th day of August, 2025.
A
BENJAMIN H. SETTLE
United States District Judge
NOTES
[1] The Court refers to the various members of the Blanchard family by first name for 22 clarity when referring to them as individuals. It intends no disrespect.
[2] The parties also dispute whether plaintiffs gave sufficient notice to the government of their claim for Roy’s lost wages. The government argues that Roy does not seek to recover his own loss of earning capacity/wages in his amended complaint, but that he instead impermissibly first raised that claim in his interrogatories. Dkt. 41 at 11–12. Because the Court exercises its discretion to reach the merits of Roy’s request for lost wages, the dispute over notice is denied.
[3] Federal Tort Claims Act (FTCA), Pub. L. No. 79-601, 60 Stat. 812-852, 21
[4] The Washington Supreme Court exercised its discretion to reformulate the question 22 slightly to the phrasing in this Order. Id . at 179.