All accidental deaths are horrifying, but not are more awful than those involving young children. On a recent episode of All Things Legal, Craig Ashton, Ed Schade, and Tim Hodson discussed the recent settlement of a wrongful death case involving a 13 year old girl who died from peanut exposure at a city-owned camping facility three years ago.
Overview of the Natalie Giorgi Case
Craig: “A little girl named Natalie Giorgi… she was at Camp Sacramento, up at Lake Tahoe. She was there with her family, and her parents made very clear—which is important, because they put the camp on notice, in writing and verbally—that she was deathly allergic to peanuts. So, they were at the camp, and apparently [camp staff] gave some Rice Krispies Treats [to Natalie], but what they didn’t check was, in the marshmallows, there was a [peanut-based] ingredient in the Rice Krispies Treat.
“She ate that, and went into immediate anaphylactic shock. Her father—who is a urological surgeon—was there, and twice injected her with epinephrine to no effect, and then broke into the nurses’ medicine locker and got another [epinephrine injector], to no effect. Tragically, she died right there in front of her parents.
“As a result of Camp Sacramento being put on notice, and the fact that they were the active participant in providing the food, so they had a duty once they were on notice to make sure there were no peanuts [their food]. They didn’t do that, so they were sued for wrongful death, and then they were also sued, I would imagine, for personal injury, because the father, who’s a urological surgeon, severed a tendon in his dominant arm in his attempt to revive his daughter, and as a result he could no longer practice surgery anymore.
How Wrongful Death Damages are Calculated
“The settlement was for 15 million dollars. You know, it’s a pretty big number. So I was trying to figure out how you get 15 million dollars in a wrongful death case, because the only way you’re ever going to be fully compensated in a wrongful death case is by a magic wand that you win, and you get to wave that and bring your daughter back. There’s no amount of money on the planet that’s ever going to make you whole. But the imperfect remedy of money is all we have.
“So, when you’re dealing with a young child like this, there’s no lost income, unless they’re on Nickelodeon or what have you. So basically what you have is loss of love, comfort, and support. Support doesn’t exist because you’re not earning any money. So it’s basically a general damages/pain and suffering type of experience, based upon the relationship between the daughter and the parents. It’s obviously pretty clear that they were very close, because the father brought the EpiPens with him, knew his daughter had this allergic reaction, and was there with his daughter and tried to save her. So clearly it was a close relationship. It’s not like they sent her off to Europe every year.
“And then there was a separate cause of action: there was a duty (and a breach) to the father. But he [also] had personal injury for the severed tendon in his hand, and has damages probably became astronomical as a result of the lost income claim, because if he can’t practice as a surgeon anymore, let’s say he’s making 250,000 dollars a year, he must be relatively young because his daughter was only 13, so let’s say he’s 40. So we got maybe 30 years of work life expectancy times 250,000 dollars, that adds up to almost 10 million bucks [7.5 million dollars, to be exact].
“That’s how the number got to 15 million, I believe, because of the combined wrongful death… personal injury, and loss of income claim. That would be pretty dramatic. And then, the negligent infliction of emotional distress…
“In California, you used to have to be in the ‘zone of danger.’ In other words, if you were standing on the corner and your daughter was run over, you’d have to be in the zone of danger [proximate to] the vehicle. That changed. Now you have to be a close family member, at the injury producing event, aware that it’s causing injury, and suffered severe emotional distress.”
At this point, Tim Hodson popped in for just a moment to mention Dillon v. Legg, the 1968 California Supreme Court case which set the modern legal definition for negligent infliction of emotional distress in its opinion.
Expired EpiPens, a Topic of Recent Concern, Played a Role as Well
Returning to the Camp Sacramento case, Craig stated that severe emotional distress “would be super simple to prove in a case like this.” He then asked if Ed and Tim agreed with that assessment.
Ed: “Oh absolutely, it’s Dillon v. Legg case. The other thing, it’s my understanding from talking with someone that was familiar with the case was that the EpiPens that may have been present at the camp, or some of the EpiPens that were used were out of date and/or malfunctioning. Those issues combined with everything else going on, resulting in this travesty.”
Craig: “But there’s a couple things that came out of this. Because usually what it is, is there’s only a monetary remedy. But because of the pressure that was put Roger Dreyer of Dreyer Babich and the family… Camp Sacramento will become an accredited member of the American Camp Association, which basically [provides them with proper training in] food service safety, emergency procedures, transportation, sleeping quarter arrangements, etc. So that’s going to change the dynamic a little bit about how careful Camp Sacramento is, that’s a really good thing. Also, another really good thing that occurred as a result of this is that ultimately there is now an awareness of how important it is to make sure that when people have allergies, that you don’t take that lightly.”
When Properly Litigated, Personal Injury Cases Can Better Society as a Whole
In discussing the non-monetary consequences of this case, Craig was motivated to take a moment to discuss the public good that oft-maligned personal injury attorneys have helped to bring about: “The reason you have airbags and three-point harnesses and better A-pillars… it has a lot to do with pressure that personal injury attorneys put on manufacturers. They don’t change their behavior unless there’s a consequence.
“That’s one of the things that Roger Dreyer pointed out: that there’s a consequence. It’s a big one. And that’s one of the reasons [Camp Sacramento is] changing their policies. They never want this to happen again, but there’s [also] a massive monetary penalty for them, and also bad publicity. So without a good personal injury attorney pressing the case, you’re not going to have these types of changes which are peripheral to the civil system.”
