Abigail's death reduces damages, experts say

The death of 6-year-old Abigail Taylor of complications from a wading pool accident last summer means the maker of the pool and the club where she was injured likely will pay less in damages.

The Edina girl's death last week changes the family's lawsuit from a personal injury case to a wrongful death case, and moves damages from the possible blockbuster range down to the mere millions, said most lawyers interviewed Monday.

But the family's lawyer, Bob Bennett, disagreed. "Historically, that's been true," he said. "I don't know if that's going to hold up in this case."

Legal claims for Abigail's past and future pain and suffering and future medical care no longer exist, although the family can still collect for past medical bills.

The case could have been a record-breaker, said Bill Jepsen, a lawyer at Schwebel, Goetz & Sieben, a leading personal injury and wrongful death firm. Others, including Dorsey & Whitney law firm partner George Eck and lawyer and radio commentator Ron Rosenbaum, agreed.

"The cost of her future care would have been right through the roof. I mean millions and millions and millions of dollars. That claim is gone," Jepsen said.

Abigail's ordeal began June 29, when she sat on an uncovered drain in a wading pool at the Minneapolis Golf Club in St. Louis Park. The suction pulled out 21 feet of her small intestine. She died last week after contracting cancer related to a triple-organ transplant.

Lawyers for the defendants didn't return calls. "It's still a very large case because the loss to the family is significant. But it's not comparable to her past and future suffering and medical bills," Rosenbaum said.

Only Chris Messerly, a partner at Robins, Kaplan, Miller & Ciresi, said the possible damages would be unchanged by the death. "I'd argue the value goes up," he said. "Fewer things have greater value than a relationship with your child."

Unless Bennett makes the case, the jury will be directed not to award damages to punish the defendant for Abigail's pain and suffering or the parents' emotional distress. "They get nothing for their grief," Jepsen said.

Bennett said he expects to make a successful case for punitive damages because of eight specific violations found by the state Health Department. "I'll bet you by the time I get to a jury, I have [a case for punitive damages]."

Eck said wrongful death lawsuits can be substantial when an adult dies and leaves dependents. The survivors could get a big settlement.

Bennett said Abigail wasn't an ordinary child. "It's hard to point to the achievements of average 6-year-olds, but not in her case," he said, noting new federal safety legislation passed after her accident.

According to the law, par-ents of wrongfully deceased children are entitled to medical and funeral expenses as well as loss of counsel, guidance, aid, advice, comfort and protection. "Those are the items you have to argue to a jury that are worth millions of dollars," Jepsen said. He has seen juries award anywhere from $300,000 to $3 million for such things in the death of a child.

"It's a huge, huge loss, a terrible tragedy, but I would have to say the value of the claim is smaller than if she had lived," Jepsen said.