Judge Kirsten Kelly and others overturn another verdict for an injured plaintiff
David Keusch had a long history of neck and back pain, starting with a fractured vertebra when he fell from a tree as a child. In 1996, he suffered a ruptured disc while working as a building contractor. In January of 2005, he suffered further problems after "something popped" in his neck while unloading a large window from his truck. The latter injury qualifies for No Fault Personal Injury Protection because Keusch was "unloading a vehicle" in a non-employment setting. His wife testified that after this event Keusch's pain was unrelenting and severe.
Keusch applied for PIP benefits from his auto insurer, Farm Bureau. In the interim, he increased the dosage of pain medication he was receiving from his physician and Fentanyl patches were added.On March 17, 2005, his wife returned from the drugstore with five new Fentanyl patches for his use. She left for a little over an hour while Keusch was preparing to immerse himself in a hot bath for pain relief. When she returned, Keusch was dead and two of the patches were gone.
An autopsy determined that Keusch had a fatal level of Fentanyl in his system, along with cocaine in an amount that could be fatal. His family sought No Fault Survivor's benefits from Farm Bureau: these benefits would include paying for Keusch's medical expenses, and also paying up to $600.00 in household services for approximately 33 months. Farm Bureau disputed that there was any causal relationship between Keusch's January injury and his March death.
Several physicians and toxicology experts testified about the cause of death, with some confirming the toxic level of Fentanyl and one attributing the death solely to cocaine. Ultimately, the lower court judge concluded that there was a weak causal relationship between the consumption of a fatal dose of Fentanyl and the unloading incident. He awarded the family 36 months of "tangible things of economic value" the decedent would have provided. The Court of Appeals overturned this conclusion, substituted its evaluation of the expert testimony for that of the judge who heard the case, and denied the family the three years of PIP benefits which they had purchased.