Yes Drinking Water Can Kill You

Just ask the family of Jennifer Strange, who died of hyponatremia, also called “water intoxication,” as a result of participating in a radio contest called “Hold Your Wee For A Wii” up in Sacramento two years ago. She was 28 when she died, and the mother of three children who are now age 13, 6, and 3. She worked as a supervisor in a radiology laboratory, where she earned about $60,000 a year.

Today, her husband William Strange, on his own behalf and as guardian ad litem for the three children, won a verdcit of just shy of sixteen and a half million dollars for the loss of William’s wife Jennifer, with whom he had three children.  While this is high verdict for a death case, it is hardly out of the realm of what could be expected.  Particularly if the radio station had a doctor available to them and failed to consult one before holding a contest of this nature — or worse yet, if it had been told of medical risks of having people drink large amounts of water quickly and ignored that advice.  Apparently, people had called in to the “on-air personalities” (I guess they’re not called deejays anymore) with warnings about these dangers and been either ignored or lampooned on the air.

What’s of particular interest to me is the way the number got reached.  A pet peeve of mine is that jurors get instructions about the law from a judge, and they simply do not understand what those instructions mean.  I’ve done jury exercises in my business law classes and in each and every one of them, juror error sufficient to reverse their verdict on appeal took place.  This case seems to be no different:

Economic damages were assessed at $1,477,118. Non-economic damages were assessed at $15,100,000. [¶] According to juror LaTeshia Paggett, some jurors thought that criteria they’d been instructed to consider for compensation like love, companionship, and moral guidance were invaluable, and as such, the family should receive zero compensation for those areas. She said other jurors disagreed sharply and felt the compensation should have been as high as $48 million dollars. In the end, according to juror Tammy Elliott, the jury agreed to averaging the dollar amount each juror felt appropriate. “Each juror’s number was weighted equally,” Elliott said.

If someone describes something like “love, companionship and moral guidance” as “invaluable”, that word conveys to me the implication that those things are immensely important, such that they are of infinite or incalculably high value. As a juror that would motivate me to make a large non-economic damage result. But obviously some jurors thought the exact opposite — that they were not possessed of any monetary value or that they were qualitatively incapable of being expressed in dollars and cents. This is not the intent of the law, but it is not an unreasonable thing to believe.

Further, consider Judicial Council of California Civil Jury Instruction (CACI) No. 3921, in more or less the form that it would likely have been read to the jury:

If you decide that William Strange has proved his claim against the radio station for the death of Jennifer Strange, you also must decide how much money will reasonably compensate William and his three children for the death of Jennifer. This compensation is called “damages.”

William does not have to prove the exact amount of these damages. However, you must not speculate or guess in awarding damages.

The damages claimed by William fall into two categories called economic damages and noneconomic damages. You will be asked to state the two categories of damages separately on the verdict form.

William claims the following economic damages:

1. The financial support, if any, that Jennifer would have contributed to the family during either the life expectancy that she had before her death or the life expectancy of William and the children, whichever is shorter;
2. The loss of gifts or benefits that William and the children would have expected to receive from Jennifer;
3. Funeral and burial expenses; and
4. The reasonable value of household services that Jennifer would have provided.

Your award of any future economic damages must be reduced to present cash value.

William also claims the following noneconomic damages:

1. The loss of Jennifer’s love, companionship, comfort, care, assistance, protection, affection, society, moral support;
2. The loss of the enjoyment of sexual relations;
3. The loss of Jennifer’s training and guidance.

No fixed standard exists for deciding the amount of noneconomicdamages. You must use your judgment to decide a reasonable amount based on the evidence and your common sense. For noneconomic damages, determine the amount in current dollars paid at the time of judgment that will compensate William and the children for those damages, and do not reduce them further to present cash value.

In determining William’s loss, do not consider:

1. William’s grief, sorrow, or mental anguish;
2. Jennifer’s pain and suffering; or
3. The poverty or wealth of the Strange family.

In deciding a person’s life expectancy, you may consider, among other factors, the average life expectancy of a person of that age, as well as that person’s health, habits, activities, lifestyle, and occupation. According to an actuarial table, the average life expectancy of a 28-year-old female is an additional 53 years, and the average life expectancy of a 29 year-old male is an additional 48.5 years.  This published information is evidence of how long a person is likely to live but is not conclusive. Some people live longer and others die sooner.

In computing these damages, consider the losses suffered by all plaintiffs and return a verdict of a single amount for all plaintiffs. I will divide the amount among the plaintiffs.

Well, tell me, Readers, does that instruction confuse you?  Does it give you good guidance in deciding how much money William Strange and his three children should recover for the loss of his wife and their mother?  Now imagine that your primary exposure to this explanation of the law was the judge reading it to you out loud in a monotone voice out of a sheaf of papers, as part of an hour’s worth of such a reading.  Do you think you could apply that standard correctly?

What’s more, jurors may not use aggregating methods like averaging to reach their verdicts. I quote verbatim from CACI 5009:

While I know you would not do this, I am required to advise you that you must not base your decision on chance, such as a flip of a coin. If you decide to award damages, you may not agree in advance to simply add up the amounts each juror thinks is right and then make the average your verdict.

Well, that’s pretty much exactly what juror Tammy Elliott said they did. So we’ve got some pretty good juror error here — although it’s hard to say, exactly, how laypeople thrown into such a tense, complicated, and out-of-their-comfort-zone sort of environment could reasonably have been expected to have behaved otherwise.

Therefore, the radio station is certain to appeal.  It has sixteen and a half million good reasons to.  Should the appeal proceed all the way to examination by the appellate court, the appellate court’s instict will be to strain reality and credibility mightily in a desparate effort to come up with some logical, coherent way to justify the jury’s award.  If it can do so, the award will stand; if not, the parties will have to go back and try the case all over again so that a new jury can either make the same mistakes anew, or find new and different mistakes to make.

What will very likely happen during the appeal is that some kind of a settlement, for a fraction of the verdict, will be reached.  The exact number will be confidential.  I would expect that number to be between one-third to one-half of the verdict, but hey, what do I know?  Well, I know that the money in whatever amount it winds up being will be a very poor substitute indeed for William Strange and his children, who have lost a beloved wife and mother.

This, my good Readers, is how our civil justice system works, both in theory and reality. And yes, I honestly think that it really is the best judicial system in the world. Which does not mean it is a good system — just that I think it is the best one available.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.


  1. Why is it that settlement amounts often are confidential, tradition or some other purpose?Peter

  2. So that other plaintiffs and claimants won't know how much money you've paid out in the past.

  3. As a layman, and thus from the perspective of a potential juror, there seems like there's a difference between "agree[ing] in advance", which the judge forbade, versus "in the end", after finding an fundamental difference in philosophy about noneconomic damages, which is apparently what they did.

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