FSM SUPREME COURT
TRIAL DIVISION
Cite as Primo v. Refalopei,
7 FSM Intrm. 423 (Pon 1996)

[7 FSM Intrm. 423]
 
EMERENCIANA PRIMO,
Plaintiff,

vs.

KORNELIO REFALOPEI, CHUUK STATE
HOSPITAL, CHUUK STATE GOVERNMENT,
Defendants.

CIVIL ACTION NO. 1992-044

ORDER AND MEMORANDUM OF DECISION

Andon L. Amaraich
Chief Justice

Trial:  June 6-8, 20, 22, July 5-6, 1995
Decided:  March 25, 1996

APPEARANCES:
For the Plaintiff:          Mary Berman, Esq.
        P.O. Box 163
                                     Kolonia, Pohnpei FM 96941

For the Defendant:     Les Downs, Esq.
(Refalopei)                  j Office of the Public defender
                                     P.O. Box PS-174
                                     Palikir, Pohnpei FM 96941

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HEADNOTES
Judgments) Default Judgments
     An entry of default requires that all material allegations of the plaintiff's complaint be taken as true, so that judgment by default can be properly rendered without proof of the plaintiff's claim except as may be required to establish damages. Primo v. Refalopei, 7 FSM Intrm. 423, 427 (Pon. 1996).

[7 FSM Intrm. 424]

Judgments) Default Judgments; Torts) Damages
     An entry of default does not relieve a plaintiff of the burden of proving the damages that flowed from the liability thus established.  Primo v. Refalopei, 7 FSM Intrm. 423, 428 (Pon. 1996).

Torts) Causation
     Medical malpractice by hospital staff does not relieve a tortfeasor of his responsibility for damages, because any injuries that might have been caused by the staff flowed naturally from his own acts.  Primo v. Refalopei, 7 FSM Intrm. 423, 429 (Pon. 1996).

Torts) Causation
     The proximate cause of an injury is the primary or moving cause which in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, if the injury be one which might be reasonably anticipated or foreseen as a natural consequence of the wrongful act.  Primo v. Refalopei, 7 FSM Intrm. 423, 429 (Pon. 1996).

Torts) Causation
     Medical actions of a hospital staff do not constitute an efficient intervening cause that would break the causal link between a tortfeasor's attack and the plaintiff's injuries.  Primo v. Refalopei, 7 FSM Intrm. 423, 429 (Pon. 1996).

Torts) Damages
     A tortfeasor is responsible for all damages flowing from his actions, including injuries related to medical care and treatment.  Primo v. Refalopei, 7 FSM Intrm. 423, 430 (Pon. 1996).

Torts
     A tort is a wrong for which the harm that resulted, or is about to result, is capable of being compensated in an action at law.  The purpose is to afford compensation for injuries sustained by one person as the result of the unreasonable or socially harmful conduct of another.  Primo v. Refalopei, 7 FSM Intrm. 423, 430 n.13 (Pon. 1996).

Torts) Wrongful Death
     Because there is no survival statute in the FSM that would allow a deceased victim to sue a tortfeasor, the deceased cannot be awarded damages for wrongful death.  The statute does allow a deceased's personal representative to sue for wrongful death on behalf of the deceased's relatives.  Primo v. Refalopei, 7 FSM Intrm. 423, 430-32 (Pon. 1996).

Torts) Damages; Torts) Wrongful Death
     Damages for lost future earnings are not awardable where they are duplicative and speculative, but damages may be awarded for financial and emotional loss, and for loss, at present value, of customary services that a child would have preformed if not for her wrongful death.  Primo v. Refalopei, 7 FSM Intrm. 423, 433-34 (Pon. 1996).
 
Torts) Damages
     Awarding damages for pain and suffering is one of the most difficult tasks of a court because the determination lies solely in the discretion of the trier of fact and no fixed rules exist to aid in the determination.  Primo v. Refalopei, 7 FSM Intrm. 423, 434 (Pon. 1996).

Evidence) Hearsay
     Statements made for purposes of medical diagnosis or treatment are not excluded from admissibility by the hearsay rule.  Primo v. Refalopei, 7 FSM Intrm. 423, 436 n.28 (Pon. 1996).

[7 FSM Intrm. 425]

Torts) Damages
     Punitive damages may be awarded when a tort was committed with actual malice, or deliberate violence, or the acts complained of were wanton, reckless, malicious and oppressive and are given to enhance compensatory damages.  Punitive damages depend on the existence of compensatory damages and cannot be awarded in the absence of compensatory damages.  Primo v. Refalopei, 7 FSM Intrm. 423, 435-36 & n.29 (Pon. 1996).

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COURT'S OPINION
ANDON L. AMARAICH, Chief Justice:

INTRODUCTION
     On April 29, 1992, Emerenciana Primo filed a complaint against Kornelio Refalopei, the Chuuk State Government and the Chuuk State Hospital, both in her capacity as personal representative for her deceased daughter, Judy Primo, and on her own behalf as Judy Primo's mother.1  Plaintiff's complaint alleged that Kornelio Refalopei assaulted her daughter with a chemical spray, forcing it into her mouth, eyes and throat, and that the attack caused her daughter great pain, suffering and mental distress, and ultimately caused her death.  Plaintiff further alleged that the Chuuk State defendants contributed to her daughter's injuries and death through the negligent treatment and care they provided to her while she was hospitalized for injuries caused by defendant Refalopei's attack.

     On May 2, 1992, the Chuuk State defendants filed an answer to plaintiff's complaint, denying liability.  Defendant Refalopei did not file an answer, although it is undisputed that he was served with a copy of plaintiff's complaint.  Based on Defendant Refalopei's failure to answer, plaintiff sought an entry of default against him, which the Court granted on October 7, 1992.2  Following that entry of

[7 FSM Intrm. 426]

default, plaintiff's action proceeded against the Chuuk State defendants for almost three years, until June 6, 1995, when plaintiff voluntarily dismissed both Chuuk State Government and Chuuk State Hospital from the entire case.

     As a result of the dismissal of the Chuuk State defendants and the default entered against Defendant Refalopei, the only remaining issue left for the Court's consideration at trial was the appropriate amount of damages to be assessed against Defendant Refalopei.  To that end, the Court proceeded directly to a hearing on damages.

     Plaintiff's complaint seeks damages against the defendant for injuries he caused to both her daughter Judy and to herself.  On Judy Primo's behalf, plaintiff seeks damages for her daughter's "extreme pain and suffering, mental distress and eventual death," and for Judy's medical, hospital, and burial expenses.  In addition to these claims, Emerenciana Primo seeks damages on her own behalf for the "loss of love, affection, society, companionship, comfort, protection, care, guidance and/or support" of her daughter, and for the "severe mental and emotional distress which has caused and continues to cause [her] great physical harm, mental pain, and suffering."  Finally, plaintiff requests a substantial award of punitive damages, based on her claim that defendant's conduct was "grossly negligent" and that it demonstrated "a reckless, wanton and wilful disregard for the life, health, and well-being of Judy Primo and for the health and well-being of Plaintiff Emerenciana Primo."

     At the hearing on damages, both parties were represented by counsel, and both presented evidence and witness testimony.

FACTS
     According to the evidence presented at the hearing, Judy Primo left Pohnpei in June of 1989 and travelled to Chuuk with relatives of Defendant Refalopei.  On the day that she left for Chuuk, she was by all accounts a healthy seventeen-year old girl who had just finished her junior year of high school.  Judy's mother stated that Judy had been an honor student and that she had never been hospitalized or seriously ill.3  She also stated that, except for a one-month period immediately prior to Judy's departure for Chuuk, Judy had lived with her mother and performed many chores around the house.  In addition to her schoolwork, Judy's mother estimated that Judy spent approximately sixty hours each week babysitting, cooking, cleaning, and gardening for the family.

     In August 1989, Kornelio Refalopei physically assaulted Judy Primo.  During the course of the attack, he beat and scarred her, and sprayed Impulse Body Spray into her eyes, nose, throat and genitals.  See infra note 28.  The warning on the can of Impulse Body Spray he used cautioned users to avoid spraying the substance in eyes, and warned that inhaling the contents might be "harmful or fatal." Immediately after the attack, Judy left the Refalopei home and went to live with her father, who also was residing in Chuuk.  She remained there for four months.
 
     In the fall of 1989, Judy went to Chuuk State Hospital complaining of throat pains.  Although she was not hospitalized during that visit, her condition subsequently worsened.  In March 1990, she returned to the Chuuk State Hospital and was admitted as a patient.  She stayed at the Chuuk State

[7 FSM Intrm. 427]

Hospital until March 30, 1990, when she was transferred to Pohnpei State Hospital.  She then remained hospitalized in Pohnpei until her death on April 21, 1990.  Judy spent the last six weeks of her life in the hospital.

     According to the testimony of Judy's treating physicians and to her autopsy report,4 the last months of Judy's life were marked by debilitating illness and extreme pain.  Although the actual cause of her death was attributed to fibrotic lung disease, caused either by tuberculosis or the inhalation of a harmful environmental factor, Judy also was afflicted with many other problems.  As a result of the throat pain caused by the Impulse Body Spray, Judy was unable to eat, and became anemic and severely malnourished.  During her hospitalization, her body weight dropped to sixty pounds, approximately one-half her normal weight.  Doctors inserted a feeding tube into her stomach to combat her malnutrition and severe weight loss, but due to her extremely thin condition they were unable to stabilize the feeding tube.  Surgery became necessary after her feeding tube became loose, causing infection.  During the course of her treatment, she suffered a collapsed lung, which required the insertion of a second tube into her chest cavity.  In addition to these surgical procedures, she also suffered difficulty in speaking due to the pain in her throat; she became deaf as a side effect of the tuberculosis medication which was prescribed for her; she suffered internal bleeding; and she eventually succumbed to severe depression as a result of her condition.  The evidence produced at the hearing also indicated that Judy's body had lasting physical scars as a result of Mr. Refalopei's attack.5

     On March 7, 1990, Mrs. Primo learned that her daughter was seriously ill and had been admitted to Chuuk State Hospital.  Mrs. Primo believed that her daughter was dying and made immediate arrangements to leave Pohnpei to go to Chuuk. After arriving in Chuuk, Mrs. Primo remained at Judy's hospital bedside there, and then at the Pohnpei State Hospital, until her daughter died six weeks later.  During that period, Mrs. Primo listened to her daughter's daily accounts of the defendant's attack, and watched her daughter deteriorate further.  She participated in Judy's care, helping to feed and bathe her, and was at the hospital on the night that Judy passed away.

     At the hearing on damages, Mrs. Primo testified that she spent $6,000 on a four day funeral for Judy.  Although she admitted that the defendant's family had given her family a $2,000 payment for funeral expenses, as part of a traditional Pohnpeian apology they offered following Judy Primo's death, she stated that she had refused to accept the amount personally, and instead gave the money to her father.  See Suka v. Truk, 4 FSM Intrm. 123, 128-29 (Truk S. Ct. Tr. 1989) (discussing generally the effect of customary apologies and settlements in tort cases).  Mrs. Primo testified that this ordeal has been very difficult for her and that she is still having nightmares and fighting the effects of depression.

DISCUSSION
I.  Proximate Causation
     An entry of default requires that "all the material allegations of the plaintiff's complaint [be] taken as true, so that judgment by default can be properly rendered without proof of the plaintiff's claim except as may be required to establish damages."  47 Am. Jur. 2d Judgments 1180 (1969).  See also B. Finberg, Annotation, Necessity of Taking Proof as to Liability of Defaulting Defendant, 8 A.L.R.2d

[7 FSM Intrm. 428]

1070, 1073 (1966) (regarding plaintiff's proof).  Therefore, the Court accepts as true that the defendant assaulted Judy Primo and sprayed Impulse Body Spray into her mouth, throat, and eyes, and that those actions caused the injuries alleged. See Complaint paras. 6, 13, 17, 23.  Having established liability, plaintiff was then still required to "establish the extent of the injuries established by the default." Trans World Airlines, Inc. v. Hughes, 440 F.2d 51, 70 (2d Cir. 1991) (emphasis in original).  The Court's entry of default did not relieve her of the burden of proving the damages that flowed from the liability established.  See 47 Am. Jur. 2d Judgments 1152 (1969) (the main purpose of an entry of a default is to keep the dockets current and to prevent a procrastinating defendant from dragging his feet; the mechanism is not intended as an offensive weapon to be used as an advantage to a plaintiff, or to be used to enable a plaintiff to win an award without having to confront the evidentiary difficulties that usually arise at trial).

     At the hearing on plaintiff's claims for damages, defendant disputed that there was a causal link between his attack and Judy Primo's death.  While the Court's entry of default prevented him from arguing that he had not committed the acts alleged in plaintiff's complaint, see 47 Am. Jur. 2d Judgments 1153 (1969), he nevertheless attempted to disprove that his actions had caused Judy Primo's death.  Defendant first argued that many of the injuries Judy sustained were the result of medical malpractice, and that he should not be held responsible for her injuries to the extent they were caused by the negligence of the Chuuk State Hospital.  Next, he argued that Judy had died from tuberculosis rather than from the Impulse Body Spray he forced down her throat, and that he should not be held responsible for her death from tuberculosis.

     The Court rejects both of these arguments and concludes that the defendant is liable for the full extent of Judy Primo's injuries and all damages resulting from those injuries.  According to the testimony of Dr. Kapiteni6 and the autopsy report prepared for Judy, the cause of Judy Primo's death was "fibrotic lung disease." Dr. Benito Andres7 and Medical Officer Kiosi Aniol,8 testifying on behalf of the defendant, stated that Judy Primo had contracted tuberculosis.  However, evidence was adduced at the hearing that fibrotic lung disease is not an actual disease, but rather an end result or condition that may afflict the lungs.  Evidence presented at the hearing also indicated that there are two leading causes of fibrotic lung disease:  (1) an infectious disease that afflicts the lungs, such as tuberculosis or cancer, or (2) harmful environmental agents that enter the lung cavity, such as those contained in Impulse Body Spray.  Moreover, while Dr. Kapiteni stated that he was uncertain whether Judy's fibrotic lung disease was caused directly by the Impulse Body Spray, or indirectly by tuberculosis, it was his expert opinion that if Judy had caught tuberculosis, the

[7 FSM Intrm. 429]

Impulse Body Spray would have been a "substantial factor" in causing that disease.  In addition, Dr. Kapiteni stated that a person is typically more susceptible to contracting tuberculosis if he or she is in a weakened state due to illness or an attack.  Accordingly, based on the expert testimony presented at trial, and because this testimony was never refuted, the Court concludes that the full extent of Judy Primo's injuries were proximately caused by the actions of the defendant.

     The Court also finds that defendant's claim of medical malpractice on the part of the Chuuk State Hospital staff does not relieve him of his responsibility for damages, because any injuries that might have been caused by the hospital staff flowed naturally from his own acts.  The FSM has adopted the universal "proximate cause" approach to apportioning liability and damages due to negligence.  See Leeruw v. FSM, 4 FSM Intrm. 350, 361 (Yap 1990).  According to Black's Law Dictionary 1103 (5th ed. 1979):

[T]he proximate cause of an injury is the primary or moving cause, or that which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury and without which the accident could not have happened, if the injury be one which might be reasonably anticipated or foreseen as a natural consequence of the wrongful act.

See also Kihleng v. Lucios, 7 TTR 168 (Pon. 1975) ("[p]roximate cause [is] the active and efficient cause that sets in motion a train of events which bring about a result without the intervention of any force started and working actively from a new and independent source"); Ychitaro v. Lotius, 3 TTR 3, 7 (Truk 1965) (defendant's negligence found to have proximately caused child's death by drowning, where there was no intervention of any new cause which was not naturally to be expected).One who has acted negligently will be held liable for the damage proximately caused by his negligence.  See Leeruw, 4 FSM Intrm. at 361.  The Court concludes that Judy Primo sought medical care as a direct consequence of the defendant's attack.  Although the Court did not make a finding as to whether the Chuuk State Hospital staff acted negligently in the care they gave Judy, the Court nonetheless concludes that none of the actions of the Chuuk State Hospital constituted an "efficient intervening cause" that would break the causal link between defendant's attack and Judy Primo's injuries.  See also Ludwig v. Mailo, 5 FSM Intrm. 256, 261 (Chk. S. Ct. Tr. 1992).  The evidence at the damages hearing indicated that Judy Primo became sick shortly after the defendant attacked her with a chemical spray, which bore an express warning that it might be harmful or fatal if inhaled,9 that Judy's condition worsened over the next eight months, and that she was hospitalized for the last six weeks of her life.

[7 FSM Intrm. 430]

     Accordingly, the Court finds that Defendant Kornelio Refalopei is responsible for all damages flowing from his actions, including injuries and damages relating to Judy's care and treatment.

II.  Compensatory Damages Sought
     Plaintiff's complaint requests four categories of compensatory damages.  On behalf of Judy Primo's estate, Mrs. Primo seeks:  (1) damages for Judy's pain and suffering, and mental distress; and (2) medical, hospital, travel and burial expenses incurred in connection with Judy's illness and death.  On her own behalf, Mrs. Primo seeks:  (1) damages for the loss of the emotional and financial support of her daughter; and (2) damages for the pain, suffering and mental distress she herself has suffered by reason of the defendant's attack and her daughter's ordeal.10

     For reasons that will be explained below, the Court finds that FSM law does not support the cause of action plaintiff asserts for Judy Primo's pain and suffering and mental distress.  However, the damages Mrs. Primo seeks on her own behalf, which include requests for compensation for her own mental distress and pain and suffering, as well as for the loss of support, and companionship of her daughter, are properly compensable under the FSM wrongful death statute, as are her claims for transportation, medical and funeral expenses.

A.  Compensatory Damages for Judy Primo's Pain and Suffering
     Plaintiff has not provided the Court with any statutory support for the damages Judy Primo's estate seeks to recover for Judy's mental distress and pain and suffering.11  The FSM's wrongful death statute expressly provides an avenue for the recovery of compensatory damages by Judy's next of kin for their loss. However, the plaintiff has not directed the Court to any FSM statute or decision permitting a survival action to be brought by Judy's estate on Judy's behalf, separate and apart from the recovery allowed under the FSM wrongful death statute.12

     Currently, if a tort13 is committed in the FSM, a tort victim who survives his injuries has a common law cause of action against the person who caused his injuries.  The victim may sue to recover damages to compensate him for any loss or injury he has suffered as a result of the injury, including

[7 FSM Intrm. 431]

his lost wages, his medical expenses, and his pain and suffering.14  However, this case raises a different issue . whether these elements of damages are recoverable on behalf of a tort victim who dies as a result of his or her injuries.

     As this Court discussed in Luda v. Maeda Road Construction Co., 2 FSM Intrm. 107, 110 (Pon. 1985), the wrongful death provisions of the FSM Code are similar to those that appear in most jurisdictions which trace their legal origins to common law traditions.  Under the English common law, if the victim of a tort died from his injuries, his cause of action in tort died with him.  However, if he lived, he could sue his tort-feasor for damages to compensate him for the injuries he had suffered. Prosser & Keeton on Torts 126, 127, at 942, 945 (5th ed. 1984).  This led to the illogical result that a defendant who killed his victim received more favorable treatment than a defendant who merely injured his victim.  This inequity was later remedied in England and in many jurisdictions of the United States by the creation of separate survival actions and actions for wrongful death.

     Survival actions, which are brought on behalf of the deceased, allow the deceased's estate to prosecute a case against the tort-feasor and typically grant the victim's estate as much authority to sue as the victim himself would have had if he or she had lived.15  Wrongful death actions, brought on behalf of the decedent's relatives, allow the deceased's family members to sue the tort-feasor to recover for the financial or emotional loss they themselves have suffered as a result of the decedent's death.  See Luda, 2 FSM Intrm. at 111.

     In those jurisdictions which have both a survival statute and a wrongful death statute, if a tort resulting in death occurs there are two separate avenues of recovery, one for each of the two distinct interests which have been invaded:  (1) a tort case, based on the interest of the deceased in the security of his or her person and property, which can be brought by the personal representative of the deceased's estate; and (2) a wrongful death action, based on the impairment of the interest of the deceased's spouse and next of kin caused by the death, which also may be brought by the personal representative of the estate.  See Runyon v. District of Columbia, 463 F.2d 1319, 1321 (D.C. Cir. 1972).  In other jurisdictions, those without survival statutes, the deceased's cause of action against his or her tort-feasor is extinguished with his death, and only a cause of action for wrongful death may be brought on behalf of the decedent's relatives.  See, e.g., Semler v. Psychiatric Inst. of D.C., 575 F.2d 922, 925 (D.C. Cir. 1978).

     The FSM Code contains a chapter regarding survival of causes of action.  See 6 F.S.M.C. 401(1).  However, this chapter does not provide for the general survival of causes of action following death.  6 F.S.M.C. 401(1) provides only for the survival of causes of action against the estate of a

[7 FSM Intrm. 432]

deceased tort-feasor.16  In other words, if Judy Primo had lived, and Defendant Refalopei had died, Judy Primo could have maintained a tort claim against his estate.  However, that same section of the FSM Code does not expressly provide for the survival of a deceased victim's cause of action in tort against his or her tort-feasor.

     Without a survival statute, the Court has no basis on which to award damages to Judy Primo's estate for Judy's own pain and suffering.  Unless the appropriate legislative bodies enact a survival statute,17 this Court will have no legal authority upon which to grant compensatory damages for a deceased tort victim's own pain and suffering, mental distress and lost wages.  This Court must apply the laws that congress has seen fit to pass.  Thus in this case, the only cause of action maintainable by the plaintiff is one for wrongful death.18

B.  Compensatory Damages for Emerenciana Primo
     Mrs. Primo seeks compensation on her own behalf for the "loss of love, affection, society, companionship, comfort, protection, care, guidance and/or support" of her daughter, as well as "the severe mental and emotional distress" caused by the witnessing of her daughter's suffering and death.

     According to the FSM's wrongful death statute:

(1)  The trial court may award such damages, not exceeding the sum of $100,000, as it may think proportioned to the pecuniary injury resulting from such death to the persons, respectively, for whose benefit the action was brought; provided, however, that where the decedent was a child, and where the plaintiff in the suit brought under this chapter is the parent of such child . . . such damages shall include his mental pain and suffering for the loss of such child, without regard to provable pecuniary damages.

6 F.S.M.C. 503(1) (emphasis added).  Judy Primo was seventeen at the time of her death.  Therefore, the two distinct types of damages sought by Mrs. Primo are both recoverable under the wrongful death statute.  Mrs. Primo is entitled to both damages for her provable pecuniary injury, and for her mental pain and suffering as a result of the loss of her child.  See Leeruw, 4 FSM Intrm. at 364-66 & n.6 (compensating parents of deceased child under section 503 for their pecuniary loss, including the value of probable support, services and other contributions that they reasonably could have expected if their

[7 FSM Intrm. 433]

child had lived out her full life expectancy, as well for their mental pain and suffering); Suka v. Truk, 4 FSM Intrm. 123, 130 (Truk S. Ct. 1989) (parent of deceased child entitled to recover pecuniary damages and damages for their own pain and suffering for the loss of their child).

     1.  Pecuniary Injury
     Mrs. Primo seeks compensation for the loss of "love, affection, society, companionship, comfort, protection, care, guidance and/or support" of her daughter.  6 F.S.M.C. 503 has been interpreted to limit damages for pecuniary injury to those pecuniary benefits which the decedent's next of kin might reasonably have been expected to have derived from the deceased if his or her life not been cut short . including the present value of future services, and the value of any services being rendered immediately before death.  See Leeruw, 4 FSM Intrm. at 365; Ychitaro v. Lotius, 3 TTR 3, 17 (Truk 1965).19

     Plaintiff has offered a variety of different measures of the pecuniary injury to her of the loss of her daughter's companionship and support.  At the hearing on damages, plaintiff proposed a figure of $74,000, based on the following components:  Judy's likely future contributions around the house, estimated at $31,700;20 Judy's probable future financial contributions to her mother's household, based on her promise to get a job, estimated at a total of $28,000 over the next seven years;21 Mrs. Primo's loss of the customary services of her daughter, estimated at $10,000;22 and $4,000 for funeral expenses.

     Plaintiff's estimates of Judy's likely future financial contributions are both duplicative and speculative.  First, these financial estimates assume that Judy would have continued to work full-time in her mother's home while holding a full-time job outside the home.  In addition, the salary figures and household contribution figures plaintiff offers are uncertain.  Judy did not have a job in Pohnpei before she left for Chuuk, and plaintiff did not submit persuasive evidence that Judy would have been successful in securing employment at the salary level estimated.  Plaintiff also did not submit evidence of the value of the household goods and services Judy typically consumed when living at home, which would be offset against the value of the services she contributed to the household.  See Leeruw, 4 FSM Intrm. at 365.  The Court therefore is without a sufficient factual basis to award pecuniary damages in the amounts sought.

[7 FSM Intrm. 434]

     However, the Court does find that an award of pecuniary damages is appropriate for the loss to Mrs. Primo of her daughter's future financial and emotional contributions to her household.  Mrs. Primo did testify that Judy contributed services in the home before she left Pohnpei, including cooking, cleaning, and gardening for the family, doing chores, and taking care of her younger brothers and sisters.  Although Judy left home to go to Chuuk, she expressed an interest in returning to Pohnpei while she was in the Chuuk State Hospital.23  After carefully weighing the totality of the evidence presented on this issue, the Court finds that there is a significant likelihood that if Judy's health had not been severely impaired, she would have returned to Pohnpei and continued to contribute her services to her mother's household.  For these reasons, the Court finds that an award of $10,000 is just compensation for Mrs. Primo's loss of future financial and emotional support from Judy, and for the loss of customary services that Judy could have been expected to provide to her, if Judy had survived.

     The funeral expenses plaintiff seeks on behalf of Judy's estate are properly recoverable by next of kin under the wrongful death statute.  See Leeruw, 4 FSM Intrm. at 366.  While plaintiff did not present any additional evidence to support or establish that $4,000 was in fact expended in connection with Judy Primo's funeral, this figure was not disputed by the defendant and seems reasonable to the Court.24  The Court will therefore award Mrs. Primo $4,000 in funeral expenses as part of her pecuniary damages.  The Court will also award Mrs. Primo $800 in reimbursement for the undisputed expenses she incurred when she travelled to Chuuk to be with Judy during Judy's hospitalization.25  The Court thus awards $14,800 in total pecuniary damages.

     2.  Mental Pain and Suffering
     Mrs. Primo suffered and continues to suffer over the loss of her daughter, and the manner in which Judy's death occurred was especially distressing to her.  As has been previously stated, awarding damages for pain and suffering is one of the most difficult tasks of the court, for the determination lies in the sole discretion of the trier of fact and no fixed rules exist to assist in the determination.  Epiti v. Chuuk, 5 FSM Intrm. 162, 169 (Chk. S. Ct. Tr. 1991).  See also Ngeruangl v. Ramangesawul, 3 TTR 403, 405 (Yap 1968) ("[t]here can be no real measurement of the value in dollars of pain and suffering.  It is a matter within the discretion of the court, and is based upon all surrounding circumstances").  The Court notes that there are several FSM cases dealing with mental pain and suffering awards for parents' loss of their children.  See Leeruw, 4 FSM Intrm. at 366 ($20,000 for loss of nineteen-year old daughter); Ludwig, 5 FSM Intrm. at 262 ($10,000 for parents' mental pain and suffering from loss of their two-year old daughter); Suka, 4 FSM Intrm. at 131 ($15,000 for each parent for loss of four-year old child).26  The Court has carefully reviewed the facts

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and reasoning in each of these previous cases, and in particular the reasoning of the Court in Leeruw, which involved the loss of a daughter approximately Judy Primo's age.  After careful consideration of FSM precedent and the circumstances present in this case, the Court finds that Mrs. Primo is entitled to an award of $20,000 for her mental pain and suffering.

III.  Punitive Damages
     Plaintiff's last cause of action seeks substantial punitive damages, based on allegations in the complaint that defendant's conduct was "grossly negligent" and amounted to "a reckless, wanton and willful disregard for the life, health, and well-being" of Judy Primo and for Mrs. Primo's own health and well-being.27

     The FSM wrongful death statute is silent on the availability of punitive damages in connection with a tort resulting in death.  The Court will therefore look to common law principles in assessing the availability of punitive damages in this case.

     This Court has held that punitive damages are recoverable for tortious acts where there is a finding that the tort was committed with actual malice, or deliberate violence. Elwise v. Bonneville Constr. Co., 6 FSM Intrm. 570, 572 (Pon. 1994) (punitive damages not recoverable for ordinary negligence); see also Meitou, 5 FSM Intrm. at 146 (awarding punitive damages where police officer maliciously assaulted plaintiff in course of arrest).  Punitive damages typically are given as an enhancement of compensatory damages because of the wanton, reckless, malicious and oppressive character of the acts complained of.  See, e.g., Ngirmekur v. Municipality of Airai, 7 TTR 477, 488 (Pal. 1976) (adding award of $5,000 in punitive damages to award of $2,025.50 in compensatory damages for wrongful eviction), aff'd, 8 TTR 231, 241 (App. 1982).  These damages are not intended to compensate plaintiffs, but to deter defendants and others from committing the same offense or a like offense.  Walker v. Kinney, 5 TTR 149, 152 (Mrns. 1969).  Punitive damages depend upon the existence of compensatory damages, and in the absence of an award of compensatory damages, punitive damages cannot be awarded.  See Semwen v. Seaward Holdings, Micronesia, 7 FSM Intrm. 111, 113 (Chk. 1995) (punitive damages are a derivative, not an independent cause of action); Urban v. Salvador, 7 FSM Intrm. 29, 33 (Pon. 1995) (punitive damages are normally an element of recovery on a recognized cause of action and are awarded as a supplement to actual damages); Walker, 5 TTR at 152 (where tort victim had suffered no compensatory or monetary damages, he was not entitled to punitive damages).

     Based on the complete record before the Court, there can be no question that Defendant Refalopei's acts constituted willful, malicious and deliberate acts of violence.28  The Court finds that

[7 FSM Intrm. 436]

substantial punitive damages are warranted in this wrongful death action to deter the defendant and others from committing similar acts in the future.29  Were it not for the defendant's contemptible and inhuman actions, Mrs. Primo would not have had to listen to her daughter repeatedly recount the horror of the attack inflicted upon her by the defendant, bear the anguish of watching her daughter's health deteriorate before her eyes, or witness her daughter's physical and emotional suffering and death.  Mrs. Primo has proven her entitlement to compensatory damages.  The Court now awards Mrs. Primo $50,000 in punitive damages.  In reaching this figure, the Court has taken into consideration as a mitigating factor the defendant's family's traditional apology, in view of the constitutional requirement that Court decisions shall be consistent with Micronesian customs and traditions, and with the social and geographic configuration of Micronesia.  FSM Const. art. XI, 11.

     To the extent that the fourth count of plaintiff's complaint seeks punitive damages on behalf of Judy Primo's estate, the Court finds that these damages are not awardable.  Because there is no statutory or other basis on which to award Judy compensatory damages, any claim for punitive damages on her behalf necessarily must fail.

CONCLUSION
     Having considered all the evidence presented in this case, the Court finds that plaintiff is entitled to a total award of $84,800.  This figure consists of $34,800 in pecuniary damages ($14,800 as compensation for her pecuniary injuries and $20,000 as compensation for her mental pain and suffering), and $50,000 in punitive damages.  Judgment shall be entered in favor of Emerenciana Primo and against Defendant Kornelio Refalopei in the amount of $84,800.

Footnotes:

1.  Plaintiff's complaint additionally sought damages from unknown defendants referred to collectively as "John Does 1-21."  Plaintiff never pursued these claims, and never informed the Court of the specific identities of these individuals. Accordingly, even though plaintiff never officially dismissed these defendants from the suit, the Court deems plaintiff's failure to pursue these claims as a waiver of those claims, and a de facto dismissal of these unnamed defendants.

2.  By his own admission, Defendant Refalopei received a copy of the summons and complaint on May 21, 1992.  Plaintiff moved the Court to enter Mr. Refalopei's default on August 4, 1992, and the Court entered his default on October 7, 1992. On March 1, 1993, five months later, plaintiff moved for default judgment.  Mr. Refalopei appeared for the first time in the case, pro se, on July 26, 1993, to ask for a continuance of the hearing on plaintiff's motion for default judgment, then scheduled for July 28, 1993.  Following the defendant's appearance, the Court went to extraordinary lengths to accommodate Mr. Refalopei and to encourage him to defend himself properly in this action.  These efforts included the granting of his numerous requests for continuances to permit him time to locate counsel; in chambers conferences, at which the Court explained to him the importance of his taking an active role in his defense; discussions with Micronesian Legal Services on his behalf in 1994; and direct correspondence from the Chief Justice on March 29, 1995, urging him to locate representation prior to trial.  Finally, on May 31, 1995, the date set for trial, Mr. Refalopei appeared through counsel, represented by the Public Defender's Office.

     After trial had been postponed, and after two and a half years had elapsed following the entry of default against him, on June 5, 1995, the defendant moved the Court to set aside its October 7, 1992 entry of default.  The Court denied the motion, finding that although no lawyer had formally appeared on his behalf, there was evidence that Mr. Refalopei had had access to legal advice since July 1993, and had had ample opportunity to move to set aside the entry of default before substantial prejudice could accrue to the plaintiff.
 
3.  According to Emerenciana Primo, Judy was only taken to the hospital once, when she was an infant.

4. Judy's autopsy report was prepared by doctors at Pohnpei State Hospital and verified by physicians at Tripler Hospital in Hawaii.  See Pl.'s Trial Ex. C at 52-57.

5. According to Judy Primo's autopsy report, these included deep upper vulva scars and a scar forming the initials "KUB" on her thigh.  See Pl.'s Trial Ex. C at 52.

6. Dr. Kapiteni Lusangulira testified that he is an internal medicine specialist, with a focus on lung, brain and heart conditions.  He has an M.D. and a Masters of Public Health in Epidemiology, and received his training in Zaire, France, England and the United States.  Dr. Kapiteni is a member of the Royal College of Medicine in London, and has passed the Exam for Foreign Medical Graduates in the United States.  He has spent seventeen years as a general internist, including time spent working for the World Health Organization in Tanzania and Zambia in tropical medicine, and is currently the State Internist at the Pohnpei State Hospital.

7. Dr. Benito Andres testified that he is a general surgeon at Pohnpei State Hospital.  He was educated and trained in the Philippines, where he received his M.D.  At the time he saw Judy Primo, he was employed by Pohnpei Health Services, and was the chief surgeon at Pohnpei State Hospital.  His specialty is general surgery, and he has been a practicing surgeon for twenty years.

8. Medical Officer Kiosi Aniol testified that he has been the State Director of Health in Chuuk State since February 1990.  Before that, he served as a consultant to the Division of Public Health in Chuuk State, with a specialty in communicable diseases.  He began his training as a medical officer in Guam, graduated from the Fiji School of Medicine as a Medical Officer, and later attended the University of Hawaii in a certificate program.  He has been a practicing medical officer for over 40 years, specializing in communicable diseases, and has attended numerous seminars on tuberculosis.
 
9.  Impulse Body Spray bears the following warning:

WARNING: FLAMMABLE. AVOID FIRE, FLAME OR SMOKING DURING USE AND UNTIL SKIN IS THOROUGHLY DRY. AVOID SPRAYING IN EYES. USE ONLY AS DIRECTED. INTENTIONAL MISUSE BY DELIBERATELY CONCENTRATING AND INHALING CONTENTS CAN BE HARMFUL OR FATAL. DO NOT APPLY TO BROKEN SKIN. IF RASH DEVELOPS, DISCONTINUE USE. CONTENTS UNDER PRESSURE. DO NOT PUNCTURE, INCINERATE OR STORE AT TEMPERATURES ABOVE 120 DEGREES F. KEEP OUT OF REACH OF CHILDREN. NOT FOR INTIMATE HYGIENE USE.

See Pl.'s Trial Ex. H.

10.  These categories of compensatory damages sought are set forth in detail in plaintiff's Motion for Default Judgment Against Defendant Refalopei (Feb. 26, 1993).  Plaintiff's claim for punitive damages is discussed later in this order and memorandum of decision.

11.  Plaintiff cites Ludwig v. Mailo, 5 FSM Intrm. 256 (Chk. S. Ct. Tr. 1992) in support of her argument that the wrongful death act does not limit "other damages," and that Judy Primo's own pain and suffering is compensable under that language. That case, however, was a common law tort case brought by a surviving plaintiff; it was not an action brought by a decedent's estate under the wrongful death act.

12.  The FSM's wrongful death statute was directly adopted from the Trust Territory Code, 6 TTC 201, et seq.  This Court is unable to locate any Trust Territory High Court decisions that construe the Trust Territory Code's identical language to permit survival actions to be maintained by a decedent's estate on a decedent's behalf, in addition to the recovery allowed under the wrongful death statute.

13. A tort has been described as a wrong for which the harm that has resulted, or is about to result, is capable of being compensated in an action at law for damages.  Prosser & Keeton on Torts 1, at 4 (5th ed. 1984).  The purpose of the law of torts is to afford compensation for injuries sustained by one person as the result of the unreasonable or socially harmful conduct of another.  Id. at 6-7.

14.  See, e.g., Meitou v. Uwera, 5 FSM Intrm. 139 (Chk. S. Ct. Tr. 1991) ("[p]laintiff is permitted to recover, as elements of compensatory damages, expenses incurred as a result of the injuries suffered, as well as damages for pain and suffering, and mental anguish and humiliation. . . . [and] medical expenses and loss of earnings").  Compensatory damages may also be awarded for permanent disfigurement or disability and loss of health, and loss of capacity to earn wages. See 22 Am. Jur. 2d Damages 28 (1988); Meitou at 145.

15.  These actions typically permit recovery of such items as wages lost by the victim after injury and before death, and any medical expenses incurred, and may also include compensation for pain and suffering.  Prosser & Keeton on Torts 126, at 942 (5th ed. 1984).  In some jurisdictions, if a tort-feasor injures his victim and then dies before his victim has an opportunity to sue him, a survival statute may permit a victim's cause of action to be prosecuted against the tort-feasor's estate.  As a result, in many jurisdictions a cause of action in tort may now be carried on if either the plaintiff or defendant dies.

16. That section reads as follows:

401.   Survival of claims after death of tort-feasor or other person liable.
 
(1)  A cause of action based on tort shall not be lost or abated because of the death of the tort-feasor or other person liable.  An action thereon may be brought or continued against the personal representative of the deceased person, but punitive or exemplary damages may not be awarded nor penalties adjudged in the action.
 
17.  Wrongful death statutes are part of the law of the states and are not national law.  Pryor v. Moses, 4 FSM Intrm. 138, 143 (Pon. 1989); Amor v. Pohnpei, 3 FSM Intrm. 519, 529 (Pon. 1988); Edwards v. Pohnpei, 3 FSM Intrm. 350, 360 (Pon. 1988).

18. Because this Court has found that plaintiff can only maintain a cause of action under the FSM wrongful death statute, the "medical, hospital and burial expenses and other damages" plaintiff's complaint seeks must be considered in the context of Emerenciana Primo's claim for compensatory damages under that statute.

19. The Trust Territory decisions cited in this opinion construe language identical to that of the FSM Code, and are instructive for that reason.  As explained in note 12, supra, the FSM Code's wrongful death statute was directly adopted from the Trust Territory Code.

20. Plaintiff's counsel estimated that it was probable that Judy would have provided financial and other support to her mother's household for another seven years. Mrs. Primo testified that her daughter had contributed approximately 60 hours a week of work around the house.  Plaintiff valued those services by multiplying the average number of hours Judy worked around the house each week by the minimum wage. The Court expresses no judgment as to the propriety of this calculation.

21. Plaintiff estimated her figure for lost wages by taking one-half of the $8,000 annual salary she anticipated that Judy would have earned each year until she reached the age of twenty-five.  Mrs. Primo explained that the $8,000 salary figure was based on job announcements that she had heard advertised on the radio.

22. Plaintiff cites this Court's decision in Leeruw as her basis for this estimate. See 4 FSM Intrm. at 365.

23. See Suka v. Truk, 4 FSM Intrm. 123, 131 (Truk S. Ct. Tr. 1989) (suggesting that the absence of a child from the home may be a mitigating factor in the award of damages for a parent's mental pain and suffering and loss of companionship).

24. Mrs. Primo testified that her family spent approximately $6,000 on Judy Primo's burial and grave.  She also testified that relatives of the defendant presented her father with approximately $2,000 toward Judy's burial expenses. See the additional discussion in the Facts section of this Memorandum of Decision.

25. Plaintiff did not pursue her original claim for medical and hospital expenses at trial.

26. Compare Skebong v. Trust Territory, 8 TTR 399, 401 (App. 1984) (affirming the trial court's award of $40,000 under 6 TTC 203, the FSM Code's predecessor statute, to parents for their pain and suffering in watching their five-year old daughter weaken and die).
 
27.  Plaintiff's Motion for Default Judgment against Defendant Refalopei (Mar. 1, 1993) sought $1,000,000 in punitive damages.

28.  On March 1, 1993, plaintiff filed a Motion for Default Judgment against Defendant Refalopei.  Plaintiff's motion was supported by two affidavits, one from Mrs. Primo, dated March 1, 1993, and one from Dr. Rexley Blake Hunton, who examined Judy in Chuuk, dated June 17, 1993, and filed on June 28, 1993.

     Dr. Hunton's affidavit states that during medical consultations Judy told him that her injuries had been inflicted in connection with a sexual assault:

6.  According to Judy Primo's statements the injuries had been inflicted in Chuuk State, by a gang of boys, who kidnapped and raped her.  They then tied her to a tree and cut her skin in several places with a knife, and sprayed a chemical from a proprietary preparation named "Impulse" into her mouth, throat and vaginal area.  After that they left her tied to a tree . . .

See Aff. Hunton para. 6.  Dr. Kapiteni testified at the Court's hearing on damages that Judy had given him a similar description of the circumstances of her assault during medical consultations.  The sexual nature of Judy's assault is also mentioned in the Pohnpei State Hospital Records, which were admitted into evidence at the hearing.  See Pl.'s Trial Ex. C at 12, 20, 52-57.

     While Dr. Hunton's affidavit was not put into evidence at that hearing, the defendant never filed a written opposition to plaintiff's Motion for Default Judgment, and never asked the Court to strike this affidavit from the record.  The Court notes that under FSM Evidence Rule 803(4), statements made for purposes of medical diagnosis or treatment are not excluded from admissibility by the hearsay rule. Accordingly, the Court takes judicial notice of the contents of Dr. Hunton's affidavit pursuant to FSM Evidence Rule 201.

29.  See Prosser & Keeton on Torts 2, at 9 (5th ed. 1984) ("[w]here the defendant's wrongdoing has been intentional and deliberate, and has the character of outrage frequently associated with crime, all but a few courts have permitted the jury to award in the tort action `punitive' or `exemplary' damages. . . .  Such damages are given to the plaintiff over and above the full compensation for the injuries, for the purpose of punishing the defendant, of teaching the defendant not to do it again, and of deterring others from following the defendant's example").