## Facts

- Michael Flannery, about 22 at the time of injury, suffered catastrophic injuries that left him permanently semi-comatose with no expected improvement.
- Medical evidence projected a roughly 30-year life expectancy from 1978 if he continued to receive good nursing and custodial care; his parents had provided such care and intended to continue.
- In a bench trial under the Federal Tort Claims Act, the district court awarded damages including past medical expenses, future nursing care, loss of earning capacity (wages and fringe benefits), and a separate amount for loss of ability to enjoy life.
- The district court did not award damages specifically labeled as pain and suffering, reasoning that Flannery’s nonsentient condition made such damages incapable of proof, while supporting a distinct award for loss of enjoyment of life.
- On appeal, the Fourth Circuit accepted liability but certified questions to the Supreme Court of Appeals of West Virginia concerning (1) recoverability of loss-of-enjoyment damages for a permanently semi-comatose plaintiff and (2) whether lost earning capacity should be reduced by hypothetical federal income taxes.

## Issues

1. Whether a plaintiff rendered permanently semi-comatose may recover damages for impairment of the capacity to enjoy life as a measure of permanency, even if the plaintiff cannot sense the loss.
2. Whether, in computing loss of future earning capacity, the fact finder must deduct federal income taxes that would have been owed on the lost income.

## Decision

- The court answered the first certified question yes: a permanently semi-comatose plaintiff may recover for impairment of the capacity to enjoy life even without awareness of the loss.
- The court answered the second certified question no: loss of future earning capacity need not be reduced by hypothetical federal income taxes.
- The court treated impairment of capacity to enjoy life as a component of permanent injury residuals rather than as pain and suffering.
- The court declined to require tax deductions because they would add speculation and complexity given changing tax laws and individualized variables.

## Legal Principles

- Future or permanent injury effects must be proven with reasonable certainty to support future damages.
- Future damages may include residual effects reducing the ability to function, future pain and suffering (when provable), impairment of earning capacity, and future medical expenses.
- Impairment of the capacity to enjoy life is a compensable, non-economic measure of permanency even when the plaintiff is permanently semi-comatose and cannot perceive the loss.
- Loss of future earning capacity is generally calculated without a mandatory deduction for federal income taxes.

## Conclusion

West Virginia law permits a separate compensatory award for loss of enjoyment of life for a permanently semi-comatose plaintiff as a measure of permanent injury, and it does not require reducing future earning-capacity damages by estimated federal income taxes.


Flannery v. United States, 297 S.E.2d 433 (W. Va. 1982)