Case: 3:24-cv-00029-MAK-GAT Document #: 131 Filed: 04/17/25 Page 1 of 45
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`IN THE DISTRICT COURT OF THE VIRGIN ISLANDS
`ST. THOMAS/ST. JOHN DIVISION
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`: CIVIL ACTION
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`: NO. 3:24-29
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`MEMORANDUM
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`v.
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`DR. LINDA CALLWOOD, et al.
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`TOM CARIVEAU
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`KEARNEY, J.
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` April 17, 2025
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`A California man held in the St. Thomas Jail as a pretrial detainee in early May 2022 died
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`of complications twelve days later from his disclosed hemophilia. The Jail’s medical professionals
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`could not find hospital care or renew his prescription medication, and the necessary pharmacy
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`provider did not provide the requested life-saving medication. The deceased Californian’s Personal
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`Representative sued in early May 2024 for damages under the Virgin Islands survival act and
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`wrongful death act claiming the Jail’s medical professionals violated the man’s civil rights through
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`deliberate indifference and the pharmacy professionals acted negligently. The Jail’s medical
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`professionals and outside pharmacy move for judgment on the pleadings on the wrongful death act
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`claims after we dismissed the survival act claims several weeks ago. We accept the plausible
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`pleaded facts as true at this stage of the case.
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`The Virgin Islands Legislature requires claims brought on behalf of the decedent which we
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`call survival actions to be filed within one year of the death. But a personal representative can
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`bring a wrongful death claim on the estate’s behalf (for identified out-of-pocket expenses or lost
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`income) and on behalf of identified beneficiaries within two years of death. We today address
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`whether the personal representative’s wrongful death claims on behalf of an estate are barred by
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`the one-year statute of limitations applying to survival actions and whether a personal
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`representative can proceed into discovery on a wrongful death deliberative indifference civil rights
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`claim.
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`We find no reason at this stage to enter judgment dismissing the personal representative’s
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`wrongful death claims on behalf of the estate against either the pharmacy professionals in
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`negligence or against the Jail’s medical professionals under the civil rights laws. The personal
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`representative may not recover punitive damages in a wrongful death negligence claim under the
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`Virgin Islands law. He also cannot proceed on behalf of unidentified beneficiaries or recover
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`expenses or damages beyond those permitted by the Virgin Islands Legislature or later petition for
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`reasonable attorney’s fees and costs if he prevails on his deliberative indifference claim. We grant
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`in part and deny in part the motions for judgment on the pleadings.
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`I. Alleged facts
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`Craig Vanausdal planned to leave St. Thomas on May 4, 2022 on a flight home to
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`California.1 United States Customs Officers and/or the Virgin Islands Police Department arrested
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`Mr. Vanausdal at the St. Thomas airport on an outstanding warrant for a 2004 marijuana arrest in
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`Pennsylvania and took him to the St. Thomas Jail as a pretrial detainee.2 Mr. Vanausdal told the
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`Jail’s intake personnel of his hemophilia requiring medication.3 Mr. Vanausdal brought expired
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`medication with him for the flight home (assuming he would be home in a few hours) but did not
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`have extra medication with him at the airport to treat his condition.4
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`Mr. Vanausdal remained in the St. Thomas Jail without medication to treat his condition
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`from his arrest at the Cyril E. King Airport on May 4 until the day he died on May 16, 2022.5 The
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`Virgin Islands officials designated Dr. Linda Callwood and Nurse Welma Freeman-Walter, R.N.
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`as responsible state actors for Mr. Vanausdal’s medical care during the twelve-day period he
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`remained in custody at the St. Thomas Jail.6 Dr. Callwood discarded the expired medicine Mr.
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`Vanausdal had with him (but could have used), neither Dr. Callwood nor Nurse Freeman-Walter
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`sent him to the hospital for emergency care, and corrections officers did not call for medical
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`assistance when Mr. Vanausdal’s condition deteriorated.7 Accredo, the specialty pharmacy
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`provider of Mr. Vanausdal’s hemophilia medication, did not send the necessary medication to St.
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`Thomas despite communicating with Dr. Callwood and Mr. Vanausdal’s girlfriend pleading for
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`medication to be sent to St. Thomas.8 Mr. Vanausdal died in the St. Thomas Jail on May 16, 2022.9
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`Tom Cariveau, as the personal representative of the Estate of Craig Vanausdal, deceased,
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`and purportedly on behalf of unidentified beneficiaries, sued Dr. Callwood, Nurse Freeman-
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`Walter, and Accredo Health Group, Inc. for civil rights violations and negligence arising from the
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`medical care Mr. Vanausdal received while detained in the St. Thomas Jail for twelve days in May
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`2022. Personal Representative Cariveau first sued on May 4, 2024 and amended his Complaint on
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`May 15, 2024.10 Personal Representative Cariveau sued “as Personal Representative of the Estate
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`of Craig Vanausdal, Deceased, and on behalf of decedent’s beneficiaries,” asserting both a survival
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`action and a wrongful death action under Virgin Islands statutes codified at 5 V.I.C. sections 76,
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`77. Personal Representative Cariveau did not identify the potential beneficiaries of a recovery for
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`wrongful death and their relationship to Mr. Vanausdal as required by the Virgin Islands
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`Legislature.11 Personal Representative Cariveau asserted common law negligence claims against
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`Accredo, deliberate indifference to Mr. Vanausdal’s serious medical needs in violation of the
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`Fourteenth Amendment under 42 U.S.C. § 1983 against Dr. Callwood, Nurse Freeman-Walter,
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`and two John Doe Corrections Officers, and a freestanding “Survival Claim” under the Virgin
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`Islands survival statute codified at 5 V.I.C. section 77.12
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`Accredo, Dr. Callwood, Nurse Freeman-Walter, the Bureau of Corrections Director, and
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`the Governor of the Virgin Islands moved to dismiss the amended Complaint.13 We denied
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`Accredo’s motion to dismiss the negligence claims asserted against it, denied the motion of Dr.
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`Callwood, Nurse Freeman-Walter, the Director, and the Governor to dismiss the civil rights claims
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`against them, but dismissed the survival claim with prejudice as barred by Virgin Islands’ one-
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`year statute of limitations on survival claims since Personal Representative filed the suit
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`approximately two years after Mr. Vanausdal passed away in his St. Thomas Jail cell.14 We entered
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`a Scheduling Order setting a discovery schedule and allowing Personal Representative Cariveau
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`to amend his complaint.15
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`Personal Representative Cariveau filed a second amended Complaint asserting the same
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`claims but only as against Accredo, Dr. Callwood, Nurse Freeman-Walter, and the John Doe
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`Corrections Officers.16 Personal Representative Cariveau again brought claims as the “Personal
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`Representative of the Estate of Craig Vanausdal, Deceased, and on behalf of decedent’s
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`beneficiaries.”17 Personal Representative Cariveau again did not identify the potential
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`beneficiaries of a recovery for wrongful death and their relationship to Mr. Vanausdal as required
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`by the Virgin Islands Legislature when bringing a wrongful death claim.
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`II. Analysis
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`Accredo, Dr. Callwood and Nurse Freeman-Walter now move for judgment on the
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`pleadings largely based on our January 31, 2025 Order and Memorandum finding the separate
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`“survival” claim barred by the one-year statute of limitations. They now argue the Virgin Islands
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`statute of limitations for survival actions bars all claims, including the wrongful death claims, and
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`the wrongful death civil rights action against the medical professionals cannot be maintained as a
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`matter of law.18
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`Both Accredo and Dr. Callwood and Nurse Freeman-Walter primarily argue the claims
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`brought by Personal Representative Cariveau through a survival action are time barred by the one-
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`year statute of limitations in 5 V.I.C. § 37(a). Accredo does not read the second amended
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`Complaint as asserting a wrongful death action and instead believes Personal Representative
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`Cariveau attempts to circumvent the one-year statute of limitations for survival actions by
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`“creative[ly] pleading” a wrongful death action. Accredo seeks judgment on the pleadings on both
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`the ordinary negligence and gross negligence claims as time barred. Accredo alternatively argues
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`if we consider the negligence and gross negligence claims as wrongful death claims, we should
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`dismiss the gross negligence claim as insufficiently pleaded and strike the demand for punitive
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`damages if we construe the claims against it under a wrongful death action.19
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`Dr. Callwood and Nurse Freeman-Walker move for judgment on the section 1983
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`deliberate indifference claim as time barred if asserted as a survival claim. Dr. Callwood and Nurse
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`Freeman-Walker move for judgment on the claims asserted against them through a wrongful death
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`claim arguing the claims are derivative of the time barred survival action and Personal
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`Representative cannot proceed on a wrongful death civil rights claim as a matter of law.
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`Personal Representative Cariveau opposes the two motions.20 We view the Personal
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`Representative’s pleaded facts and inferences to be drawn from them in the light most favorable
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`to him and we may not grant judgment on the pleadings for Accredo and Dr. Callwood and Nurse
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`Freeman-Walker “unless the movant clearly establishes that no material issue of fact remains to
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`be resolved and that he is entitled to judgment as a matter of law.”21 We agree in part as to the
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`inability to seek punitive damages under the wrongful death statute. But the remaining arguments
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`are not persuasive on this preliminary record.
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`A. We first distinguish survival actions and wrongful death actions including their
`statutes of limitations.
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`Craig Vanausdal died in the St. Thomas Jail in mid-May 2022. So, who has standing to sue
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`for the damages caused by his death? Is the alleged harm (not providing him with prescription
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`medication for his disclosed hemophilia or hospital care, resulting in his death) without a remedy?
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`The answer would have been yes over a hundred years ago under the common law. The United
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`States Supreme Court in 1913 held “[n]othing is better settled than that, at common law, the right
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`of action for an injury to the person is extinguished by the death of the party injured.”22 So, absent
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`some statute, the decedent, his estate, and his beneficiaries could not recover for a death caused by
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`another.23
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`The Virgin Islands Legislature abrogated this common law rule by creating a statute in
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`1921, amended several times over the years, most recently in 2001, allowing for both a survival
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`action and wrongful death action.24 The Virgin Islands Legislature allows for a survival action,
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`brought by the decedent’s personal representative, after the death of the injured party: “A thing in
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`action arising out of a wrong which results in physical injury to the person or out of a statute
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`imposing liability for such injury shall not abate ... by reason of the death of the person injured or
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`of any other person who owns any such thing in action. When the person entitled to maintain such
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`an action dies before judgment, the damages recoverable for such injury may include loss of
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`earnings and expenses sustained or incurred as a result of the injury may include damages for pain,
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`suffering and disfigurement, or punitive or exemplary damages, or prospective profits or earnings
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`after the date of death. The damages recovered shall form part of the estate of the deceased.”25
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`The Virgin Islands Legislature also allows for a wrongful death action where “the death of
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`a person is caused by the wrongful act, negligence, default, or breach of contract or warranty of
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`any person ... and the event would have entitled the person injured to maintain an action and
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`recover damages if death had not ensued, the person ... that would have been liable in damages if
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`death had not ensued shall be liable for damages as specified in this section notwithstanding the
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`death of the person injured ....”26 The Virgin Islands Legislature made its intent clear in the first
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`part of the wrongful death statute: “It is the public policy of the Territory to shift the losses resulting
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`when wrongful death occurs from the survivors of the decedent to the wrongdoer” and directed
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`the statute is “remedial and shall be liberally construed.”27 A wrongful death action “shall be
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`brought by the decedent’s personal representative, who shall recover for the benefit of the
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`decedent’s survivors and estate all damages, as specified in this section, caused by the injury
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`resulting in death. When a personal injury to the decedent results in his death, any action for the
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`personal injury shall survive, whether or not filed at the time of death, and shall not abate.”28
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`Lawyers may confuse the two claims following a death. The claims are not the same. They
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`are meant to “redress different wrongs” and “benefit different parties.”29 The survival action
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`“merely continues in existence the injured person’s claim after death as an asset of his estate, while
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`the usual wrongful death statute creates a new cause of action.”30 A wrongful death action is
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`brought by the decedent’s personal representative “who shall recover for the benefit of the
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`decedent’s survivors and estate.”31 Chief Judge Molloy (then serving on the Virgin Islands’
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`Superior Court) ably summarized the differences between the two actions: “the history of wrongful
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`death and survival actions makes clear that when someone dies two things happen. First, any
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`personal injury claims the person may have had abate unless there is authority extending the life
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`of those claims. Second, if a person’s death was caused by or resulted from someone else’s actions
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`or failure to act, then that person’s survivors can only recover if authority creates a cause of action
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`for wrongful death. And while wrongful death is a new claim—with its own elements that must be
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`alleged in a complaint and proven at trial—a survival claim is not really a claim. It is merely a
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`vehicle for pursuing someone else’s claims.”32
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`So, when Mr. Vanausdal died on May 16, 2022, Virgin Islands law allowed Personal
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`Representative Cariveau to timely bring two types of action: (1) a survival action under section 77
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`on behalf of Mr. Vanausdal to assert claims Mr. Vanausdal had before his death; and (2) a wrongful
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`death action under section 76 on behalf of Mr. Vanausdal’s survivors for their loss by reason of
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`his death and on behalf of Mr. Vanausdal’s estate for its loss. Personal Representative Cariveau
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`did not, in three iterations of his complaint, identify Mr. Vanausdal’s “survivors” or “all potential
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`beneficiaries” or their relationship to him as required by Virgin Islands statute.33
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`But Personal Representative Cariveau needed to move promptly. The Virgin Islands
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`Legislature defines different statutes of limitations for wrongful death actions and survival
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`actions.34 The statute of limitations for a survival action under Virgin Islands law is limited to one
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`year from the date of death.35 The statute of limitations for a wrongful death action under Virgin
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`Islands law is two years.36
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`We specifically addressed the survival action statute of limitations several weeks ago when
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`we dismissed Personal Representative Cariveau’s free-standing “Survival Claim.”37 The
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`Legislature through Section 37(a) provides “[i]f a person entitled to bring an action dies before the
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`expiration of the time limited for the commencement thereof, and the cause of action survives, an
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`action may be commenced by his personal representatives, after the expiration of the time and
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`within one year from his death.”38
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`We dismissed with prejudice Personal Representative Cariveau’s free-standing survival
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`action as untimely on January 31, 2025.39 We explained the Legislature through section 77 allows
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`for a survival action limited through section 37(a) requiring a survival action to be brought within
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`one year of death. We followed Chief Judge Molloy’s reasoning in Der Weer v. Hess Oil Virgin
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`Islands Corporation reading the survival statute under section 77 together with the one-year
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`limitations period in section 37(a).40 We agreed with Chief Judge Molloy’s reasoning section 37(a)
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`has the effect of a sliding statute of limitations; if a person dies exactly two years to the date of his
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`injury, section 37(a) extends the time to bring a survival claim for one more year, expanding the
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`two-year statute of limitations from two years to three years. But, if a person dies on the same day
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`as his injury, section 37(a) shortens the limitations period to one year from the date of death. Chief
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`Judge Molloy explained while this “may seem unfair, it has to be seen in the light of the common
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`law, which extinguished all tort claims upon death.”41 We also cited a 2023 case from the Superior
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`Court of the Virgin Islands applying section 37(a)’s one-year limitation period to bar as untimely
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`a survival action.42 We concluded Personal Representative Cariveau’s survival action is untimely
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`and dismissed the survival action with prejudice.
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`Dr. Callwood and Nurse Freeman-Walter did not move to dismiss the civil rights claims
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`against them as untimely. We previewed our concern with the timeliness of Personal
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`Representative Cariveau’s civil rights claims asserted through a survival action in our January 31,
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`2025 Memorandum.43 We noted section 37(a) may govern Personal Representative Cariveau’s
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`civil rights claims but declined to decide issues not presented to us.44
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`B. An unpleaded survival action is time barred.
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`Accredo and Dr. Callwood and Nurse Freeman-Walter now move for judgment on the
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`pleadings as to a survival claim we dismissed on January 31, 2025 and not included in the second
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`amended Complaint. We are unsure why they moved to dismiss unpleaded claims. The redline
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`version of Personal Representative Cariveau’s first amended Complaint (attached to his second
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`amended Complaint) deleted the “Survival Claims” and deleted citation to the survival action at
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`section 77 from the Prayer for Relief.45 The second amended Complaint seeks relief under the
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`wrongful death action authorized by section 76.46 On a Motion for judgment on the pleadings, we
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`accept as true all well pleaded allegations and draw all reasonable inferences in the non-moving
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`party’s favor.47 Personal Representative Cariveau does not plead a survival action in the second
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`amended Complaint. We do not see the issue.
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`Dr. Callwood and Nurse Freeman-Walter nevertheless reach to construe the second
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`amended Complaint as asserting the constitutional claims through a survival action barred by the
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`statute of limitations.48 Personal Representative Cariveau takes the bait; he argues the survival
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`claims are not time barred because the Fourteenth Amendment deliberate indifference claims have
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`a two-year statute of limitations applied to section 1983 claims. He argues the civil rights claims
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`are not “survival” claims under Virgin Islands law, but federal claims.49 And he also argues section
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`1983 can “support an estate’s survival claim.”50 He alternatively argues his deliberate indifference
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`civil rights claims may be asserted through a wrongful death action.51
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`Accredo also appears to construe the second amended Complaint as asserting only a
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`survival action, arguing the action is barred by the one-year statute of limitations and Personal
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`Representative Cariveau cannot “circumvent” the statute of limitations by “creative[ly] pleading”
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`a wrongful death action.52 Personal Representative Cariveau responded the second amended
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`Complaint “states valid wrongful death claims” against Accredo and the applicable statute of
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`limitations “for all wrongful death claims arising under [Virgin Islands] law” is two years.53 He
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`argues his negligence claims against Accredo “do not allege survival claims; they both allege
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`wrongful death causes of action.”54 Personal Representative Cariveau’s position now appears to
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`be asserting only a wrongful death negligence and gross negligence claim against Accredo having
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`disavowed a survival action.
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`Personal Representative Cariveau is bound by his pleading. He does not allege a survival
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`action. But he devoted over half of his opposition to challenging our January 31, 2025
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`memorandum and order dismissing his survival action as barred by the statute of limitations under
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`section 37(a) of the Virgin Islands Code. Personal Representative Cariveau continues to assert the
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`civil rights claims asserted on behalf of Mr. Vanausdal under section 1983 are subject to a two-
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`year statute of limitations to which section 37(a) does not apply. He argues we “should not apply
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`the section 37(a) tolling provision as if it were a statute of limitations,” inviting us to revisit the
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`issue.55
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`We considered and rejected the same arguments Personal Representative Cariveau made
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`regarding the application of section 37(a) in our January 31, 2025 Memorandum and Order and
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`dismissed his survival action. Personal Cariveau disagrees with our decision. He may exercise his
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`appeal rights in due course, but his Opposition to Dr. Callwood and Nurse Freeman-Walter’s
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`motion is not a vehicle to relitigate the dismissal of survival claims as untimely as decided on
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`January 31, 2025 without a timely motion to reconsider (now long overdue). We confirm, for
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`clarity, we dismiss the unpleaded survival action.
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`C. We grant in part and deny in part Accredo’s Motion requiring we strike the
`punitive damages claim under the wrongful death statute.
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`Accredo argues both negligence claims asserted against it are barred by the one-year statute
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`of limitations in section 37(a) applied to survival actions, we must dismiss the gross negligence
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`claim, and we must strike the punitive damages claim. We agree only as to striking the punitive
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`damages claim.
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`1. The Estate may proceed on negligence claims against Accredo.
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`Accredo argues Personal Representative Cariveau cannot “circumvent” the one-year
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`statute of limitations applied to survival actions through “creative[ly] pleading” a wrongful death
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`action. And, even if Personal Representative Cariveau now asserts a wrongful death claim, he does
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`not meet the pleading requirements of section 76(e) requiring “all potential beneficiaries of a
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`recovery for wrongful death, including the decedent’s estate, shall be identified in the complaint
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`and their relationships to the decedent shall be alleged.”56 Personal Representative Cariveau
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`asserted negligence claims against Accredo through a wrongful death action and disavowed a
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`survival action. We disagree with Accredo the statute of limitations for a survival action applies
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`to the wrongful death claims.
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`The Virgin Islands wrongful death statute imposes a pleading obligation on Personal
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`Representative Cariveau to identify “all potential beneficiaries of a recovery for wrongful death,
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`including the decedent’s estate,” in the complaint “and their relationships to the decedent.”57
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`Personal Representative Cariveau did not identify in the second amended Complaint all potential
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`beneficiaries of a wrongful death action and the relationship of those beneficiaries to Mr.
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`Vanausdal. Personal Representative Cariveau identified “the decedent’s estate” as “the Estate of
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`Craig Vanausdal, Deceased.” We find Accredo’s argument regarding pleading requirements as to
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`the identification of the estate without merit.58 But we agree Personal Representative Cariveau did
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`not meet the pleading requirements required by the Virgin Islands Legislature in section 76(e) for
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`pleading negligence claims on behalf of Mr. Vanausdal’s beneficiaries, if any. Personal
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`Representative Cariveau cannot proceed today on behalf of the beneficiaries subject to leave under
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`our February 20, 2025 Order to identify the beneficiaries and their relationships to Mr. Vanausdal
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`as required by the Legislature.59
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`2. Personal Representative Cariveau can proceed on the gross negligence claim.
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`Personal Representative Cariveau pleads claims for negligence and a separate gross
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`negligence claim against Accredo. Accredo moves for judgment on the separate gross negligence
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`claim. We allow this claim to proceed as to liability.
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`The Supreme Court of the Virgin Islands defined the elements of a claim for gross
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`negligence six years ago: “(1) the defendant owed plaintiff a legal duty of care; (2) the defendant
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`breached that duty in such a way as to demonstrate a wanton, reckless indifference to the risk of
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`injury to plaintiff; (3) and the defendant’s breach constituted the proximate cause of (4) damages
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`to plaintiff.” 60 The Supreme Court equated gross negligence with recklessness to “yiel[d] a simple,
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`bright-line rule” allowing for an award of punitive damages “on a successful claim of gross
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`negligence, but not on a claim of ordinary negligence.”61 “Gross negligence” under Virgin Islands
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`law, means “wanton, reckless behavior demonstrating a conscious indifference to the health or
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`safety of persons or property.”62
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`Accredo argues Personal Representative Cariveau has not and cannot plead a claim for
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`gross negligence because allegations of ordinary negligence of the second amended Complaint
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`“contradict” allegations of gross negligence, suggesting ordinary negligence and gross negligence
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`cannot be asserted in the same complaint. Federal Rule 8(d) allows for alternative pleading and a
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`party may assert as many separate claims it has “regardless of consistency.”63 And, under Virgin
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`Islands law, claims for ordinary negligence and gross negligence “each must be presented as an
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`independent claim.”64
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`Accredo then argues Personal Representative Cariveau did not plead the elements of a
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`gross negligence claim consistent with the Virgin Islands Supreme Court’s Brathwaite decision.65
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`Accredo points to conclusory allegations without facts to support grossly negligent conduct and
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`pleads nothing more than allegations of ordinary negligence.
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`We conclude Personal Representative Cariveau alleges sufficient facts to state a gross
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`negligence claim against Accredo. Accredo has the burden to “clearly establish” no material issue
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`of fact remains to be resolved and it is entitled to judgment as a matter of law. Personal
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`Representative Cariveau alleges Accredo knew of Mr. Vanausdal’s urgent need for his hemophilia
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`medication, failed to ship the medicine to St. Thomas by overnight mail, took no action to provide
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`the medication, and refused to provide the lifesaving medication because it had already mailed
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`medication to Mr. Vanausdal’s home in California on May 3, 2022.66 These alleged facts, taken in
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`the light most favorable to Personal Representative Cariveau as we must do today, sufficiently
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`state a gross negligence claim based on Accredo’s alleged wanton or reckless behavior
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`demonstrating a conscious indifference to the health and safety of Mr. Vanausdal. Accredo may
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`raise the issue on summary judgment after a fully developed record, but we cannot conclude based
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`on the allegations Accredo is entitled to judgment as a matter of law.
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`3. We strike the punitive damages demand.
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`Accredo also argues the Virgin Islands Legislature does not permit punitive damages in a
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`wrongful death action. Personal Representative Cariveau concedes punitive damages are not
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`“expressly mentioned” by the Legislature in section 76, but neither are punitive damages
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`“mentioned in most other statutes” and we should read section 76 broadly to allow for an award
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`of punitive damages.67
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`We combed Virgin Islands law; neither the Virgin Islands courts nor the District Court
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`applying Virgin Islands law have allowed punitive damages in wrongful death actions since the
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`2001 amendments to the wrongful death and survival action statutes. Judge Donohue directly
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`addressed this issue over ten years ago in Der Weer v. Hess Oil Virgin Islands Corp.68 Judge
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`Case: 3:24-cv-00029-MAK-GAT Document #: 131 Filed: 04/17/25 Page 15 of 45
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`Donohue reasoned because wrongful death actions did not exist at common law, the type of
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`recoverable damages are limited to those provided in the statute creating the cause of action.69
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`The Legislature through Section 76(e) defines the available damages to survivors of the
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`decedent and to the estate of the decedent in wrongful death actions. Damages to the survivors
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`include the value of lost support and services from the date of the decedent’s injury to his death,
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`surviving spouses may recover for loss of the decedent’s companionship, protection, and for
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`mental pain and suffering, children of the decedent may recover for loss of parental
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`companionship, instruction, guidance, and for mental pain and suffering, each parent of a deceased
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`child may recover for mental pain and suffering, and medical or funeral expenses may be recovered
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`by a survivor who paid such costs.70 The decedent’s estate may recover loss of earning of the
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`deceased from date of injury to date of death, loss of net accumulations beyond death reduced to
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`present value, and medical or funeral expenses charged against the estate.71
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`Punitive damages are not among the type of damages allowed in wrongful death actions
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`under Virgin Islands statute. Contrast the wrongful death statute with the survival action statute.
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`Section 77 allowing for survival actions defines the damages recoverable to the estate of the
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`deceased: “[w]hen the person entitled to maintain such an action dies before judgment, the
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`damages recoverable for such injury may include loss of earnings and expenses sustained or
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`incurred as a result of the injury may include damages for pain, suffering and disfigurement, or
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`punitive or exemplary damages, or prospective profits or earnings after the date of death.”72
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`Personal Representative Cariveau argues we should “ignore” Judge Donohue’s decision in
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`Der Weer, arguing Judge Donohue’s decision did not address a wrongful death action “rooted in
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`gross negligence” and contends Judge Donohue did not rely on Virgin Islands precedent and
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`Case: 3:24-cv-00029-MAK-GAT Document #: 131 Filed: 04/17/25 Page 16 of 45
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`instead relied on “outdated and superseded” California law making Der Weer “wildly off base.”73
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`We disagree.
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`Personal Representative Cariveau cites authority from the Virgin Islands territorial courts
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`analyzing the 2001 amendments by the Virgin Islands Legislature of the survival statute and
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`wrongful death statute. Before 2001, a plaintiff could bring either a wrongful death action or a
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`survival action, but not both.74 The Virgin Islands Legislature amended both the wrongful death
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`statute and the survival statute in 2001 to allow a plaintiff to plead and recover under both statutes
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`in one cause of action.75 But no one is disputing this; none of the Defendants argue Personal
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`Representative Cariveau could not bring both a survival action and a wrongful death action.
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`The wrongful death statute and survival statute identify specific damages available under
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`each action.