Family wins appeal for full $98.5M from state on behalf of Susan Cox Powell’s sons

The parents of Susan Cox Powell won an appeal to reinstate a $98.5 million jury verdict against the state of Washington on behalf of her sons, Braden and Charlie Powell.

Judith and Charles Cox sued the state for the pain and suffering of their 7-year-old and 5-year-old grandsons, who were killed by their father in 2012.

Jurors found the state Department of Social and Health Services negligent and awarded the Coxes the money in 2020.

Pierce County Superior Court Judge Stanley Rumbaugh reduced that by two-thirds, to about $32.8 million, a couple months later.

Rumbaugh said at the time it was a difficult decision and that: “It’s whether the size of the verdict in light of the evidence produced shocks the conscience of the court, and in this case it does,” The News Tribune reported.

A three-judge panel of Division II of the Washington State Court of Appeals reversed that decision in an opinion published Tuesday.

“The Coxes argue that the trial court erred in concluding that the jury’s damage award was obviously the result of passion or prejudice because nothing in the record shows that the jury was motivated by some malign influence or egregious impropriety at trial,” Judge Bernard Veljacic wrote for the unanimous panel. “We agree.”

The state has 20 days to ask for reconsideration or 30 days to ask the state Supreme Court for review.

The appellate judges agreed with the Coxes, the opinion said, that Rumbaugh “erred in concluding that the jury’s damage award was not within the range of substantial evidence in the record.”

There is “substantial evidence supporting a significant award of noneconomic damages based on the horrific and brutal deaths” the boys suffered, the opinion said.

‘Conscious pain and suffering’

Josh Powell killed the children during a supervised visit at his Graham-area rental home. He locked a DSHS-contracted supervisor out on Feb. 5, 2012, then attacked the boys with a hatchet and set fire to the house. Josh Powell also died.

He was being investigated at the time in the disappearance of the boys’ mother, Susan Cox Powell. She went missing from their Utah home in December 2009 and is presumed dead.

Attorneys for the Coxes argued at trial that an award of $5 million for each minute of the boys’ “conscious pain and suffering” would be appropriate, and DSHS didn’t argue for an alternative, the appellate opinion said.

“All the jury had was the evidence, their human experience, and the suggested range by the Coxes’ counsel,” Veljacic wrote in the opinion, signed by judges Anne Cruser and Bradley Maxa.

The last page of the appellate opinion says in part: “… there is nothing in the record unmistakably showing the jury’s verdict was based on some improper consideration instead of the legally sufficient evidence. Thus, in setting aside the damages verdict, the trial court intruded on the jury’s constitutional prerogative, and impermissibly based its decision on the size of the verdict and its own subjective reweighing of the evidence.”

Attorneys Ted Buck, Anne Bremner and Evan Bariault represented the Coxes at trial.

“Chuck and Judy Cox have been on a 12-year mission for justice for Charlie and Braden,” the attorneys said in a statement Tuesday. “This road has been long and emotionally exhausting for them, their family and those who cherished Susan, Charlie, and Braden. On behalf of Chuck and Judy, we appreciate the thoughtful consideration of the court of appeals, and hope that with this decision, the State will finally acknowledge its failures so that a better system may emerge to protect our children when in the custody of the state.”

The Department of Children, Youth and Families, the state agency that oversees child welfare today instead of DSHS, did not respond to a request for comment Tuesday about the opinion.