Wrongful Death Lawsuits
oBrought by survivors of the decedent on their own behalf seeking
damages representing survivors’ losses as a result of decedent’s death
oHeavily regulated by statute – e.g., Mo. Rev. Stat. 537.080 & 537.090
oWhat kinds of losses can a wrongful death P recover?
o Original rule – pecuniary/economic losses only
o Medical/funeral expenses, loss of support (what decedent
earned less what she would have spent on herself)
o Most states now allow at least recovery of pecuniary losses & loss
of services
o Loss of services = training, nurture, education, counsel,
housework, etc.
Additional possible recoveries for wrongful
death depending on the state:
• Loss of society – a slight majority of states also allow
▫ Loss of society = loss of companionship, comfort,
attention, love …
▫ Note Missouri (like many states) – loss of positive
attributes only
▫ How should we measure loss of society?
More additional possible recoveries
wrongful death depending on the state:
for
• Loss of inheritance – some states allow recovery here
too
▫ Loss of inheritance = the amount of $ P can show
decedent’s estate would have accumulated over and above
the value of financial support
▫ P must prove more than a mere expectancy of inheriting
▫ Must show “probably” would have inherited from decedent
and evidence from which amount of inheritance can be
calculated
▫ What kind of evidence?
Hedonic & Punitive Damages w/ Wrongful Death
Hedonic damages
o
Damages allowing survivor to recover for value of decedent’s loss
of life – i.e., recovery for intrinsic value of decedent’s life itself
o
General rule: Not available in wrongful death actions
o
Compare recovery of “hedonic” (aka “loss of enjoyment of life”)
damages in personal injury context
Punitive Damages
o
Jurisdictions split as to whether punitive damages are available in
wrongful death actions
o
Missouri – judges have read the statute to allow punitive damages
The Tort Reform Movement – additional issues
in limiting rightful position
Earlier we saw that damages that could be (relatively) easily measured
could also be limited:
◦ Liquidated damages/limited remedies clauses, judicial doctrines of offset
and avoidable consequences …
◦ Even so, could still conceive of P’s position after implementation of these
doctrines as “P’s rightful position”
With personal injury and wrongful death damages, limitations on
damages usually are statutory (although offset/avoidable consequences can
apply here too)
◦ To what extent do these statutes raise problems?
◦ What pushes legislatures to enact these limits?
Arbino – the statute & the arguments
Ohio law limited all “non-economic” (pain & suffering) damages to the
greater of $250,000 or 3X the economic damages up to a maximum of
$350,000 per person or $500,000 per occurrence
◦ Economic damages were not limited
◦ Limits on non-economic damages did not apply to severe injuries
Why would states limit awards of non-economic damages?
Did the limits raise problems – constitutional or otherwise – as the
plaintiff argued in Arbino?
◦ If you believe the limits are okay, is there a point at which the caps would
be too low – i.e., if the non-economic damage caps were set at $25,000 or
$100 and there was no exception for severe injuries? Or if ALL damages
were capped?
Missouri Medical Malpractice Statute
Mo. Rev. Stat. 538.210
◦ 1. In any action against a health care provider for damages for personal
injury or death arising out of the rendering of or the failure to render
health care services, no plaintiff shall recover more than [$350,000] dollars
for noneconomic damages irrespective of the number of defendants. …
◦ 3. In any action against a health care provider for damages for personal
injury or death arising out of the rendering of or the failure to render
health care services, where the trier of fact is a jury, such jury shall not be
instructed by the court with respect to the limitation on an award of
noneconomic damages, nor shall counsel for any party or any person
providing testimony during such proceeding in any way inform the jury or
potential jurors of such limitation.
Fate of Sec. 538.210
Missouri SCT found Sec. 538.210 to be an unconstitutional
infringement of the right to a jury trial under Missouri Constitution –
Watts v. Cox Medical Ctrs., 376 SW3d 633 (2012)
Mo Const. Art. I, Sec. 22(a) – Right to a jury trial as hereby enjoyed
shall be inviolate.
◦ MO SCT interprets this as meaning the right to a jury as it was understood
when the MO Constitution was adopted in 1820
Tort Reform Proposals & Remedies
Most common proposals for tort reform take the form of those listed at
pp. 128-29 n.1.
◦ Most of these proposals are remedial in nature.
◦ Why limit remedies as opposed to other aspects of the legal system
that are problematic? Who is likely to bear the result of those costsavings the most?
Tort Reform, Statutory Limits & the Collateral
Source Rule
Common law rule that holds:
◦ P may recover damages that include amounts for which P has already received
compensation from sources independent of and collateral to the defendant.
Limits on collateral source rule have been a prime target of tort reform battles.
◦ See NY statute’s mandatory offset for collateral source payments in personal
injury, property injury or wrongful death cases (Oden)
Reasoning for such statutory limits:
◦ P’s shouldn’t be allowed to recover twice for their injury – allowing damages &
collateral sources is double recovery
Judges don’t often find such limits unconstitutional (unlike the situations in
Arbino). But they can read statutory limits on collateral source pretty
narrowly.
◦ Note how the Oden court parses NY statute to see which of the benefits sources
is or is not an offsetting collateral source
Damages for Dignitary Torts
What is a dignitary tort?
◦ Torts that assault or impair our dignity but don’t necessarily cause
physical or pecuniary harm.
◦ Examples: Assault, Defamation, False Imprisonment, IIED, NIED,
Malicious prosecution, Invasion of privacy
◦ As with pain & suffering damages, difficult valuation issues arise
Levka v. City of Chicago
◦ P sued for emotional distress resulting from illegal search after
misdemeanor arrest.
◦ Awarded $50,000 for emotional distress but 7th Circuit remits to $25,000.
What could Levka’s attorney have done
differently to convince the appellate court of
her emotional distress?
Focus on plaintiff’s harm
◦ Emphasize particular frailty
◦ Reframe inferences court drew from evidence
◦ Bolster psychological evidence
Focus on defendant’s conduct
◦ Try to frame it as more outrageous than court characterized it