Wrongful Death Lawsuits – what are they?

1. Wrongful Death Lawsuits – what are they? • Brought by survivors of the decedent on their own behalf • Seek damages representing survivors’ losses as a result of decedent’s death • Heavily regulated by statute – e.g., Mo. Rev. Stat. 537.080 & 537.090 • Typically regulate WHO can sue and TYPES of damages available • We will focus primarily on “types of damages.”

2. What kinds of losses can a wrongful death P recover? • Original rule – pecuniary losses only • Medical/funeral expenses, loss of support (what decedent earned less what she would have spent on herself) • No state limits recovery to these losses anymore • Broader version of the rule – most states allow recovery of pecuniary losses & loss of services • Loss of services = training, nurture, education, counsel, housework, etc. • How should we measure the value of lost services?

3. 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 – why? • How should we measure loss of society? • Loss of inheritance – some states allow recovery here too • Loss of inheritance = the amount of $ that P can show decedent’s estate would have accumulated over and above the value of financial support • Should it be available – on what terms?

4. Hedonic & Punitive Damages w/ Wrongful Death Hedonic damages • Damages allowing survivor to recover for value of decedent’s loss of life – i.e., recovery for intrinsic value of life itself • General rule: Not available in wrongful death actions • Compare recovery of “hedonic” (aka “loss of enjoyment of life”) damages in personal injury context Punitive Damages • Jurisdictions split as to whether punitive damages are available in wrongful death actions • Missouri – judges have read the statute to allow punitive damages

5. 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?

6. 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?

7. Missouri Medical Malpractice Statute – just FYI • 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. • 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)

8. 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 cost-savings the most?

9. 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