Court of AppealsBenavides v. United States, 497 F.3d 526 (5th Cir. 2007). The 5th Circuit held “that 26 U.S.C. § 104( c) does not exclude punitive damages from the gross income of the survivors of a deceased worker when the wrongful death laws of the state in question do not limit recovery to punitive damages, even if, as here, some other law of the state, such as its Workers’ Compensation Act, might restrict wrongful death recovery to punitive damages” in affirming the decision of the district court. (This language is directed at the fact that Alabama only allows punitive damages in wrongful death cases.)
Court of Appeals
Howard v. Crystal Cruises, 41 F.3d 527 (9th Cir. 1994). This decision requires that spousal income be included in a determination of personal consumption by a decedent in a wrongful death action under the Death on the High Seas Act. The district court had applied a 30 percent personal consumption rate from the Cheit Table to reduce family income and the decedent’s household services by that percentage. The plaintiff widow argued that the 30 percent rate should not be applied to her income under the collateral source rule and that the 30 percent should not have been applied at all to the calculation of lost household services even though it was the plaintiff economist who introduced the Cheit 30 percent rate. The 9th Circuit upheld the district court’s calculation of damages as not exhibiting clear error.District Courts in the 9th Circuit (AK, AZ, CA, HI, ID, MT, NV, OR, WA, Guam, Northern Mariana Islands)
Beck v. State of Alaska, 837 P.2d 105 (Alaska 1992). This decision cites Portwood v. Copper Valley Elec. Ass’n, 785 P.2d 541, 542 (Alaska 1990) in defining the basis for Alaska recovery for wrongful death as “the probably value of the deceased’s estate had ne not prematurely expired less the actual value of the estate at death.” It affirmed Osborne v. Russell, 669 P.2d 550, 560 (Alaska 1983), that “the possibility that the deceased would later have acquired dependants toward whom he would have expended sums has been ruled by this court as to be to speculative a matter for the jury to consider.” It also ruled explicitly that future losses in death cases are to be reduced to present value.
Matter of the Estate of Pushruk, 562 P.2d 329 (Alaska 1977).
At issue was the desire of a mother of a decedent son to be declared
dependent on her son within the meaning of the Alaska Wrongful Death
Act even though she was not dependent on him for financial support. The
court rejected that concept, saying “dependency is determined according
to the facts and circumstances existing at the time of death.”
(Submitted by Paul Taylor.)
Maldonado v. Bailey, 2005 Alas. LEXIS 113 (Alaska 2005). This
action was brought by Bailey, as executor for the estate of Florian
Maldonado, to have the wrongful death award to his widow, Barbara
Maldonado, included as part of the estate. The court said: “Because
wrongful death proceeds
are not property owned by the surviving spouse at the time of the
death, they should not be included within the augmented estate under
elective share statutes,” reversing the decision of the trial
Osborne v. Russell, 669 P.2d 550 (Alas. 1983). The Alaska Supreme Court explains that with a single person with no dependents, it does not matter in Alaska whether an action is brought under Alaska's wrongful death action under a net accumulations to an estate approach or under Alaska's survival action under a net earnings approach. The court also said: “[T]he possibility that the deceased would later have acquired dependents toward whom he would have expended sums has been ruled by this court to be too speculative as a matter of law for a jury to consider. See Matter of Estate of Pushruk, 562 P.2d at 332.” (Revised listing submitted by Paul Taylor.)Arizona
Bailey v. Rose Care Ctr., 817 S.W.2d 412 (Ark. 1991). Hedonic damages were not allowed under the state death statute. This was before a new state law in 2001 that established the right of an estate to sue for "loss of life."
Durham v. Marberry, 356 Ark. 481; 156 S.W.3d 242 2004 Ark. LEXIS 179 (Ark. 2004). The Arkansas Supreme Court held that a 2001 Arkansas survival action Ark. Code Ann. § 16-62-101 (Supp. 2003) created a new element of damages in circumstances of wrongful death called “loss of life” and that an injured plaintiff did not have to have survived beyond the fatal injury to have the right to recover this loss element. The Court indicated that “loss of life” and “loss of enjoyment of life” are different elements even though “both are hedonic.” In doing so, the Durham court cited Sterner v. Wesley College, Inc., 747 F. Supp. 263 (Del. 1990) and Willinger v. Mercy Catholic Medical Center, 482 Pa. 141, 393 A.2d 1188 (1978) as drawing a distinction between “loss of life” and “loss of enjoyment of life.” Willinger has been interpreted as not allowing recovery for lost enjoyment of life in death cases in Pennsylvania and Sterner is one of the decisions that precluded an economist from offering hedonic damages testimony in Delaware. The Durham Court appeared to indicate that it would probably not allow expert testimony about the amount of damages to be awarded for “loss of life.” The Court cited its own decision in Clark & Sons v. Elliot, 251 Ark. 853 (1972), as indicating that “there is no hard and fast rule to determine compensatory damages for non-pecuniary losses.” Revised listing.
McMullin v. United States, 2007 U.S. Dist. Lexis 77933 ( E.D. Ark. 2007). This is a judicial ruling in a Federal Tort Claims Act (FTCA) case involving a medical malpractice wrongful death action. An economist was apparently not involved in this case. Judge Eisele held that the Arkansas Survival Action statute applies to medical malpractice in spite of some controversy in the Arkansas Courts about whether the Arkansas Medical Malpractice Act changed this application. This meant that Judge Eisele had to make an award under Ark. Code. Ann. § 16-62-101(b), which says: “In addition to all other elements of damages provided by law, a decedent’s estate may recover for the decedent’s loss of life as an independent element of damage (as modified in 2001).” Judge Eisele reviewed the decision in Durham v. Marberry, 356 Ark, 481 (2004) which is the only appellate interpretation of the 2001 addition to the Survival Act. He found no guidance in that decision. He indicated that he had found two U.S. District Court decisions in which interpretations of this section were made. In one of the two, the judge awarded $400,000, but spoke of the vagueness of the new statutory language. In the other, the judge had permitted the testimony of Dr. Stan V. Smith, but that judge did not find Smith’s testimony “persuasive” and awarded amounts of $81,068.91 and $71,463.91. Judge Eisele also discussed a 2006 Note by Ali M. Brady, “The Measure of Life: Determining the Value of Lost Years after Durham v. Marberry,” 59 Ark. L. Rev. 125 at some length. After extensive discussion, Judge Eisele awarded $600,000 for loss-of-life damages.One National Bank v. Pope, 2008 Ark. LEXIS 62 (Ark. 2008). This decision does not yet have addresses that would allow proper citations, but is important in determining the meaning of Arkansas’s new 2005 survival action language in Ark § 16-62-101(b) (Repl.2005), which says: “(b) In addition to all other elements of damages provided by law, a decedent’s estate may recover decedent’s loss of life as an independent element of damages.” The Court referenced its own decision in Durham v. Marberry, 356 Ark. 481 (2004) as maintaining a distinction between “loss-of-enjoyment-of-life damages” and “loss-of-life damages” as damages that are “pre-death” and damages that “only begin accruing when life is lost, at death[.]” The Court noted that in the Durham decision it had quoted Katsetos v. Nolan, 170 Conn. 637 (1976) as being instructive about how the Court viewed “loss-of-life” damages. The Court also indicated that the interpretation made in McMullin v. United States, 515 F. Supp. 2d 914 (E.D. Ark. 2007) of the Durham decision was correct in that “many types of evidence may be presented as evidence of loss-of-life damages.” The Court held that “an estate seeking loss-of-life damages pursuant to section 16-62-101(b) must present some evidence that the decedent valued his or her life from which a jury could infer and derive that value and on which it could base an award of damages.” There was no indication in the decision that the estate had tried to present an economic expert to place a dollar value on “loss-of-life” damages, nor that the Court would have felt it appropriate for the estate to have done so.
Barth v. B.F. Goodrich, 265 Cal.App. 2d 228 (Cal. App. 1968).
“It is the well established rule in most states, including California,
that the remarriage of a surviving spouse is not admissible on the
issue of damages in a wrongful death case (cites omitted) and this
court is neither inclined nor does it have the authority to change this
Bouley v. Long Beach Memorial, 2005 Cal. App. LEXIS 364 (Cal. App. 2005). The decision held that California statutes authorize a domestic partner to sue for damages in a wrongful death action. Submitted by David Jones.
Emery v. Southern California Gas Company, 72 Cal. App. 2d 821 (Cal. App. 1946). In an action for wrongful death, it was prejudicial error to exclude testimony of an actuary as to the amount of money needed, if invested at various rates of interest, to yield a particular monthly return for a period of time and be exhausted at the end of such time, and also to exclude annuity charts showing such information. “The annuity tables or charts should have been received in evidence, assuming that a proper foundation for their admissibility had been laid. When the damages are to be awarded for wrongfully causing the death of a person are compensation to designated relatives for prospective pecuniary loss, the gross amount should be reduced to its present worth.”
Fox v. Pacific Southwest Airlines, 133 Cal.App.3d 565
(Cal.App.1982). This decision makes it clear that the income or wealth
of a surviving spouse is not to be considered in making the personal
consumption deduction in a wrongful death action. Previous cases cited
to the same effect are: Gilmore v. Los Angeles Railway Corp.,
211 Cal. 192 (Cal. 1930); Johnson v. Western Air Express Corp.,
45 Cal.App.2d 52 (Cal.App.1941); Stathos v. Lemich, 213
Cal.App.2d 52 (Cal.App.1963); Webb v. Van Noort, 239 Cal.App.2d
472 (Cal.App.1966). (Submitted by Jerry Martin.)
Harrison v. Sutter Street Railway Company, 116 Cal. 156; 47 P. 1019 (Cal. 1897). In the wrongful death of a 69 year old man, the California Supreme Court said: “According to the Carlisle mortality tables, he had an expectancy or probable lease of life of a fraction over nine years and a half. He had dependent on him a wife and an adult unmarried daughter.” The Court reversed the jury verdict as excessive because: “The jury would seem to have proceeded upon the theory that the deceased’s expectancy of life would be fully realized, and that he would continue to the end with the same earning capacity as that possessed by him at the time of his death. . . Such a result does not accord with ordinary human experience. The deceased’s expectancy of life was not a certainty, but a mere probability. It is true that he might have lived even longer than the limit of such expectancy, but the chances were very much against it. He might also have retained his vigor and ability to labor to the last, but ordinary experience reaches that the weight of advancing years, after the age attained by the deceased, bears strongly against such a result.” The trial court judge had reversed the jury’s verdict and the California Supreme Court upheld the reversal.
Wiezorek v. Ferris, 176 Cal. 353; 167 P. 234 (Cal. 1917). The California Supreme Court reversed $10,000 award to parents in the death of a child on the grounds that: “There was no averment or proof of special damage, nor anything to show that the pecuniary value of the child to his parents would have been any greater than that of the ordinary boy of his age. For a number of years to come he would have been a source of expense to them; his pecuniary value to his parents after that could by no permissible rule of compensation have equaled the award made by the jury. Even conceding that the child would have been of help to his parents after minority, which is only conjectural, the verdict is still excessive.” (Submitted by Jerry Martin.)Colorado
Carrano v. Yale-New Haven Hospital, 279 Conn. 622; 904
A.2d 149 (CT 2006). Expert testimony was not provided to prove economic
damages. The defendant had appealed the trial court decision on the
basis that expert testimony was required to prove economic damages to a
“reasonable certainty.” The Connecticut Supreme Court said:
“We conclude that testimonial evidence is sufficient to establish
economic damages to a reasonable certainty. We further conclude,
however, that the evidence of economic damages in the present case was
insufficient because plaintiff failed to introduce any evidence, expert
or otherwise, concerning the decedent’s income taxes and personal
living expenses.” The court went on to say: “[T]he
decedent’s income consisted solely of disability payments, rather
than wages salaries and tips. Regardless of the validity of this claim
as it extends to other sources of income, we can perceive no reason to
conclude that the rate of taxation of disability income is within the
common knowledge and experience of the average juror. Second, although
the concept of self maintenance may be within the common knowledge and
experience of the average juror, personal living expenses are measured
by ‘the standard of living followed by a given decedent. .
.’ Because the amount of money necessary to feed, clothe and
shelter an individual will differ dramatically depending on the
lifestyle of the individual and the cost of living in the location in
which the individual lives, we conclude that a plaintiff seeking to
recover damages for the decedent’s lost wages or earning capacity
must present evidence of the decedent’s probable personal living
expenses.” Suggested by Steve Shapiro.
Chase v. Fitzgerald, 132 Conn. 461; 45 A.2d 789 (Conn.
1946). This decision involved the wrongful death of a homemaker. The
court said: “The rule for measuring damages resulting from death may .
. . be briefly summarized as follows: It is that sum which would have
compensated the deceased so far as money could do so for the
destruction of life’s activities as he would have done had he not been
killed, including the destruction of earning capacity, for such time as
he would probably have lived, but with due allowance to the effect
which the ordinary vicissitudes of life might have had upon his
continued employment or those capacities and, as far as destruction of
earning capacity is concerned, for the fact that a present payment will
be made in lieu of sums which, had he lived, would have been received
at periodic times in the future. In this state ‘damages due to the
incapacity of a wife by reason of a personal injury are recoverable by
her and not her husband.’ Hansen v. Costello, 125 Conn. 386,
390, 5 Atl(2d) 880.The decedent at the time of her death was not
gainfully employed and there is no evidence indicating that she was
likely thereafter to become a wage earner. In estimating damages
properly allowable for her death, loss of earning capacity might not be
a very material element to be considered. There remains, however, the
destruction of her capacity to carry on life’s activities as wife and
homemaker in the way she would have done had she lived. The
determination of just damages for the death of such a one requires a
‘fair consideration of all the evidence tending to show the condition,
capacity, ability and efficiency of the deceased in the discharge of
her domestic duties, not only as a laborer performing menial service,
but also as the housewife and head and administrator of
the internal affairs of her home. . . The best that can be done is to
the facts and circumstances of the woman’s life and service in these
capacities, her age, her health and strength, her expectancy of life,
and all that
may appear to enlighten the minds and aid the judgment’ of the trier in
reaching is decision. Bridenstine v. Iowa City Electric Ry. Co.,
Iowa 1124, 134, 165 N. W. 435. Suggested by Steven Shapiro.
Feldman v. Allegheny Airlines, Inc., 524 F.2d 384 (2nd Cir.
1975). This decision of the 2nd Circuit was decided under Connecticut
law involving the wrongful death of Nancy Feldman. The 2nd Circuit
said: “The trial judge found that Mrs. Feldman’s professional earnings
in her first year of employment would have been $15,040, and that with
the exception of eight years during which she intended to raise a
family and work only part time, she could have continued in full
employment for forty years until she retired at age 65. The judge
further found that during the period in which she would principally
occupied in raising her family, Mrs. Feldman would have
remained sufficiently in contact with her profession to maintain, but
increase, her earning ability. Pointing out that under Connecticut law
are to be based on ‘the loss of earning capacity,’ not future earnings
se . . . (382 F. Supp. At 1282)(emphasis in original), the judge
concluded that when a person such as Mrs. Feldman, who possesses
significant earning capacity, chooses to forego remunerative employment
in order to raise a family, she manifestly values child rearing as
highly as work in her chosen profession and her loss of the opportunity
to engage in child rearing ‘may thus fairly be measured by reference to
the earning capacity possessed by the decedent’ (382 F.Supp. at 1283).
Applying this rationale, the trial court judge made an award for the
eight year period of $17,044 per year, the salary which he computed
Mrs. Feldman would have reached in the year preceding the first
child-rearing year, but did not increase the amount during this
2nd Circuit found the trial court judge to be in error for valuing Mrs.
loss during the child bearing period at the level of her salary and
her loss of the ability to engage in child bearing and rearing was
a “loss of capacity to carry on life’s non-remunerative activities. The
Circuit held that the award for loss of earning capacity during the
child bearing years should have been 25 percent of her salary. The 2nd
recognized that the shift from loss of earning capacity to “loss of
of life’s activities” might result in an award similar to “that already
but concluded that the conceptual framework the court had just
was required by “Connecticut’s distinctive law of damages.” The 2nd
went on to point out that a deduction should be made for “the expense
self maintenance,” but that the trial court’s determination of the cost
Mrs. Feldman’s personal living expenses were too low at $2,750 per year
raised the amount to $4,000 per year, increasing at 3% per year.
by Steve Shapiro.
Milligan v. Gundeck, 2005 Conn. Super. LEXIS 1831 (Conn.
Super. 2005). This is a memorandum of the trial court judge, explaining
his reduction of the jury’s award of $1.3 million in economic damages
to the estate of Bernard Milligan to $943,784, his acceptance of $7.25
million in non economic damages, and his reduction of $6.25 million of
a $7.25 million award to
the widow, Lynette Milligan for loss of consortium. The discussion of
economic damages includes discussion of the testimony of Dr. Gary
Crakes, an economist, whose highest projection of economic damages was
Moffa v. Perkins Trucking Company, 200 F. Supp. 183 (D.Conn.1961). This decision interprets Connecticut law as it affects damages in wrongful death circumstances. The Court said: “Under our statute the cause of action which the executor or administrator is permitted to pursue is not one which springs from the death. It is one which comes to the representative by survival. The right of recovery for the death is one of the consequences of the wrong inflicted on the decedent. The cause of action is a continuation of that which the decedent could have asserted had he lived. . . . In measuring a person’s actual loss from a permanent and total destruction of earning capacity, whether by death or injury, there is an important factor which must be offset against probable net earnings. That factor is any savings in income tax liability which can properly be attributed to a cessation of earned income. . .For all practical purposes, the only usable earnings are net earnings after payment of taxes. . . The probable cost of future ‘personal living expenses’ must be deducted from the allowance otherwise made as reasonable compensation for the total destruction of his capacity to carry on life’s activities. Personal living expenses mean those expenses which, under the standard of living followed by a given decedent, would have been reasonably necessary for him to incur in order to keep himself in such a condition of health and well being that he could maintain his capacity to enjoy life’s activities, including the capacity to earn money. Personal expenses would not ordinarily include recreational expenses, nor that proportion of living expenses properly allocable to the furnishing of food and shelter to members of his family other than himself.” Suggested by Steven Shapiro.
Ferguson v. Valero Energy Corp., 2009 U.S. Dist. LEXIS 34888 (E.D. Pa. 2009). This is an opinion by Judge Mary A. McLaughlin interpreting Delaware’s Wrongful Death Act and Survivor’s Act as they apply to categories of damages. There is no discussion of an economic expert in the decision. The case involved the death of a single adult man who was living with, but not financially supporting his father. The father was suing for damages under the Delaware Wrongful Death Act. The decedent’s brother was suing for damages under Delaware’s Survival Act. The judge held that there was sufficient evidence that the decedent had provide household services to assist his father, but no evidence to suggest that the decedent had financially supported his father. The judge also said: “Delaware courts have consistently held that the Wrongful Death Act allows the recovery of that portion of the decedent’s lost earnings that would have been saved, over and above the decedent’s spending on his maintenance, and passed on to his estate.” The plaintiff’s had sought “any and all hedonic damages allowed for the loss of the decedent’s life and enjoyment of future life as permitted by Delaware law or as evidence of the pain and suffering and mental anguish” of the decedent. Judge McLaughlin’s discussion of hedonic damages under the Survivor’s Act relied heavily on the decision in Sterner v. Wesley College Inc., 747 F. Supp. 263 (D.Del. 1990). Under Delaware law, any claim for hedonic damages has to be as a part of pain and suffering and not as an independent category of damages “at least under circumstances like those in Sterner and here, where only a brief interval occurred between decedent’s injury and death. . . .The Court therefore predicts that if Delaware law were to allow for the recovery of hedonic damages for life’s pleasures and loss of enjoyment of life, then the Survivor’s Act would allow recovery of such damages only to the extent they were suffered for the period of time between the injury at issue and the decedent’s death.
Bould v. Touchette, 349 So. 2d 1181 (Florida 1977). This case was tried under earlier versions of Florida’s Wrongful Death and Survivor Statutes and the Florida Wrongful Death Act as of 1977 was not applied. The suit was brought by the elderly mother of a married couple killed in an automobile accident who was dependent on the couple for her sole support. The District Court of Appeals had suggested that the jury was legally bound to make a mathematically precise and minimal award, and had reduced the jury’s verdict reached at the trial court level. The Florida Supreme Court held that the verdict of the jury was within the reasonable range allowed by Florida law, reversing the District Court.
Brown v. Seebach, 763 F.Supp. 574 (S.D. Fla.1991). U.S.District Court, interpeting Florida law, held that hedonic damages are not available under the Florida Wrongful Death Act.Hiatt v. United States, 910 F.2d 737 (11th Cir. 1990). The 11th Circuit affirmed a 50 percent personal consumption reduction in a wrongful death action under Florida law, saying: “The record indicates that the Hiatt’s marriage, while never formally terminated, was far from ideal, with suspicions of infidelity and periods of separation. . . . The district court based its finding that Hiatt would have worked only to age 65 on evidence of his increasing interest in recreational activities and on an expert economist’s testimony based on work-life expectancy tables. The district court also heard evidence that Mr. Hiatt enjoyed a somewhat luxurious lifestyle such that it would be reasonable to expect his personal consumption rate to be well above average.”
Delta Airlines, Inc. v. Ageloff, 552 So. 2d 1089 (Florida
1989). Delta admitted liability and this short decision was exclusively
involved with damages
under the Florida Wrongful Death Act. The sole issue for the jury was
to determine the loss of prospective net
accumulations to the estate of a single decedent with no
dependents. Plaintiffs presented expert testimony of Dr. Irving
Goffman, an economist and Dr. Jonathan Cunitz, a financial consultant.
The defense presented Dr. G. Hartley Mellish, an economist. The
differences were large. Dr. Goffman projected lost accumulations at
$1,974,190; Cunitz at $2,829,688; and Mellish at $279,878. The
Florida Supreme Court cited Jones & Laughlin Steel Co. v.
Pfeifer, 462 U.S. 523 (1983), in refusing to take a position on how
inflation should be taken
into account and sent the decision back to the United States Court of
Appeals, who had certified the question about whether lost
accumulations should be included as a damage and how they should be
Robertson v. Hecksel, 2005 U.S. App. LEXIS 17201 (11th Cir. 2005). The mother of a 30 year old adult decedent brought an action for her own loss of support, loss of companionship, and pain and suffering resulting from the death of her son in a 42 U.S.C. § 1983 action on the basis of a deprivation of her Fourteenth Amendment right to a relationship with her adult son. This claim was dismissed by the trial count. The dismissal was affirmed by the 11th Circuit on the grounds that there is no constitutionally-protected liberty interest in a continued relationship with an adult child. The 11th Circuit pointedly did not minimize the value of the loss of such a relationship, but said: “[I]t is the province of the Florida legislature to decide when a parent can recover for the loss of an adult child. We will not circumvent its authority through an unsupported reading of the Fourteenth Amendment.”
Seaboard Coast Line Railroad Company, 270 So. 2d 359 (Florida 1972). This case holds that evidence of remarriages cannot be introduced into evidence in a wrongful death action in Florida. The case itself was interesting in that the surviving widow had been married three times between the death of her decedent husband and the trial. In dissent, Justice Dekle said: “The rapid fire of three successive marriages within four years after what may well have been a very successful one would really seem to demonstrate the gravity of the loss of a very fine husband and mate. It also may not, depending upon all of the evidence and the jury’s finding, but that is just the point; it is a matter for the jury to weigh all of the evidence in reaching its conclusion as to the extent of the loss.”
Synergy Gas Corporation v. Johnson, 627 So. 2d. 539 (Fla. App. 1993). In Florida, “net accumulations to an estate” must be based on evidence of the savings habits of a decedent. An economic expert had projected 6 percent of earnings would have been invested for the next 26 years in spite of the fact that the decedent had no record of savings. The Court of Appeals upheld other aspects of the jury’s verdict, but reversed the award for net accumulations to the estate.
Wadsworth v. Friend, 201 So. 2d 641 (Fla. App. 1967). The plaintiff in a wrongful death case was the 42 year old daughter who had suffered from rheumatoid arthritis since the age of 15 and had depended on her decedent mother for full support. The Florida Court of Appeals ruled that dependency depended on circumstances and must be determined by the facts in the case. It also ruled that Florida recognizes the collateral source rule and rejected a defense argument that $14,800 received from the woman’s ex-husband after the decedent’s death to pay off arrears in alimony should be treated as an offset.
Wilcox v. Leverock, 548 So. 2d 1116 (Florida, 1989). In answer to a certified question from the 11th Circuit Federal Court of Appeals, the Florida Supreme Court indicated that “net accumulations to an estate” based on passive earnings that did not result from the skill or effort of the decedent could not be recovered. In this case, the estate consisted of trusts that were inherited by the plaintiffs. The words “net accumulations” had first appeared in the Florida Wrongful Death Act of 1972. The Florida Supreme Court considered “net earnings” and “net accumulations” theories in some detail and concluded that it would be double recovery for investment income to allow future accumulations in addition to the transfer of the trusts to the survivors.Georgia
Childs v. United States, 923 F.Supp. 1570 (S.D. Georgia
1996). This decision involved the wrongful deaths of an adult woman, a
six year old girl and an unborn male fetus under the FTCA, subject to
Georgia law. The plaintiffs retained Dr. Robert D. Costen of Georgia
Southern University on behalf of the six year old girl and Dr. Francis
W. Rushing for the adult woman and male unborn fetus. The defense
retained Dr. David R. Kammerschen of the University of Georgia.
The decision is notable for its relatively detailed explanation of the
methodologies, assumptions, and data sources used by the three
economists, providing an assessment of their testimonies. It also
explains Georgia’s approach to wrongful death analysis in some detail.
It specifically held that lost earnings or lost household services were
too speculative to attribute to a young child or unborn fetus under
Georgia law. It also held, quoting another case, that: “[A]s to infants
of tender years, it is impossible to give evidence of the pecuniary
value of the probable loss, and therefore the question of damages for
loss on account of impairment of future earning capacity is left to the
sound judgement, experience, and conscience of the jury without any
proof thereof whatever...” It is also notable in that it rejected
David Kammerschen’s reliance on statistical workife expectancy tables
in favor of an age 65 retirement age because the women was an unmarried
mother who would have had to work.
Collins v. McPherson, 91 Ga. App. 347; 85 S.E.2d 552 (Ga. App. 1954). This decision involved the wrongful death of a seven year old female child. Describing the earlier decision of the Georgia Supreme Court in Betts Co. v. Hancock, 139 Ga. 198 (Ga. 1913), the Court said: “[I]t is impossible to give evidence of the pecuniary value of the probable loss, and therefore the question of damages for loss on account of impairment of future earning capacity is left to the sound judgement, experience, and conscience of the jury without any proof thereof whatever.” The Court went on to say: “The general rule is recognized, and adhered to, that the full value of the life of an adult, or of a minor child who has a known earning capacity and is actually producing income which may form the basis for calculation of the value of the life, or of an adult person who, although not gainfully employed, is rendering services capable of measurement in monetary terms, should be ascertained and reduced to present value. . . What is held here is merely that, when there is no evidence whatever on earnings or earning capacity, and where such evidence is not necessary to recovery, and where the jury has not been instructed by the trial court to determine the full value of the life of the deceased child, it is not in error for the trial court to . . . leave the full value of the life of the child to the enlightened conscience of an impartial jury, based on evidence of the child’s age, her precosity, the services rendered by her up to the time of her death, the circumstances of the family, and from experience and knowledge of human affairs on the part of the jury, and to fail to charge that any amount awarded the plaintiff as the full value of the life of her deceased daughter should be reduced to present value.”
Consolidated Freightways v. Futrell, 201 Ga.App. 233; 410 S.E.2d 751 (Ga. App. 1991). The Georgia Court of Appeals held that in a wrongful death action damages may be awarded for the full value of the deceased’s life. “Generally, these damages may be categorized as: (1) those items having a proven monetary value, such as lost potential lifetime earnings, income, or services, reduced to present cash value. . ., or (2) lost intangible items whose value cannot be precisely quantified, such as a parent’s ‘society, advice, example and counsel . . .’ as determined by the enlightened conscience of the jury.” The court found no error in the admission of the decedent’s veteran’s disability benefits in proving the economic component of the full value of his life. “Regardless of whether compensation paid to a veteran is characterized as arising from the services rendered by the decedent, or as compensation for a disability, the benefits constitute readily provable income which ceased because of his death. The trial court properly admitted this evidence.”
Elsberry v. Lewis, 140 Ga. App. 324; 231 S.E.2d 789 ( Ga. App.1976). This is an early case that defines what is and is not allowed under the provision of the Georgia Wrongful Death Act that allows recovery for the “full life of a decedent.” The Georgia Court held that it is well settled that Georgia does not allow recovery for solatium, citing Bullock County Hospital Authority v. Fowler, 124 Ga. App. 242; 183 S.E.2d 586 (Ga. App. 1971). “Solatium” generally refers to mental anguish caused by grief and emotional distress caused by injury to a relative. The Fowler decision specifies that the jury should determine the gross sum that the decedent would have earned to the end of his life if he had not been killed, reduced to its present cash value. However, the measure of damages does not include any allowance for the loss of a husband’s providing for “the wants and needs of his family,” “nor does it include a recovery for the mental suffering, grief or wounded feelings of the wife and children, or for solatium.” The Elsberry decision includes reference to the fact that “loss of society, comfort and companionship” by survivors is not compensable under the Georgia Wrongful Death Act.
Georgia Department of Transportation v. Baldwin, 2008 Ga. App. LEXIS 874 (Ga. App. 2008). In addition to other elements, this decision held that personal consumption did not have to be subtracted from the household services of a decedent wife. The court said: “Under OCGA § 51-4-2(a), Baldwin is entitled “to recover for the homicide of [his] spouse . . . the full value of the life of the decedent, as shown by the evidence.” “‘Full value of the life of the decedent, as shown by the evidence’ means the full value of the life of the decedent without deducting any of the necessary or personal expense of the decedent had [s]he lived.” OCGA § 51-4-1 (1). The Court went on to give the following example: “That the wife was a co-beneficiary of a meal she cooked for the household did not discount the value to the other members of the household of the time the wife spent cooking that meal.”
OB-GYN Associates of Albany v. Littleton, 259 Ga. 663; 386 S.E. 146 (Ga. 1989). The Supreme Court of Georgia held that recovery for emotional distress is not available in a wrongful death action, citing sections 19-7-1; 51-4-4; and 51-4-1. “Recovery for wrongful death in Georgia is limited to the full value of the life without reduction for necessary or personal expenses of a decedent and does not include recover for mental anguish or emotional distress.” The court also specified that “Georgia follows the so-called ‘impact rule,’ which requires that, there must have been actual bodily contact with plaintiff as a result of defendant’s conduct for a claim for emotional distress to lie.” This is important with respect to defining what Georgia means by allowing recovery for the “full value of the life” of a decedent..
Reliance Insurance Company v. Bridges, 168 Ga. App. 874; 311
S.E.2d 193 (Ga. App. 1983). This decision involved the death of a seven
year old female child. The court affirmed the decision of the trial
court, saying: “The charge given as to the measure of damages in its
entirety was as follows: ‘Now, if you should find that the death of
Tracey Bridges was the result of the negligence of the defendants or
any of them, then I charge you should award plaintiffs in an amount
equal to the full value of the life of Tracey Bridges as shown by the
evidence, without deduction for necessary or other personal expenses of
Tracy Bridges had she lived. Damages in a wrongful
death action are assessed from the deceased’s standpoint, not from the
plaintiffs.’ The true value of the measure of damages is the value of
of Tracey Bridges to herself had she lived.” The court went
on to add that: “In arriving at such amount it is the ‘enlightened
consciences’ of the jury which will leald to the fixing of the damages,
child is too young to have provided a basis for otherwise determining
a financial loss to the plaintiffs.”
Savannah Elec. Co. v. Bell, 124 Ga. 663, 688 (53 SE 109). “The statute [Georgia Wrongful Death Act] is . . . one that is intended to inflict a punishment upon wrongdoers who bring about the death of a human being by negligence. Lord Campbell’s act and various statutes based upon it area nothing more than a method of punishing negligence by civil action. The multiplication of fatal accidents and the practical impossibility for securing the punishment of mere carelessness by means of criminal proceedings were the causes that brought about the passage of Lord Campbell’s act as well as those which have followed it. . . This is nothing more than a legislative imposition of a penalty upon the person who causes the death of another by negligence, the penalty to go to the person injured. While such legislation is punitive so far as the defendant is concerned, it is compensatory so far as the plaintiff is concerned; but exact compensation for the loss sustained is not the primary object of the statute, though in any cases this result may be brought about . . . The damages recovered by the plaintiff are intended incidentally to compensate her for the loss she has sustained, but primarily to punish the defendant for its negligence in bringing about the death of a human being.”
Woods vs. Anderson, 145 Ga. App. 492; 243 Ga. App. 492 (Ga. App. 1978). This case involved the wrongful death of a six and a half year old. An economic expert had based his calculation of losses based on a high school graduate education in spite of the fact that the child’s mother was a school teacher and the child’s father was a lawyer. The expert had based his projection “partly upon United States Department of Labor and Bureau of the Census research statistics concerning average wages of people in various categories of age, education, occupation, etc. The Court of Appeals affirmed the decision of the trial court to admit this testimony.
Montalvo v. Lapez, 884 P.2d 345 (Hawaii 1994). The Supreme Court of Hawaii ruled that hedonic damages in a personal injury are recoverable, but used Hawaii's Rule 702 to reject expert testimony by Louis Rose about hedonic damages based on the willingness-to-pay methodology.
Ozaki v. Association of Apartment Owners of Discovery Bay, 954 P.2d 652 (1998). Louis Rose had projected future lost earnings, but had not been allowed to testify. This Intermediate Court of Appeals decision reversed the trial court and allow admission of that testimony. Under the Hawaii survival action, evidence of lost enjoyment of life should have been admitted. Expert testimony on loss of the enjoyment of life was not at issue. Dr. Rose had not provided such testiomony in this case.
IdahoPfau v. Comair Holdings, Inc., 135 Idaho 152 (Id. 2000). The Idaho Supreme Court ruled that loss of accumulations to an estate is not recoverable under the Idaho Wrongful Death Act. The Court said: “[W]e decline to extend the measure of damages to include loss of inheritance, loss of net accumulation and loss of earnings because these damages are too speculative for purposes of ascertaining the pecuniary loss to the beneficiary. This Court recognizes the speculative nature of support damages, and does not preclude recovery solely on that basis. . . However, a measure of loss of inheritance is not only speculative in determining the numerical amounts but is compounded by the limitless number of contingencies that would preclude a beneficiary from receiving an inheritance from the decedent if the decedent had lived out his or her natural life. Because there is a legal right to support by parents of their minor children, and a legal right of parents to the earnings and services of a child, a court need not determine whether a child or parent would receive such benefits absent the premature death. We presume damages based on those legal rights. There is no corresponding legal duty of the decedent to leave the beneficiary an inheritance. Therefore, a court would not only have to determine the speculative amount of those benefits, but would also have to determine whether the decedent would have accumulated or increased an estate, the nature of the family relationship, and the probability that the decedent would have left some or all of the increased value of the estate to the beneficiary.”
Bullard v. Barnes, 102 Ill.2d 505 (Ill. 1984). The Illinois Supreme Court allowed recovery for “companionship, comfort, instruction, guidance, counsel, training and support” of one family member for another in a wrongful death action. In the death of a minor child: “juries must be instructed not only to assign a dollar value to the loss of the child’s society, but also to arrive at a figure, based on the evidence presented to them, which represents expenditures the parents would have been likely to incur had the child lived. Jurors should be instructed to deduct these projected child rearing expenses from any award for loss of society and any proved loss of income.”
Gonzales v. City Wide Insulation, 1990 U.S. Dist. Lexis 6360. U.S. District Court, interpreting Illinois law, ruled that the Illinois Wrongful Death act does not provide for the recovery of hedonic damages.
Kaufman v. Cserny, M.D., 856 F. Supp. 1307 (S.D. Ill. 1994). This decision held that damages for loss of enjoyment of life (hedonic damages) is allowed in an Illinois survival action, but not in an Illinois wrongful death action. The decision explains that an Illinois survival action in a wrongful death context applies from the moment of injury to the moment of death. The court held that loss of enjoyment of life is allowed under the survival action for that period of time.
Klawonn v. Mitchell, 105 Ill. 2d 458; 475 N.E.2d 857 (Ill. 1985). The Illinois Supreme Court held that defendants were not entitled to a jury instruction that tort awards are not subject to federal or state income taxes. The court said: “In our opinion proof of pecuniary loss, not simple under the best of circumstances, should not be rendered more complex by injecting the question of income tax or other extraneous factors.” Since the legal action in question involved both wrongful deaths and personal injuries to surviving injury victims, the decision applies to both types of actions.
Patch v. Glover, 618 N.E.2d (Ill.App.1 Dist. 1993). An Illinois Court of Appeals upheld a trial court decision not to admit hedonic damage testimony about loss of society Stan V. Smith. The court said: “The type of evidence Smith offered would, out of necessity, provoke an extended line of inquiry into Patch’s relationships with family members and friends, who are not entitled to recover under the [wrongful death] act, so that their loss of society could be factored out of the gross value of the loss of society. All of which would serve no purpose other than to distract the jury from its real task which is to apply their common sense to assess the value of society lost by the plaintiff and the children. Moreover, Smith’s testimony on this issue would mislead the jury into believing the false notion that the distinct and personal relationship that one has with his wife and children has commercial value which can be determined by a comparison to the value that society places on the non-monetary contributions of the statistically average person. It is our belief that the type of evidence that plaintiff sought to introduce through Smith’s testimony would be the antithesis of a reasonable and practical consideration of the fair and just compensation for the loss of society suffered by the spouse and next of kin of a decedent under the peculiar facts of any given case.”
Pfeifer v. Canyon Construction Company, 253 Ill.App.3d 1017 (Ill. App.1993), it was made clear that remarriage did not terminate a claim for financial support from a decedent spouse. The Pfeifer Court strongly distinguished between lost financial support, which is clearly tangible, and lost consortium, including household services, which is not.
Simmons v. University of Chicago Hospital and Clinics, 162 Ill. 2d 1; 642 N.E.2d 107 (Illinois 1994). The Illinois Supreme Court noted that remarriage terminates a claim for a surviving spouse for loss of consortium, citing among other cases not listed at this site Dolan v. Gawlicki, 628 N.E.2d 1188 (Ill.App. 1994). At issue in this case was a loss of consortium claim due to the death of a child. The Simmons Court found that the subsequent birth of two children to the parents of the decedent child did not terminate the parents loss of consortium claim with respect to the decedent child, saying: “Defendants also argue that this conclusion is contrary to the principles applicable to the analogous area of loss of consortium. Defendants note that appellate decisions have held that evidence of a subsequent remarriage is relevant in loss of spousal consortium claims and, in fact, terminates the right of a widower or widow to recover for loss of consortium. . . We disagree and note that the relationship between parent and child is different from that of husband and wife. The parent-child relationship is not replaceable and is not limited to the society of only one child. Every child is unique, and the loss of society a parent suffers upon a child’s death cannot be replaced with the society of a child subsequently born.Watson v. Fischbach, 54 Ill. 2d 498; 301 N.E.2d 303 (Illinois 1973). Ruled that wife could not use her prior married name in wrongful death action if she had since remarried and taken her new husband's name. The issue in this case was whether she was entitled to present herself to a jury with her previous married name to avoid the inference that she had remarried. The court ruled that she could not misrepresent the truth of her new name to a jury. “We believe the judicial process in its search for truth need not resort to the condonation of perjury to accomplish its objective.”
Boland v Greer, 409 N.E.2d 1116 (Ind.
1980) and 422 N.E. 2d 1236 (Ind.1981).
The first decision is the decision of the Indiana
Supreme Court. The second citation is a dissent from a
majority opinion to transfer the case. Both discuss the “lost
investment theory” for awarding damages to parents based on Wycho v.
Gnodtke, 361 Mich. 331 (1960) in Michigan. This theory treats parental
expenditures on a child up to the date of the
child’s death as an “investment” in the child that is recoverable
to the parents. The majority decision expresses sympathy for this
theory, but indicates that it is contrary to Indiana law.
Elmer Buchta Trucking, Inc. v. Stanley, 744 N.E.2d 939 (Indiana 2001). This decision reverses both the trial court and Court of Appeals and remands for a new trial. In 1965, the Indiana legislature had adopted a modification of its Wrongful Death Act, with new language saying that “damages shall be in such an amount as may be determined by the court or jury, including, but not limited to, reasonable medica, hospital, funeral and burial expenses, and lost earnings of such deceased person resulting from said wrongful act or omission.” The plaintiff argued that this language required no reduction for personal consumption. The Indiana Supreme Court discussed the history of wrongful death acts in the state of Indiana, starting from the first act in 1852 and determined that the intent of the act was focused at the right of pecuniary recovery of survivors not the estate of the decedent. Thus, it ruled that the personal consumption of the decedent should have been considered and remanded to the trial court for a new trial. George Launey was the economist for the plaintiff. (Submitted by Ann Neff.)
Frye v. Akron, 759 F. Supp. 1320 (N.D. Ind. 1991). This decision held that plaintiffs in a Section § 1983 action involving a wrongful death “may properly claim as an element of damages the decedent’s loss of enjoyment of life.” However, the court held that Indiana law applied to claims by the decedent child’s surviving parents for their own pain and suffering occurring as the result of their child’s wrongful death. Section § 1983 did not apply to the decedent’s parents because they were not claiming that their own constitutional rights were violated. The Indiana Wrongful Death Act did not allow recovery for the pain and suffering of the parents resulting from the death of the child. There was no discussion in this decision about whether an economist could testify about the hedonic damages of the decedent.
Lustic v. Hall, 403 N.E.2d 1128 (Ind.App. 1986). Wrongful death damages must be based on actual conditions and actual contributions made by decedent prior to his death.
Southlake Limousine and Coach, Inc. v Brock, 578 N.E.2d 677 (1991). Indiana's 3rd District Court of Appeals ruled that the trial court decision to admit hedonic damage testimony by Stan V. Smith was improper and should not be allowed in a retrial. The court said: “Expert testimony on the value of life should not have been admissible in a wrongful death case. It could not provide a measure of the loss of love and affection to the surviving spouse nor of the loss of parental guidance and training to the surviving children. Professor Smith even testified to that effect. The most Professor Smith could do was place a value on the life of the decedent. His testimony regarding the loss felt by survivors was inadmissible speculation.” This case also contains very interesting commentary about testimony by economists about annuities.Wallace v. Woods, 149 Ind. App. 257; 271 N.E.2d 487 (Ind. App. 1971). The Court of Appeals of Indiana rejected the parental investment theory in the death of a minor child, though describing the appellant’s argument as based on “vast research” and presenting “an interesting question.” The Court upheld the existing standard for recovery as “value of the child’s services from the time of death until he would have attained his majority, taken in connection with his prospects in life less the cost of his support and maintenance during that period, including board, clothing, schooling and medical attention.” This would include “the pecuniary value of all acts of kindness and attention that the deceased child might reasonably be anticipated to render until its majority.” The appellant parents had argued that they should be allowed to recover the cost of raising the child. The rejection of the parental investment theory in Wallace was cited favorably by the Indiana Supreme Court in Boland v. Greer, 422 N.E.2d 1236 (Ind. 1981)
Adams v. Deur, 173 N.W.2d 100 (Iowa 1969). This decision held that lost earnings for the purpose of calculating lost financial support and lost accumulations to an estate in a wrongful death action should be based on after tax income. “It is to us self-evident future probable taxes are no more speculative than any other element a trier of the facts is permitted, if not required, to consider in the determination of wrongful death damages. Reference to a relatively few factors will suffice: Determination of anticipated living costs; life expectancy; future earnings or income; prospective value of the dollar; and expected interest rates. . . Mindful of the foregoing, we find that if loss of estate damage is determined in light of estimated income, after taxes and other attendant recognized factors, the result will more nearly effectuate actual loss. State otherwise, if plaintiff administrator’s present value of estate loss were to be calculated, exclusive of probable future tax obligations, the resultant award would be an amount on which decedent would have had to pay taxes if received as wages or other income, thus allowing recovery to plaintiff of more than was lost.
Beems, Adm’r, v. The C., R.I. & P.R. Co, 58 Iowa 150; 12 N.W. 222 (Iowa 1882). This decision held that it was in error for the trial court to have admitted testimony about the number of children a man had in making an award to the estate of a decedent in a wrongful death action, saying: “It is competent to show what a party earned during his life, as that has bearing upon the probable loss to his estate by his death. It may also be competent to show that the deceased was a married man, for from observation and experience it may be fairly assumed that a married man will be more frugal and industrious, and hence will accumulate a larger estate, than a single man. But observation and experience do not teach that one’s income is likely to increase in the same ratio as the number of his children. There is no rule of law under which the estate of a deceased father of a dozen children can properly recover on account of his death, more than the estate of such a father of one child or none. The real question in this case is, what was the value of the deceased’s life to his estate? The number of his children can have no legitimate bearing upon that question, although it may furnish the ground of an earnest appeal to the sympathy of the jury, and we have no doubt that this was the real purpose for which such testimony is offered.”Brophy v. Iowa-Illinois Gas and Elec. Co, 119 N.W.2d 865 (Iowa 1963). This decision involved an appeal of the award of $30,000 in the wrongful death of a pipelayer, which the Iowa Supreme Court upheld. The Court said: “The measure of damages in cases of this kind is the present worth or value of that which the decedent would reasonably be expected to save and accumulate as a result of his efforts if he had lived out the natural term of his life, to which may be added interest on reasonable funeral expense for such time as it was prematurely incurred. . . .This rule is vague, uncertain and speculative, if not conjectural, but it is the best which judicial wisdom and experience have been able to formulate. No evidence is possible of the time deceased would have lived but for the injury complained of. Had he avoided this injury, death may have met him the next day, week or year in some other form. In business he might have become a phenomenal success and accumulated millions or he might have lived to old age and died a pauper. From a man of good habits, prudence and industry, he might have become a spend-thrift or a tramp, or if a man of dissolute habits he might have reformed into an efficient and prosperous citizen. But the demands of justice will not tolerate the taking of human life by the tort of another without the wrongdoer answering therefore in damages, and the rule we have stated is the one which has been devised for that purpose. The difficulty in its practical application lies in the fact that it calls for an estimate which must be arrived at by a balancing of mere probabilities which a jury must infer from the age, character, habits, condition, education, employment, surroundings and apparent capacity of the deceased.”
Haumersen v. Ford Motor Co.,
N.W.2d 7 (Iowa 1977). A jury had awarded loss of accumulations to
the estate of a seven year old boy in the amount of $100,000. An
economist the court described as well qualified (but did not name) had
projected a maximum value of the estate of $108,343, which the
economist described as a “conservative maximum estimate.”
The Iowa Supreme Court affirmed the amount of the award.
Iowa-Des Moines Nat’l Bank v. Schwerman Trucking Co., 288 N.W.2d 198 (Iowa 1980). Wrongful death awards in Iowa are not subject to reduction for federal estate taxes because the accumulation period runs only to the death of the decedent. Taxes assessed after death should not be relevant to the crucial period. Taxes on income are taken into account in calculating lost financial support and lost accumulation to an estate, but not taxes on the estate itself. This decision also cited Schmitt v. Jenkins Truck Lines Inc., 170 N.W.2d 632 (Iowa 1969) as indicating at adult children can claim loss of financial support and services in cases involving decedent parents.
Miller v. YMCA, 2004 Iowa App. LEXIS 800. (Ia. App.
2004). The Iowa Court of Appeals affirmed that reasonable jury could
have concluded that the present worth of the estate of Britteny
Bronnenberg, aged 9, was $175,000. The Court indicated that the Iowa
Supreme Court had acknowledged that “this measure of damages was
necessarily somewhat of an approximation with each case turning on its
own facts” in Brophy v.
Iowa-Illinois Gas and Elec. Co,
119 N.W.2d 865 (Iowa 1963). The Iowa Supreme Court in that case had
pointed out that while the amount of uncertainty is even greater when
the loss to an estate is due to the wrongful death of child, but that
this reason alone should not deny the estate any recovery. The Miller
Court then proceeded to point out that the evidence showed that:
“Britteny was an intelligent child who received excellent grades,
with near perfect school attendance. She was well liked by her peers
and was in good health. From this evidence and other evidence offered
at trial a reasonable jury could conclude that the present worth of the
value of Britteny’s estate was $175,000.
Schmitt v. Jenkins Truck Lines Inc., 170 N.W.2d 632 (Iowa 1969). This decision provides a description of how damages in a wrongful death case in Iowa are calculated and is frequently cited in other Iowa decisions. The court listed the following allowable damage items: (1) The present worth or value of the estate which decedent would reasonably be expected to have saved and accumulated as a result of his efforts between time of his death and end of his natural life; (2) An award of interest on the reasonable funeral expenses of decedent for such length of time as it was prematurely incurred, not to exceed either the reasonable cost of a funeral for a person of decedent’s social and financial standing or the amount claimed therefore; (3) Recovery for all elements of damages sustained by the wrongfully injured person from the time of injury until the date of his death including those elements of damages permitted by Fitzgerald v. Hale, 247 Iowa 1194,78 N.W.2d 509; (4) The present worth of the services and support which he presumably would have contributed to his wife and children, or both, but for his untimely death. The decision involved a death of a homemaker, but the court held that she had the capacity to work outside the home, saying: “A person may not have worked or may have had no income prior to a fatal injury but still suffer destruction of future earning capacity.” Finally, the court also indicated that adult children could recover for loss of services and, potentially, support. “Parental affection for children probably will not cease after minority and the father may still contribute to his children’s support. . . The jury in considering loss to the children by their parents’ deaths is not limited to the time during which they are minors if it can conclude from the evidence such services would have continued after they attained majority.”
Tedrow v. Fort Des Moines Cmy. Serv., Inc, 117 N.W.2d 62 (Iowa 1962). This was a wrongful death action based on the death of a 12 year old girl. The jury awarded $22,500 in damages to her estate. The defendant challenged the award as excessive. The Iowa Supreme Court upheld the award, saying that: “No amount of money can compensate for a life wrongfully taken. Nor can any sum or any device known to man restore it. The law, faced with this absolute fact, can only say that in a proper case an award may be made which will compensate for the financial loss. The rule is the measure of recovery for a wrongful death is the reasonable value of the decedent’s life to his estate; which means the present worth of the estate he would reasonably be expected to accumulate between the time of his death and the end of his natural life if he had lived.” The Court also said: “[T]here is not a great deal that can be shown in regard to the future earning and accumulating capacities of a twelve-year-old girl. Yet for that reason alone her estate is not to be denied a recovery in damages.” The Court upheld the award of $22,500.
Wolbers v. Finley Hospital, 2003 Iowa Sup. LEXIS 230 (Iowa 2003). The decision allows an award to stand for “loss of function of mind and body” between the time of injury and the time of death “even though the time between a negligent act impeding a patient’s bodily functions and the time of death is brief.” The decision also clearly discusses the nature of adding interest to an award: “Interest on past damages accrues from the date the lawsuit was filed. . .Interest on damages awarded for future losses begins accruing on the date judgement is entered. We agree that the hospital's contention that the $30,000 awarded for loss of function of body and mind and physical and mental pain and suffering was the only recovery for past damages. The other elements of damage must be separately computed on past and future damages in accordance with our determination.” The decision did not mention an economic expert. Submitted by John O. Ward.
Atchison, Topeka & Santa Fe Railway Company v. Fajardo, 74 Kan.314 (1906). “No questions of greater difficulty are presented than those involving the pecuniary loss which next of kin suffer in the death of a child. No precise measure has ever been found, nor is it easy to state the quantum of proof that will give a basis of recovery. It is said that ita must be left largely to the discretion of the jury; but it is also ruled that damages cannot be rested on the conjecture of jurors, but must be supported by proof tending to show pecuniary benefits already realized or in reasonable expectation from the continuance of the life. . . Where the deceased was a minor child and lived with his parents, who would have been entitled to his services if he had lived, there is an implication of pecuniary loss, but a substantial amount cannot be recovered unless the circumstances proved, as to age, intelligence, conduct and relationship, furnish a basis of reasonable expectation of pecuniary benefit. It is not essential to a recovery in the case of a child that there should be proof of valuable services already rendered, nor direct evidence of the exact value of the services which would have been rendered had it lived, nor yet a fixed amount of pecuniary loss sustained in its death. This is not practicable.” Suggested by Kurt Krueger.
Co. v. Fisher, 79
Kan. 576; 100 P. 507 (KS 1909). This early Kansas decision discussed
pecuniary losses suffered by his parents as a result of the death of
James Lareau, their unmarried 21 year old son. The Court said:
“We have here a relationship that naturally leads to the
conferring of pecuniary benefits – a willing disposition to
contribute, a capability to contribute likely to increase,
contributions actually made, and a definite plan from which further
contributions were likely to result. It is not only reasonable to
suppose but it is quite certain that these parents would have been
pecuniarily advantaged by the continued life of their son, and under
all the decisions of the court sufficient data appeared from which the
jury, taking into consideration the knowledge and experience common to
all men, could compute the damage they suffered from his death.”
Calvert v. Rothlisberger, 268 Kan. 698 (Kan. 2000). The
Kansas Supreme Court specifically rejected the parental investment
approach for valuing parental loss in the death of a child, saying:
“The lost investment of infant care, clothing, support, and education
of the deceased child do not fit into any of the [K.S.A. 1999 Supp.]
60-1903 categories. Rothlisberger’s argument is inconsistent with
60-1903 and against the clear weight of authority.”
Cochrane v. Schneider National Carriers, Inc, 980 F.Supp. 374 (D.Kan 1997), Dr. Gerald Olson was permitted to testify about all normal pecuniary losses, but not permitted to advance a projection of the value of lost “emotional services” the decedent would have provided to his family. Dr. Olson had calculated an average of the salaries of teachers, social workers, psychologists and counselors as being in the range of $25,000 to $30,000 per year. He had then projected that the decedent father had provided “emotional services” in this range. The court ruled that such services by a high school graduate could not be valued by amounts paid to persons with more advanced degrees. The court also rejected this testimony because Dr. Olson provided no specific times during which these services were being provided.
Fudge v. City of Kansas City, 239 Kan. 369 (Kansas 1986). Evidence of remarriage of a surviving spouse is inadmissible in a wrongful death action in Kansas.Wentling v. Medical Anesthesia Services, 237 Kan. 503 (Kan. 1985). This is the key case in Kansas concerning relational services as household services. Lloyd Durham was the economist for the plaintiff that the value of the loss of conventional household services was $586,071. He also testified about what elements of loss were not included in his figure for lost household services. These additional pecuniary losses that he could not value in specific dollar terms incuded: “[M]oral training, social training, educational assistance (particularly with a handicapped child), a mother’s role as nurturer and counselor, companionship, services to her husband, and more.” The court held that the jury could award damages in these areas even if the plaintiff did not provide a precise estimate of damages.
Charlton v. Jacobs, 619 S.W.2d 498 (Ky. App.1981). The Court of Appeals said: “[W]e now hold that since the circuit court cannot instruct a jury on personal use reductions in reaching an award, then counsel should not be permitted to make any reference whatsoever thereto at any stage of the proceedings. . .The judgment will be reversed as to the trial for damages with instructions that the trial court prohibit any reference to the decedent’s items of personal consumption.”
Louisville & Nashville R. R. Co. V. Eakin’s Adm’r, 103 Ky. 465; 45 S.W. 529 (Ky. 1898). The Kentucky Supreme Court reversed a wrongful death trial court decision in which the trial court had “directed the jury to find for the plaintiff ‘the damages sustained by the widow and children, not exceeding the amount sued for.” The Court said: “They were not parties to the action and this part of the instruction, when considered with the testimony which was permitted to go to the jury over the objection of appellant, – that decedent was a married man and left three children, – it was extremely prejudicial, as it diverted the attention of the jury from the duty of fixing the actual sum of money which would fairly compensate the decedent for the destruction of his power to earn money and directed it to the affliction which had overtaken the family by reason of his death. ‘There is no rule of law under which the estate of a deceased father of a dozen children can properly recover, on account of his death, more than the estate of a father of one child or none. The real question in this case is, what is the value of decedent’s life to his estate, a nd the number of his children can have no legitimate bearing upon that question. And the great weight of authority supports this view.’ (See Beems v. Chicago R. R. Co., 58 Iowa 150.)”
Spangler's Adm'r v. City of Middlesboro, 191 S.W.2d 414 (Ken. App. 1945). "In this state the cause of action for wrongful death accrues to the estate of the deceased and the measure of damage is the destruction of the deceased's power to earn money."
Stewart’s Admr v. L. & N. R. R. Co, 136 Ky. 717; 125 S.W.154 (Kentucky 1910). This decision explained the meaning of the Kentucky Wrongful Death Act: “This court has uniformly held that in cases like this the measure of recovery is such a sum as will reasonably compensate the estate of the deceased for the destruction of the power to earn money; but it does not follow that this is to be computed by simply multiplying the earning power of the deceased by his expectancy of life as shown by the life tables. . . The value of a piece of machinery is not to be determined by multiplying its present earning power by the length of its probable use, but the cost of maintenance must be subtracted. The value of the human machine to his estate must be determined in like manner. It must be maintained – that is, it must be fed, clothed and supplied with other necessities. What the estate would lose would be the net gain.
Turfway Park Racing Association v.
834 S.W.2d 667 (Kentucky 1992 ). This decision of the Kentucky Supreme
court reversed a jury’s decision to award $0 for the “lost
power to earn money” to the estate of a decedent four year old
child. Dr. Michael Brookshire was the plaintiff economic expert and had
projected losses for lost earning capacity of between $1 million and $3
million. The Court offered this description of the response of the
defense: “Appellant chose not to present testimony of an
economist. The witness admitted that the decedent was analyzed as an
economic machine which never lost a day or hour of work and was paid
whether or not he worked. Whether the child would survive, become
educated, work and participate were factors presented to the witness
who then placed the child in a statistical class and expressed opinions
based on that class. In sum, appellant attempted to poke holes in the
testimony of Dr. Brookshire and create the impression that his
testimony was exaggerated or incredible.” The Court held that it
was in error no to have awarded some amount for the child’s lost
earning capacity, but rejected the plaintiff’s argument that Dr.
Brookshire’s testimony should have been accepted as
uncontradicted, saying: “While Dr. Brookshire’s
testimony was uncontradicted, it was not free of challenge on grounds
of exaggeration or poor scholarship. The use of economic testimony is
an acceptable way of proving wrongful death damages . . ., but the jury
retains the right to judge the weight of such testimony and under no
circumstances may it be compelled to return a verdict dictated by
economic expert testimony.”
Marks v. Pan American World Airways, Inc., 785 F.2d 539 (5th Cir.1986). This decision interprets Louisiana law regarding whether damages can be sought for loss of accumulations to an estate/loss of inheritance. The court held that loss of inheritance cannot be claimed in Louisiana, citing the vintage case of Eichorn v. New Orleans C.R. Light & Power Company, 114 La. 712, 38 So. 526 (1905). The Marks Court interpreted Eichorn as holding that “the decedent’s earnings factored into the question of damages only insofar as those earnings would be available to a child during minority.” The court pointed out that no evidence was offered about the spending habits, commitments to savings plans, asset growth plans or other estate building plans for the children were offered and thus that any projection of loss of inheritance would be mere speculation.
McGee v. A C and S, Inc., 933 So. 2d 770; 2006 La LEXIS 2139 (La. 2006). This decision of the Louisiana Supreme Court held in favor of allowing an award for hedonic damages as a separate category from other intangible losses such as pain and suffering. It provides a very clear discussion of the difference between “special damages” (“those which have a ‘ready market value,’such that the amount of damages may be determined with relative certainty, including medical expenses and lost wages”) and “general damages” (“general damages are inherently speculative and cannot be calculated with mathematical certainty”). The decision points out that “loss of the enjoyment of life falls within the definition of general damages because it involves the quality of a person’s life, which is inherently speculative and cannot be measured definitively in terms of money.” It offers this comparison: “Consider, for example, two boys, one athletic and the other artistic, who are both involved in an accident and suffer similar injuries. Presumably each boy should be awarded a similar quantum of damages for pain and suffering. However, the same injury may affect the boys very differently. The artist’s lifestyle was not drastically altered by the accident, as he was able to resume his artistic activities after the accident, whereas the athlete’s lifestyle is altered significantly, as he has to resign from his team and can no longer participate in athletics.” This decision involved the wrongful death of James McGee from exposure to asbestos. The court pointed out that there was no right to recover for James McGee’s loss of enjoyment of life under Louisiana’s wrongful death act, but that right existed under Louisiana’s survival action. The decision provides a clear discussion of the differences between the two acts. The right to recover for loss of enjoyment of life under the survival action was limited to the period McGee remained alive and thus suffered his loss of enjoyment of life. The decision also reviews decisions on this issue reached in a number of other states.
Mistich v. Volkswagen of Germany, Inc., 698 So.2d 47 (1997). This case was remanded by the Louisiana Supreme Court, 666 So.2d 1073 (La. 1996), reversing an award to the estate of the decedent for the decedent's loss of enjoyment of life based on testimony of Melville Wolfson.
Scott v. Pyles, 770 So. 2d 492 (La.App. 2000). In this wrongful death action, both sides had presented economic experts to calculate loss of financial support to survivors. The plaintiff had retained G. Randolph Rice, Ph.D. Rice used a worklife expectancy from the date of the trial of 18.7 years, an earnings base of $48,525, a growth rate of 3.0 percent, a discount rate of 5.25 percent to calculate total lost earnings of $1,044,404, which was adjusted for personal consumption expenditures to a loss of $886,413. The defense had retained Kenneth Boudreaux, Ph.D., who had used 17.15 year of worklife expectancy, annual growth factors between 2 and 4 percent, discount factors from 4.35 percent to 5.0 percent, for a range of total lost earnings of between $674,936.48 and $697,684.92, and lost support between $439,435.55 and $448,959.06. The trial court had awarded $808,206.50 and the defense had appealed that the court had “blindly” relied on the report of the plaintiff expert. The Court of Appeals held that the award fell between the figures of the plaintiff and figures of the defense, and thus did not represent an abuse of discretion by the trial court judge.
Sims v. Liberty Mutual Insurance Company, 897 So. 2d 835 (La. App. 2005). This decision discusses the operations of Louisiana’s wrongful death and survival action. The survival action applies only from the moment of injury to the moment of death. The decision describes the amount of economic damages as follows: “Dr. William Culbertson, an economist, calculated Wayne’s loss of earnings. He concluded that at the time of his death, Wayne had seven and eight-tenths years of estimated work life remaining, at which time he would have been seventy years old. In computing loss of wages, Dr. Culbertson did not have the benefit of tax returns but was told by Wayne’s family that he worked for a cab company making $50 to $75 a day. Dr. Culbertson testified that he reviewed Terry’s deposition and understood that Wayne had a falling out with the cab company, but he was also under the impression there was an understanding that Wayne was to be hired back again. He took into consideration that Wayne worked six days a week. Dr. Culbertson did not take into account any income for the mechanical work that Wayne performed because there was no clear indication as to how much Wayne earned. Dr. Culbertson performed three different calculations based on earnings of $50 a day, $75 a day, and minimum wage. Earning $50 a day six days a week, Dr. Culbertson concluded that the total loss for past and future economic loss was $156,494.00. This [Pg 14] is obviously the basis for the trial court’s award. Dr. Culbertson took into account that Wayne would have used some of this income on himself and included a deduction of $46,833 for personal consumption. We find that the evidence supports awarding loss of wages at $50 a day for six days a week and affirm the trial court’s award.”
Glover v. Spring Harbor Hospital, 2007 Me. Super LEXIS 116 (Me. Super. 2007). This is an order by Thomas E. Delahanty II in response to a motion for partial summary judgement by the defendant on claims of pecuniary loss and pain and suffering by a decedent in a claim for wrongful death. The judge denied partial summary judgement on the claim for pain and suffering, but granted partial summary judgment with respect to pecuniary loss. With respect to the pecuniary loss claim, the judge said: “In order to survive summary judgment, plaintiff must provide some evidence providing a prime facie claim for pecuniary loss to Patricia Glover. Here, Tracey Glover was not a child; she was a twenty-year-old woman, who suffered from mental health problems (and) was being partially supported by her mother. PSMF P 30. There is no evidence of any meaningful employment history, however, plaintiff has offered evidence by an economist as to Tracey Glove’s earning potential. PASM P 15. Patricia Glover believes that Tracey would have supported her in some manner and states that Tracey told her she would take care of Patricia when she got older. PSMF PP 23-24. Patricia’s belief and Tracey’s inadmissible hearsay statements do not meet the elements of a claim for pecuniary damages. The plaintiff’s evidence that Tracey Glover would be able or willing to economically assist her is speculation only; therefore, Patricia Glover is unable to demonstrate that she has personally been economically harmed by Tracey Glover’s death.
Phillips v. Eastern Maine Med. Cntr., 565 A.2d 306 (Me. 1989). Hedonic damages are not allowed for the period after death, but may be recovered for the period from injury to death.
Carolina Freight Carriers Corporation v. Keane, 311 Md. 335;
534 A.2d 1337 (Md. App. 1988).
This decision focuses on whether the language “21 years or younger” for recovery of solatium by parents with a child applies to someone who was 21 years and some months in age. The Maryland statute allows recovery of solatium for parental loss in the death of an unmarried child with whom parents had a close relationship if the child is “21 years or younger” or the parents provided more than 50 percent of the support of the child. The court ruled that the parents could recover solatium with respect to their decedent son who was 21 years and some months of age.
Valk Manufacturing Company v. Rangaswamy, 74 Md. App. 304; 537 A.2d 622 (Md. App. 1988). The trial court had permitted the testimony of Dr. William Belmont about losses accruing to survivors in a wrongful death matter. Dr. Belmont had projected the decedent’s loss of earnings as the reduction in profits of his corporation. The Maryland Court of Special Appeals affirmed, saying: “In a case such as this where the deceased was engaged in a business and profits were earned largely as a result of the personal endeavors of the deceased, one measure of the earning ability of the deceased is the decline in profits following the injury. Generally, courts will admit evidence of the loss of such income if the evidence conforms to the requirement of establishing a reasonable probability that the injury brought about loss of profits and the evidence affords a basis for a reasonable estimate of the amount of such loss.” (Submitted by David Curry.)
Norman v. Mass. Bay Transp. Auth., 403 Mass 303, 529 N.E.2d 139 (Mass. 1988). The Massachusetts Supreme Court held that a parent has no right to recover for the lost consortium of a non-fatally injured child even though the child can recover for lost consortium of a non-fatally injured parent: “Although parents customarily enjoy the consortium of their children, in the ordinary course of events a parent does not depend on a child’s companionship, love, support, guidance, and nurture in the same way and to the same degree that a husband depends on his wife, a wife depends on her husband, or a minor or disabled adult depends on his or her parent.”
Breckon v. Franklin Fuel Company, 383 Mich 251 (Mich.
1970). The Michigan Supreme Court ruled that references in Wycko
v. Gnodtke to recover for loss of companionship were dicta and that the
Michigan Wrongful Death Act did not provide for damages for loss of
companionship. This case provides a review of cases from Wycko until
Kemp v. Pfizer, Inc., 947 F.Supp. 1139 (E.D.Mi 1996). There is no authorization for hedonic damages in a wrongful death action in Michigan.
Baker v. Slack, 319 Mich. 703; 30 N.W.2d 403 (Mich.1948). This decision contains two components of interest to forensic economists. First, in a case involving the death of a homemaker who did not work outside the home, a surviving spouse can recover for loss of services “less reasonable cost of her maintenance.” (Italics in original.) Second, with respect to “lost accumulations to an estate,”plaintiffs could recover for lost inheritance “only to the extent that deceased was legally obligated to contribute to the support and maintenance of any of them.”
Breckon v. Franklin Fuel Company, 383 Mich 251 (Mich. 1970). The Michigan Supreme Court ruled that references in Wycko v. Gnodtke to recover for loss of companionship were dicta and that the Michigan Wrongful Death Act did not provide for damages for loss of companionship. This case provides a review of cases from Wycko until 1970.
Frontier Insurance Company v. Blaty, 454 F.3d 590 (6th Circ. 2006). This decision interprets Michigan law as not allowing recovery by an estate of “lost enjoyment of life” on the ground that loss of enjoyment must be consciously experienced to be recoverable. It also holds that “federal law does not require, in a section 1983 action, recovery of hedonic damages stemming from a person’s death.” The Court listed damages provided for in the Michigan wrongful death act as: (1) “reasonable medical, hospital, funeral and burial expenses for which the estate is liable,” (2) “reasonable compensation for the pain and suffering, while conscious, undergone by the deceased person during the period intervening between the time of the injury and death,” and (3) “damages for the loss of financial support and the loss of society and companionship of the deceased.” MICH. COMP. LAWS § 600.2922(6). The Court held that hedonic damages might fall into “reasonable compensation for pain and suffering,” but only from the instant of injury to the instant of death. An economic expert does not appear to have been involved in this case.
Kemp v. Pfizer, Inc., 947 F.Supp. 1139 (E.D.Mi 1996). There is no authorization for hedonic damages in a wrongful death action in Michigan.
Wycko v. Gnodtke, 361 Mich. 331 (Mich. 1960). This was the Michigan Supreme Court case that established the parental investment approach as the method for valuing parental loss in the death of minor children.
Fussner v. Andert, 261 Minn. 347 (Minn. 1962). This decision expanded the concept of “pecuniary loss” to include the loss of advice, comfort, assistance and protection of the decedent, even if a minor child. This decision, however, did not address the “investment theory” that loss could be valued by the amount of parental investment in the child.
Gravley v. Sea Gull Marine, Inc., 269 N.W.2d 896 (Minn.1978). The Minnesota Supreme Court reaffirmed that to include the loss of advice, comfort, assistance and protection of a decedent is a part of pecuniary damages, but specifically rejected the theory that parental investment in raising a child measures that pecuniary value, saying: “A child, however, is not a monetary investment, and we do not find the analogy persuasive.”Youngquist v. Western Nat’l Mut. Ins. Co., 716 N.W.2d 383 (Minn. App. 2006). The Minnesota Court of Appeals affirmed the trial court decision that loss of future aid, advice, comfort, and companionship should be reduced to present value in contrast to damages for future pain, future disability and future emotional distress, which are not reduced to present value. The district court had reasoned that future aid, advice, comfort and companionship were “services” within the meaning of the Minnesota Wrongful Death Act and not like future pain, future disability and future emotional distress in that regard. Suggested by David Jones.
Betterton v. Edwards, 2006 U.S. Dist. LEXIS 60629 (N.D. Miss.
2006). This is a judicial memorandum from a federal judge interpreting
the Mississippi Wrongful Death Statute prior to the adoption of
Code Ann. § 11-1-69. Judge Pepper said: “[T]his court is certain
the types of wrongful death damages stated in McGowan [McGowan v.
of Wright, 524 So.2d 30] were nonexclusive in nature, especially given
wrongful-death statute upon which McGowan is based allows ‘all damages
every kind.’ Therefore, hedonic damages are available in this case.
Code Ann. § 11-1-69, prohibiting hedonic damages in wrongful death
was not effective until after the instant case was filed.
Campbell v. Schmidt, 195 So. 2d 87 (Miss. 1967). “We hold that testimony may be introduced to show the remarriage of the widow, after the death of the husband, for which the suit is brought.”
Choctaw v. Hailey, 2002 Miss. Lexis 181 (2002). Loss of the enjoyment of life was declared recoverable in a wrongful death action. A subsequent act of the Mississippi precluded hedonic damages in a death case and precluded an expert witness from testifying about hedonic damages in a personal injury action.
Classic Coach, Inc. v. McBride, 823 So. 2d 517 (Miss. 2002). This case involved the wrongful death of two young men. Larry McBride was 21 and was newly married with an infant son. Matthew Johnson was also 21 but single and survived by his parents and three sisters. C. David Channell, the economic expert for the plaintiffs, projected three potential alternative income streams based on each decedent having minimum wage earnings, earnings of a high school graduate, and earnings of a college graduate. The Court held that it was a rebuttable presumption that each decedent would have had earnings equivalent to the national average as set forth by the U.S. Department of Labor. Based on the evidence provided in the trial, the trial court judge accepted college earnings as most accurate. Chanell had used the same 30% reduction for the personal consumption of each decedent based on the Cheit report and rejected defense reports based on 67% personal consumption. The Supreme Court found that the verdict was large, but “we are not able to say that the amount of the verdict was the result of passion, prejudice or corruption.”
Dorrough v. Wilkes, 817 So. 2d 567 (MS 2002). This decision predates Mississippi tort reform legislation precluding hedonic damages in a death case and holding that there can be no expert opinion about hedonic damages. The Court held that hedonic damages were allowable in a death case if pain and suffering was lengthy before death as in the Dorrough case, but struck the hedonic damages testimony of Robert Johnson after Johnson’s testimony. The jury was told they could award hedonic damages, but should ignore report Robert Johnson’s testimony in arriving at its award.
Greyhound Lines, Inc. v. Sutton, 765 So. 2d 1269 (Mississippi 2000). This decision involved the wrongful death of three children. The plaintiff had retained Carroll David Channell as its economist, while the defense had retained Kenneth J. Boudreaux. Channell had projected real wage growth of 0.87% per year and used a personal maintenance factor of 30 percent from the Cheit tables, starting from average earnings of a high school graduate “plus the employer paid portion of social security adjusted for taxes.” Boudreaux had projected wage increases of 5 percent a year, starting from $8,000, with a 94 percent personal consumption rate based on the Statistical Abstract. The decision does not mention what discount rate Boudreaux used. The key issues at stake were: (1) How should the future income of a minor child be projected; and (2) How should personal consumption be determined? On the first issue, the Court said: “[W]e hold that in cases brought for the wrongful death of a child where there is no past income upon which to base a calculation of projected future income, there is a rebuttable presumption that the child’s income would have been the equivalent of the national average as set forth by the U.S. Department of Labor.” On the second issue, the Court held that personal consumption should be be subtracted from lost earnings, but that the percentage to be subtracted should be “determined solely by the finder of fact.” At issue was whether personal consumption should be based on possible future families of minor children or not. The Court indicated that this was up to the trier of facts.
Jones v. Shaffer, 573
So. 2d 740 (Mississippi 1990). This decision involved the wrongful
death of a 22 year old man. The economic expert for the plaintiff, Dr.
Paul Oliver testified that Jones had a worklife expectancy of 41 years
with a present value of $171,000 based on a 26 percent personal
consumption rate. Oliver was asked by defense to reduce lost earnings
by 40% and by 67% for personal consumption. The jury was awarded
nothing for the net loss of earnings of Jones, which was one reason the
Mississippi Supreme Court gave for reversing the trial court
McGowan v. Estate of Wright, 524 So.2d 30 (MS 1988). This
decision sets out the damages available in a wrongful death case under
Mississippi Code ann.§ 11-7-13 (Supp. 1984) prior to the adoption
of Mississippi Code Ann. § 11-1-69, effective 1/1/02, as follows:
“[I]n a wrongful
death action the party or parties suing shall recover such damages as
jury may determine to be just, taking into consideration all the
of every kind to the decedent and all the damages of every kind to any
all parties interested in the suit. The statutory language has been
to include: (1) the present net cash value of the life expectancy of
deceased, (2) the loss of companionship and society of the decedent,
the pain and suffering of the decedent between the time of injury and
and (4) punitive damages.”
Nowell v. Universal Electric Company, 792 F.2d 1310 (5th Cir. 1986). This decision interpreted Mississippi law regarding the effect of remarriage on a wrongful death action. Mississippi is among the minority of states allowing remarriage to be considered by the jury in awarding damages. The 5th Circuit cited the decision of the Mississippi Supreme Court in Campbell v. Schmidt, 195 So. 2d 87 (Miss. 1967) in reaching its conclusion. Submitted by David Jones.
Spotlite Skating Rink, Inc., v. Barnes, 2008 Miss. LEXIS 322 (Mississippi 2008). This decision was in response to an appeal by the defendant of an award of $600,000 in the death of a ten year old girl. The defense argued that the testimony of Dr. George Carter was unreliable. The Court indicated that the standards for calculating loss in the death of a child was set out in Greyhound Lines, Inc. v. Sutton, 765 So. 2d 1269, 1277 (Mississippi 2000), in which the Court had held that there is a rebuttable presumption that the deceased child’s income would have been the equivalent of the national average as set forth by the United States Department of Labor. The Court said: “Dr. Carter testified that the net present value of the life expectancy of Bianca was $502,379. To arrive at this figure, Dr. Carter reviewed this court’s decision in Sutton. He took the national average income established by the U.S. Department of Labor, multiplied that number by her work life expectancy, and subtracted taxes, personal consumption, and education costs. He then added fringe benefits and entitlement benefits to arrive at his final figure. Dr. Carter was vigorously cross examined, explaining that characteristics specific to Bianca were not included in his analysis. He testified that his results were calculated from the national average, not the average wage for the Mississippi Delta. Dr. Carter explained that his assumption that Bianca would marry and go to college was based on the typical American female. He also testified that he was not told that Bianca had a rare congenital cyst that might have decreased her life expectancy.” Dr. Carter’s testimony had been challenged under Daubert standards, which have been adopted more recently than the Sutton decision. On this issue, the Court said: “This Court’s adoption of Daubert is not a basis for amending Sutton. The Sutton opinion specifically rejects the idea that the income of children should be based on the average income for a person in the community in which they lived. This Court found that this method was ‘unfair and prejudicial’ and would ‘result in potentially disparate recoveries for children from affluent communities . . . as opposed to children from less affluent areas.’”
Upchurch v. Rotenberry, 1998 Miss. LEXIS 524 (1998). Hedonic damages testimony in a death case was not allowable in a wrongful death action, apparently overturned by Choctaw v. Hailey in 2002.
Call v. Heard, 925 S.W.2d 840 (Missouri 1996). Generally
evidence of remarriage of a plaintiff in a wrongful death case is to be
excluded. Glick v. Allstate Insurance
Company, 435 S.W.2d 17 (Mo.App. 1968). This case
involved a claim that the plaintiff had voluntarily broached the
subject of remarriage, thus opening the door for questions about the
remarriage. The court said that “even though such evidence may be
introduced for some legitimate purpose, it is still not to be taken
into account in the determination of damages.
Domijan v. Harp, 340 S.W.2d 728 (MO 1960). In this wrongful death case, adult children of a 73 year old decedent mother were permitted to recover damages under Missouri’s wrongful death action even though none of the children were legal dependants. The Court held that reasonable expectancy of future support and services was the standard and not legal dependency of the survivors. Suggested by Kurt Krueger.
Henderson v. Fields, 68 S.W.3d 455 (Mo.App. WD 2001). John O.
Ward testified to the earning capacity of the decedents. The trial
court granted a plaintiff motion in limine to preclude Dr. Ward from
being questioned about personal consumption. The trial court said that
such questioning might be proper if the defendant introduced its own
expert testimony or other evidence indicating that the personal
consumption concept should be considered in this type of situation. The
Missouri Court of Appeals held that the defendant failed to provide an
offer of proof and therefore a challenge on this point was denied.
Johnson v. Pacific Intermountain Express Co., 662 S.W. 237 (Missouri 1983). This Missouri Supreme Court decision reaffirmed the fact that Missouri courts have consistently held that a cause of action for wrongful death is not abated by remarriage and that remarriage may be not considered in mitigation of damages. This decision also addressed a desire by the defendant to refer to a widow by her new married name. The Court cited Matter of Natale, 527 S.W. 2d 402 (Mo.App. 1975) as correctly indicating that a widow must use her true legal name in court proceedings. However, Cathy Johnson, in the current case, had not changed her legal name to that of her new husband after remarriage and the trial court had entered an order “reaffirming” her legal name as Cathy Johnson, her prior married and still legal name.Moss v. Executive Beechcraft, Inc., 562 F. Supp. 873 (W.D. Mo. 1983). A federal district court interpreting Missouri law held that loss of inheritance can be claimed in Missouri if properly supported by evidence.
Artuso v. State of Montana, 1999 Mont. Dist. LEXIS 1119 (Mt. Dist. 1999). Hedonic damages may not be recovered in a Montana survival action.
Bell v. Montana Rail Link, 1994 Mont. Dist. LEXIS 613. (Mt. Dist. 1994). Hedonic damages cannot be recovered in a Wrongful Death Action.
Bodrug v. United States, 832 F.2d 136 (10th Cir. 1987). This is a decision under the Federal Tort Claims Act (FTCA) that interprets both Utah and Montana law to allow loss of inheritance as a wrongful death damage. The case was being tried under Utah law, but the defense was claiming that it should have been tried under Montana law. The 10th Circuit pointed out that it would have upheld the right to collect loss of inheritance damages under either Utah or Montana law. Since Utah law was explicit about the right to collect loss of inheritance damages, the 10th Circuit devoted more analysis to Montana law even though Montana is in the 9th Circuit. The decision argues that the majority of states allow recovery for loss of prospective inheritance. It also points out that the principle reason a minority of states have precluded such claims is that the projection of damages is too speculative.
Christofferson v. City of Great Falls, 2001 ML 2326; 2001 Mont. Dist. LEXIS 3560. (Mont. Dist. 2001). This is an order of Judge Kenneth Neill granting a motion in limine barring the hedonic damages testimony of Dr. Stan V. Smith after a Daubert hearing, with specific considerations of: (A) Testability; (B) Peer Review; (C) Potential Rate of Error; and (D) Degree of Acceptance. Under “Testibility,”the Court said: “Dr. Ireland testified that the methodology could not be tested. Dr. Smith admitted only that the underlying studies . . .could or had been tested. Dr. Ireland further pointed out that while many of the predictions of economists in damages testimony can be validated in retrospect if not otherwise (for example, predicted rates of inflation, salary escalations, etc.), no such retrospective validation is possible with hedonic damages. Under “Peer Review,” the Court said: “Publication . . . does not equate to peer review.” Under “Potential Rate of Error,” the Court cited Hein v. Merck & Co, 868 F. Supp. 230 (M.D. Tenn. 1994) in saying that “Expert valuation in hedonic damages has been roundly criticized for the wide variation reached by various experts in calculating values of an anonymous life, from for example $100,000 to $12,000.” Under “Degree of Acceptance,” the Court said: “Dr. Ireland cites to a 1999 survey of forensic economists in which only 25% indicated they were willing to consider presenting hedonic damage testimony and 75% would not. . . Certainly a cottage industry has sprung up around this theory of hedonic damages in which numerous forensic economists are willing to come forward and testify for one side or the other. Any time there is a market for a particular type of expert testimony as there clearly is here, one should lnot be surprised that there will be experts ready to avail themselves of that market. A review of the cases and literature cited in the cases reveals that there is anything but a professional consensus that Dr. Smith’s theory is valid.” The Court also concluded that hedonic damages testimony failed a separate “relevance” test based on the fact that purchases of smoke detectors were not relevant to measure the quality of someone’s life.
Dorn v. Burlington Northern Santa Fe Railroad Company, 2005 U.S. App. 1887 (9th Cir. 2005). This was an appeal of a wrongful death decision under Montana law, not an FELA action. The trial court judge had permitted Stan V. Smith to present hedonic damages testimony, but had not allowed Thomas R. Ireland to testify in opposition to the validity of hedonic damages testimony. As one a number of errors that resulted in a reversal of the trial court decision, the 9th Circuit held that it was in error for the trial court not to have admitted Ireland’s testimony. The 9th Circuit evaluated Montana’s position on hedonic damages and the admissibility of expert testimony on hedonic damages as ambiguous and therefore did not hold that the admission of Smith’s hedonic damages testimony was reversible error. It did, however, express concerns about the validity of that testimony.
Heffelinger v. Baggenstos, M.D., 1991 Mont. Dist. LEXIS 5 (Mont. Dist 1991). A motion to dismiss granted on grounds that the Montana Wrongful Death statute does not permit recovery by a decedent for loss of enjoyment of life, nor does it allow recovery for loss of a survivor’s ability to enjoy life because of the death of a decedent.
Hern v. SAFECO Insurance Company, 2005 MT 301; 329 Mont. 347; 125 P.3d 597 (Mt. 2005). This decision describes the relationship between the Montana Wrongful Death Act and the Montana Survival Action. Part of the appeal of the trial court decision had been based on the fact that household services were claimed under the survival action rather than under the wrongful death act. The Court held that household service should have been claimed under the Wrongful Death Act, while technically incorrect, did not constitute an abuse of the trial court judge’s discretion. The Court added: “We caution, however, that in the future, damages available in wrongful death actions should be included in the wrongful death portion of the verdict form.” The court also held that while “loss of established course of life” (hedonic) damages were available in personal injury matters with a surviving victim, they were not available under the Survival Act for deceased persons.
Payne v. The Eighth Judicial District, Cascade County, 2002 MT 313; 33 Mont. 118; 60 P.3d 469 (2002). Montana has a paired Survival Action and Wrongful Death. The survival action allows recovery for the entirety of lost earnings without reduction for “economic consumption,” apparently for the period from the injury to death. The wrongful death action does subtract economic consumption to determine the losses to survivors. Because of legislative action in 1987, the two actions must be combined, but claims under one action cannot be duplicated under the other.
Renville v. Fredrickson, 2004 MT 239 (Montana 2004). In a 4 to 3 decision on the main point in question, the Montana Supreme Court held that parents of an adult child can claim loss of consortium resulting from the death of that child if evidence exists of a special quality of relationship between the parents and the child. The case was remanded to the trial court to determine whether such a special relationship existed.
Corona de Comargo v. Schon, 278 Neb. 1045 (Neb. 2009).
This was a decision that described the relationship between
Nebraska’s Wrongful Death Act (section 30-809) and
Nebraska’s survival statute (section 25-207) as they apply in a
death case. Although the statute of limitations for filing a wrongful
death act is two years, the statute of limitations for filing a
personal injury action and thus survival action for losses to an estate
is four years. Under the wrongful death act, losses to a decedent are
ignored and survivors of a decedent must sue for their own damages. The
only damage element recoverable to an estate of a decedent is the pain
and suffering of a decedent before death. Even though a wrongful death
claim can be joined to a personal injury claim, the statute of
limitations for an estate to file a claim for pain and suffering is
four years, not the two year statute of limitations that would apply
for a wrong death action by survivors. Suggested by Michael
Selders v. Armentrout, 190 Neb. 275 (Neb.1973). The Supreme Court of Nebraska indicated that parents could recover pecuniary damages for the loss of companionship of a wrongfully killed child in Nebraska, but added this dicta: “For the guidance of the court on retrial, we believe that the expenses of birth, food, clothing, instruction, nurture, and shelter which have been incurred or were reasonably necessary to rear the child to the age he or she at attained on the date of death are not properly admissible. We conclude that the investment theory of measuring damages by the amounts expended in raising the child is inappropriate and improper.”Nevada
Alsenz v. Clark County School District, 109 Nev. 1062 (1993). Sets out standards for damages in a wrongful death action. A decedent's lost economic opportunities are not recoverable, but heirs may recover for "loss of probable support."
McGarry v. United States, 370 F.Supp. 525 (D. Nev. 1973), aff'd in part, rev'd in part , McGarry v. United States, 549 F.2d 587 (9th Cir. 1976). Nevada recognizes that pecuniary loss may include care and attention to the deceased as "services" to a survivor in a wrongful death action with financial value.Pittman v. Thorndike, 762 F.Supp. 870 ( D. Nev. 1991) This federal district case, interpreting Nevada law, precluded an award of hedonic damages under the Nevada Wrongful Death Act. The Pittman Court held that damages in a wrongful death are limited to damages mentioned in the wrongful death statute. The Court also held that the only possible element of damages in the wrongful death statute that could conceivably be interpreted to allow hedonic damages for a decedent was the provision for recovery for pain and suffering. The court said: “Pain and suffering, to be compensable in a Nevada wrongful death action, must be consciously experienced. Thus, under the provision for pain and suffering, plaintiffs can only recover for that part of the decedent’s “loss of the hedonic value of human life,” that was consciously experienced before death. Furthermore, as the list of recoverable damages is exclusive, and pain and suffering is the only term that could encompass this loss, plaintiffs cannot recover for any other part of the loss.”
Alexander v. Whitman, 114 F.3d 1392 (3rd Cir. 1997). Interpreting New Jersey law, recovery is allowed in personal injury for hedonic damages, but the injured person must be conscious.
Carey v. Lovett, 132 N.J. 44; 622 A.2d 1279 (N.J. 1993). “Damages for the wrongful death of an infant, like wrongful-death damages generally, are limited to economic matters. When parents sue for the wrongful death of a child, their damages may include the pecuniary value of the child’s help with household services, the pecuniary value of the child’s anticipated financial contributions, and the pecuniary value of the child’s companionship, including his or her advice and guidance, as the parents grow older (italics added for emphasis).” Suggested by Frank Tinari.
Clement v. Consol. Rail Corp., 734 F.Supp. 151 (D.N.J. 1989). Interpreting New Jersey Law, this decision held that hedonic damages are not available under New Jersey's Wrongful Death Act, but are available under the Survival Act if an injured party survives an accident for a period of time and is conscious.
Dubil v. Labate, 52 NJ 255 (N.J. 1968). Ruled that wife could not use her prior married name in wrongful death action if she had since remarried and taken her new husband's name. This case makes it clear that evidence of remarriage cannot ordinarily be introduced in a wrongful death action in New Jersey. The issue in this case was whether she was entitled to present herself to a jury with her previous married name to avoid the inference that she had remarried. The court ruled that she could not misrepresent the truth of her new name to a jury. “[T]he desirable exclusion of evidence relating to the remarriage may not be carried to the point of affirmatively misrepresenting the truth to a jury.”
Eyoma v. Falco, 247 N.J. Super. 435 (App. Div 1991). Hedonic damages are not available under New Jersey's Wrongful Death Act, but are available under the Survival Act if an injured party survives an accident for a period of time and is conscious.
Gangemi v. National Health Laboratories, 291 N. J. Supper. 559; 677 A.2d. 1163 (N.J. Super 1996). Citing Green v. Bittner, 81 N.J. 1; 424 A.2d 210 (N.J. 1980), the Gangemi Court said: “The damages encompass ‘the loss of guidance, advice and counsel,’ and companionship. . The Court warned, however, that the evaluation of such benefits ‘in this context must be limited strictly to their pecuniary element.’ . . . The estimation may not include any consideration of emotional loss relating to either decedent’s death or plaintiff’s pleasure in having her next of kin, rather than a stranger, perform the services. The type of advice and companionship compensable under the [Wrongful Death] Act is the kind which may be purchased. . . In the context of the parent/child relationship, the Court gave the example of hired companions who may provide assistance to aged parents with shopping, nursing care and household management. . .The recovered ‘value must be confined to what the marketplace would pay a stranger with similar qualifications for performing such services.’” Suggested by Frank Tinari.
Goodman v. Newark Beth Israel
251 N.J. Super. 533; 598 A.2d 956 (N.J. Super. 1991). In this case,
both the mother and daughter of a single female decedent sought damages
resulting from the death. Frank Tinari, Ph.D., calculated pecuniary
damages of $286,253 for the daughter and $497,565 for the mother. The
court held that New Jersey’s intestate law indicated that only
the decedent’s daughter would have inherited from the decedent
and granted a motion in limine to preclude testimony about the losses
of the mother of the decedent. Suggested by Frank Tinari.
Goss v. American Cyanamid, 278 N.J. Super. 227; 650 A.2d 1001 (N.J. Super. 1994). Citing Green v. Bittner, 81 N.J. 1; 424 A.2d 210 (N.J. 1980), the Goss Court said: “Loss of companionship, guidance and counsel must be confined to their pecuniary element and their value ‘must be confined to what the marketplace would pay a stranger with similar qualifications performing such services.’” Suggested by Frank Tinari.
Green v. Bittner, 85
NJ 1 (1980). This decision provides for the recovery as pecuniary
damages in a New Jersey wrongful death action the future advice and
counsel and the possible future companionship of an adult child to her
parents. Donna Green, the decedent, was a high school senior at the
time of her death and was a model daughter according to the decision.
The trial court had awarded no pecuniary damages to her parents based
on the existing New Jersey standard that recovery should be limited to
lost future household services and lost future financial support for
her parents. Judge Wilenz held for a unanimous court that the jury
should have considered the value of the advice and counsel that Donna
Green would have provided as an adult to her parents and the
companionship services she might have provided to them in old age. The
court defined lost companionship as follows: “Companionship, lost
by death, to be compensable must be that which would have provided
services substantially equivalent to those provided by
‘companions’ often hired today by the aged and infirm, or
substantially equivalent to services provided by nurses or practical
nurses. And its value must be confined to what the marketplace would
pay a stranger with similar qualifications for performing such
services. No pecuniary value may be attributed to the emotional
pleasure that a parent gets when it is his or her child doing the
caretaking rather than a stranger, although such pleasure will often be
the primary value of the child’s service, indeed, in reality, its
most beneficial aspect.” The court defined loss of guidance,
advice and counsel as follows: “The loss of guidance, advice and
counsel is similarly confined to its pecuniary element. It is not the
loss simply of exchange of views, no matter how perceptive, when a
child and parent are together; it is certainly not the pleasure that
accompanies such an exchange. Rather it is the loss of that kind of
guidance, advice and counsel which all of us need from time to time in
particular situations, for specific purposes, perhaps as an aid in
making a business decision, or a decision affecting our lives
generally, or even advice and guidance needed to relieve us from
unremitting depression. It must be the kind of advice, guidance or
counsel that could be purchased from a business advisor, a therapist,
or a trained counselor, for instance. That some of us obtain the same
benefit without charge from spouses, friends or children does not strip
it of its pecuniary value.” The Court acknowledged the
speculation involved in such calculations, but argued that other kinds
of damages are awarded on a similarly speculative basis, saying:
“Given the normal parent-child relationship, a jury could very
well find it is sufficiently probable, had the child lived, that at
some point he or she would have rendered that kind of companionship
services mentioned herein and, although perhaps even more conjectural,
the kind of advice, guidance and counsel we have described. It will be
up to the jury to decide what services would have been rendered, and
what their value is, subject to no more and no less control, direction,
and guidance from the court than occurs in other wrongful death
cases.” The decision also provides useful review of how parental
loss in the death of a child is handled in states other than New
Jersey. Revised listing.
Hudgins v. Serrano, 186 N.J. Super. 465; 453 A.2d 218 (N.J. Super. 1982). Citing Green v. Bittner, 81 N.J. 1; 424 A.2d 210 (N.J. 1980), the Hudgins Court said: “The intent of the [wrongful death] statute is to provide those entitled with that which they could have reasonably expected had the decedent survived. Where those expectations anticipated something to be provided by the person of the decedent other than that which could be furnished with the coin of the realm, the entitlement is to money sufficient to provide a substitute to the extent it can be provided. Its value must be confined to what the market place would pay a stranger with qualifications as similar to those of decedent as possible under the circumstances for performing such services. Significantly, no pecuniary value may be attributed to emotional pleasures or satisfaction now lost.” Suggested by Frank Tinari.
In re Jacoby Airplane Crash Litig., 2006 U.S. Dist. LEXIS 87816 (D.N.J. 2006). This opinion and order deals with the issue of whether New Jersey’s survival action allows recovery for pre-impact fright and for post-injury lost enjoyment of life between the instant between impact and death. Defendant’s motion in limine to preclude evidence on both matters was denied. It held unlike pain and suffering, hedonic damages do not have to be consciously experienced to be recovered, but most be only for the period between injury and death. The court said: “While the Court continues to eye with circumspection the quantum of damages reasonably recoverable, the New Jersey courts’ decision to adopt a “split second” definition of what constitutes a non-instantaneous death, along with the presumption of continuing life, leaves this Court no alternative but to allow Plaintiffs to submit such evidence to the trier of fact for a factual determination as to how much those seconds, or tenths of a second, are worth.”
In Re: Jacoby Airplane Crash Litigation, 2007 U.S. Dist. LEXIS 71012 (D.N.J. 2007). This decision interprets New Jersey law as allowing recovery for lost accumulations to an estate. It cites Ralph Frasca, “An Economic Model for Calculating Prospective Inheritance,” J. Legal. Econ, 2004, p. 83, 84, with respect to the potential for double recovery, but concludes that Dr. Richard Ruth, plaintiff’s economic expert, had not “attempted” double counting. The Court noted that defendants had argued that survivors had inherited more from the decedents than if the decedents had lived out their normal life expectancies. The Court indicated that Dr. Ruth appeared to have cut off the decedent’s consumption at the end of his work-life and that defendants would be permitted to explore this possibility, with ultimate judgement about whether or not there was any loss of inheritance to be decided by the jury.
Johnson v. Dobrosky, 187 N.J. 594; 902 A.2d 238 (N.J. 2006). This decision describes in some detail the application of Green v. Bittner, 85 N.J.1; 424 A.2d 210 (1980) in reversing a decision of the New Jersey Court of Appeals allowing testimony about the fact that the decedent had been convicted of welfare fraud. This testimony had been admitted as relevant to the quality of the advice and counsel the decedent would have provided. The New Jersey Supreme Court held that there was no direct connection between the quality of advice and counsel the decedent would have provided to her spouse and children and that a new trial was warranted. The Court held that the market value for the services business adviser, therapist trained counselor would measure the loss of advice and counsel. The Court repeated statements in Green v. Bittner to the effect that loss of “companionship” was defined as “the loss of a type of household services provided by in-home nurses or those employed to care for the infirm,” but appeared to be saying that such services were not relevant in the current case, though relevant in cases involving the death of a child.
Nodzak v. Giehill,
2008 U.S. Dist. LEXIS 97819 (D.N.J. 2008). This order interpreted New
Jersey law and involved the wrongful death of partially disabled adult
child. The plaintiff father claimed loss of the pecuniary value of the
companionship and advice of the decedent child under Green v. Bittner,
85 N.J. 1 (1980), but did not provide expert testimony about the value
of those loss categories. The Court held that expert testimony is not
required but is helpful to a jury in determining the value of lost
advice, counsel and support. The Court further noted that a claim for
pecuniary damages in a wrongful death case always involves some
speculation and estimation of damages based on uncertainties and that
such damages resulting from the death of a child are “somewhat
more conjectural” than in other wrongful death cases. The court,
however, added that: “[T]he determination of damages under the
Wrongful Death Act is troublesome due to a lack of expert testimony. As
such the Court continues to eye with circumspection the quantum of
damages reasonably recoverable in this case.”
Schiavo v. Owens-Corning Fiberglass, 282 N.J. Super. 362.
(N.J. Super. 1995). “The jury determined that $150,000 would reasonably
compensate [Dona Schiavo, defendant’s widow] for her pecuniary losses,
including those permitted by Green v. Bittner.” Damages allowed under
Green v. Bittner, 81 N.J. 1; 424 A.2d 210 (N.J. 1980) include advice,
counsel, guidance and companionship of the sort provided by attendant
providers. This decision provided no discussion of how the $150,000
was arrived at. Suggested by Frank Tinari.
Smith v. Whitaker, 313 N.J. Super. 165 (NJ App. 1998). Much of this decision is concerned with whether punitive damages can be awarded if there are no compensatory damages in a wrongful death action. The decision also revolves around whether a survival action can be maintained if there is no evidence that the decedent experienced consciousness between injury and death. There is extensive discussion of the roles of survival actions and wrongful death actions. The Appeals Court affirmed the decision of the trial court to allow a large punitive damage award under the survival action even though there was no compensatory claim for pain and suffering under that action. (Submitted by John Seiffertt.)
Thomas v. Ford Motor Company, 1999 U.S.Dist Lexis 17702, Interpreting New Jersey Law, this decision held that hedonic damages are not available under New Jersey's Wrongful Death Act, but are available under the Survival Act if an injured party survives an accident for a period of time and is conscious.
Vassiliu v. Daimler Chrysler Corp., 2004 N.J. LEXIS 9 (N.J. 2004). The New Jersey Supreme Court reversed the trial court and the Court of Appeals on the issue of whether a survival action and wrongful death action claim under an insurance policy could both be awarded the maximum amount allowed under separate claims. There was a $15,000 per person payout, which the lower courts had held as allowing a payout of $30,000 for the combined wrongful death and survival action claims of harm from the same wrongful death. The Supreme Court cited prior decisions indicating that the purposes of the survival action and wrongful death action claims were different, but concluded that the $15,000 per person limit in the policy was still binding. Submitted by Ralph Frasca.New Mexico
Baca v. Baca, 81 N.M 734 (N.M. App. 1970). The Court of Appeals said: “We are of the opinion that proof of a wrongful death implies recoverable damages. In the absence of pecuniary injury, the jury may still award such damages, compensatory and exemplary, as they shall deem fair and just, having regard to the mitigating or aggravating circumstances attending the wrongful act, neglect or default which results in the death. Stang v. Hertz Corporation, supra; § 22-20-3, N.N.S.A. 1953, The present worth of the life, in the absence of pecuniary injury to those entitled to recovery, is arrived at upon the basis of the age, occupation, earning capacity, health, habits, and the probable duration of the life of the decedent. Hall v. Stiles, 57 N.M. 281, 258 P. 2d 386 (1953).
Cerrillos C. R. Co. v. Deserant, 9 N.M. 49, 49 Pac. 807 (New Mexico 1897). The court said: “It cannot be readily seen how, arguing from the relations and obligations of one human being toward another, except it be the life of a husband and father to his wife and children to whom he owes support and education. It must be considered, however, that as our statute gives a right of recovery to any one who is of kin in the same way that it gives to the wife and children of the deceased, merely prescribing who are prior distributees of what is recovered, the rules for estimating the loss in each case should be the same. Such a rule must be that from the proof as to age, earning capacity, health, habits, and probable duration of life, the jury shall say what is the present worth of the life of the deceased , with nothing to be added by way of consolation to the parties or party entitled as distributees to the proceeds of recovery, and nothing for suffering or anguish of mind or body of the deceased. It is resolved into a cold question of dollars, with sentiment in no way to be taken into account. Neither does the question of mitigating or aggravating circumstances have any weight so far as the damages denominated “compensatory” are concerned. If there should be a recovery full compensation should be awarded, mitigating or aggravating circumstances having effect only on the question of allowing or not allowing exemplary damages in addition to full compensation.”
Corlett v. Smith, 107 N.M. 707; 763 P.2d 1172 (N.M. 1988). This was a decision in a New Mexico wrongful death action, which is based on loss to the estate of the decedent and not to survivors. Regarding household services, the court said: “When husband performed household services, other income-producing activity could not be undertaken. Further, specific costs would be incurred if someone else were retained to perform them. We believe the value of those services is an evidentiary item admissible in this case in establishing the present worth of husband’s life. Cf. Lujan v. Gonzales, 84 N.M. 229, 501 P.2d 673 (Ct. App.1972) (the factfinder may consider evidence of household services to the statutory beneficiaries in awarding damages for the pecuniary value of a life).” This is in spite of the fact that it was the wife’s suicide that caused the death of the husband, which left no dependants for whom the lost household services would have been a benefit. Suggested by Everett Dillman
Couch v. Astec Industries, Inc., 2002 NMCA 84 (New Mexico Court of Appeals 2002). This decision reconfirms that a trial court judge can admit testimony by an economic expert about hedonic damages in a personal injury case in New Mexico. Brian McDonald had testified at the trial court level that the value of a statistical life lies between $500,000 and $11 million, with $3 million as the average. McDonald testified that this figure represented “the value of an entire life from cradle to grave and included earnings as well as intangible enjoyment.” McDonald declined to specify a percentage of a whole life that the plaintiff lost because of his injuries. The defense appealed on the basis that failure to specify a percentage rendered his testimony unhelpful to a jury. The Court of Appeals responded: “To the contrary, if McDonald had complied and offered a specific value for Plaintiff’s hedonic damages claim, he would have intruded improperly into the fact finder’s domain.” The court cited Smith v. Ingersoll-Rand Co, 214 F.3d 1235 (10th Cir. 2000) as indicating that the role of an economic expert regarding hedonic damages in New Mexico was one of explaining the general concept of hedonic damages and the nature of the statistical studies in the value of life literature.
Cruz v. Bridgestone/Firestone North American Tire, 2008 U.S. Dist. LEXIS 107379 (D.N.M. 2008). This order of Judge Bruce D. Black grants the part of defendants’ motion in limine to preclude the hedonic damages testimony of M. Brian McDonald and William J. Patterson in a case involving an automobile accident that killed two illegal immigrants and injured a number of others. McDonald offered testimony to the effect that the appropriate range for the value of life in the Value of Statistical Life (VSL) literature was between $5 million and $6 million, but did not offer annual values for lost life enjoyment. Patterson offered testimony that the value of life ranged from $500,000 to $11 million, with an average of about $3 million. The focus of the judge’s decision was on the applicability of the U.S. Supreme Court decision in Hoffman Plastic Compounds, Inc., v. National Labor Relations Board, 535 U.S. 137, 122 S.Ct. 1275 (2002). That decision “prohibits any use of Department of Labor statistics or statutory minimum wages for undocumented workers as it is illegal for any employer in the United States to hire or pay Plaintiffs.” Judge Black said: “Whether or not Dr. McDonald’s risk premium or Mr. Patterson’s labor versus leisure theories are valid, then, begs the question in this case. Both theories create a significant range of values. More significantly, however, both are based exclusively on wage scale and consumer choices in the United States. Several of the Plaintiffs had spent the majority of their working career employed in Mexico and were only sporadically in the United States. . . Neither Dr. McDonald nor Mr. Patterson made any attempt to acknowledge the Mexican citizenship of the Plaintiffs or the legal barriers to their earning the average American wages which are the foundation of both experts’ studies. This court finds that Daubert requires a much more tailored approach.” Judge Black went on to say, however, that he would be willing to consider testimony based on wage losses of workers “similar to Plaintiffs and which were previously disclosed in the Rule 26 reports.”
Hogsett v Hanna, 41 N.M. 22; 63 P.2d 540 (New Mexico 1936). This decision cites the decisions in Cerrillos C.R. Co. v. Deserant, 9 N.M. 49 (New Mexico 1897) and Whitmer v. El Paso & Southwestern Co., 201 F. 193 (5th Cir. 1912) as holding that the standard for loss is the worth of the life of the decedent, taking into account but not restricted to the pecuniary losses of survivors of the decedent. The court also quoted part of a withdrawn opinion in the matter of Valdez v. Azar Bros., 33 N.M. 230 (New Mexico) as follows: “ur statute resembles rather those which provide compensation to the estate than those which provide compensation for pecuniary loss to named kindred. It was those considerations, no doubt, and perhaps others, which impelled the territorial supreme court in Cerrillos C. R. Co. v. Deserant (1987) to establish as the measure of damages in all cases of death by wrongful act, ‘the present worth of the life of the deceased.’ (Note: This language cannot be found in the decision in Valdez v. Azar Bros, when that decision was reissued.)
Lujan v. Gonzales, 84 N.M. 229, 501 P.2d 673 (N.M. App.1972). This decision sets out the standards for recovery in a wrongful death action in New Mexico. On appeal, the defendants challenged the award for loss of household services on the ground that New Mexico’s wrongful death act is based on losses to the estate, not losses to survivors. The Court held that evidence of loss to the statutory beneficiaries proved that the loss of household services was a loss to the estate and held that an award for lost household services was therefore proper.
Marchese v. Warner Communications, Inc., 100 N.M. 313; 670 P.2d 113 (N. M. App. 1983). This New Mexico wrongful death action resulted in a journal awarding $0 for the decedent’s value of life. Plaintiff appealed based on Baca v. Baca, 81 N.M 734 (N.M. App. 1970), Stang v. Hertz Corporation (Stang I), 81 N.M. 348 (N.M. 1969) and Stang v. Hertz Corporation, 467 P.2d 14 (Stang II) to argue that the verdict was insufficient as a matter of law. The Marchese court rejected that argument, pointing out that three cited cases said that a jury may award loss of life damages even in the absence of evidence showing pecuniary loss of survivors, but did not require a jury to do so. The Court cited Baca to the effect that: “There is no fixed standard for measuring the value of a life, and, as in personal injury cases, wide latitude is allowed for the exercise of the judgment of the jury in fixing the amount of such an award.”
Martinez v. Caterpillar, Inc.,
U.S. Dist. LEXIS 97414 (D.N.M. 2007). This is an order of Judge
Robert Haynes Scott granting a motion in limine to bar the hedonic
damages testimony of William Patterson, who offered the present value
for $10,000 of lost pleasure of life over the lifetime of the plaintiff
as a “benchmark” value. Judge Scott wrote that: “This
type of expert opinion testimony invades the province of the jury and
fails to meet the criterial for admission as expert testimony as set
forth in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.
Ct. 2786, 125 L. Ed. 2d 469 (1993). . . [N]owhere in his report does
Mr. Patterson explain how or why he selected this particular value.
Indeed, Plaintiff ‘acknowledge[s] that [the $10,000 value] is a
hypothetical figure.’ Thus, the basis of the benchmark value
appears to be almost entirely arbitrary. . . [T]he Court does not
understand the need to use a hypothetical ‘benchmark value’
when common mathematical equations and symbols serve the same
Romero v. Byers, 872 P.2d 840 (N.M. 1994). This decision in a consolidated case held that New Mexico would henceforth recognize a claim for spousal consortium and household services in a wrongful death action. It also held that a claim could be made in a wrongful death action for “loss of the value of life itself.” The Court said: “We hold that the value of life itself is compensable under our Act. Whether or not expert testimony is admitted for the purpose of providing that value is a matter best left to the rules of evidence of the applicable court.” The Court held that task before a jury is to award “fair and just damages” taking into account both pecuniary and nonpecuniary damages suffered by the decedent, defining non pecuniary damages as follows: “There are two aspects of nonpecuniary damages that make up ‘fair and just’ compensation. Pain and suffering devolves from (1) that which the victim must newly endure and (2) that which the victim may no longer enjoy. The language of the Act clearly contemplates damages that encompass more than the pecuniary loss to th beneficiaries because of the loss to the deceased. In our opinion, the Act goes beyond the loss of decedent’s wages, and encompasses all damages that are fair and just.” The Court also specifically said with respect to the loss of guidance and counsel that a decedent might have provided to minor children: “Loss of guidance and counseling may be considered by a jury in fixing pecuniary loss to the survivors. The jury should be allowed to assess this loss as part of the value of the decedent’s life.”Smith v. Ingersoll-Rand, 1997 U.S. Dist. LEXIS 23443 (D.N.M. 1997); aff'd 214 F.3d 1235 (2000). Stan V. Smith was correctly admitted to explain the concept of hedonic damages based on New Mexico law, but without providing specific calculations for the plaintiff. See 214 F.3d 1235 under 10th Circuit for more details.
Stang v. Hertz Corporation (Stang I), 81 N.M. 69; 463 P.2d 45 (New Mexico 1969). This decision involved the death of a nun who was being paid $11,668 as the equivalent of a school principal. Suit was brought by brothers and sisters who claimed no pecuniary losses as a result of her death. The trial court held that no recovery could therefore take place. The New Mexico Supreme Court reversed and held that recovery may be made even without pecuniary damages to statutory beneficiaries and that the representative of the estate could recover for decedent’s conscious pain and suffering and medical and related care from the injury until death. The Court said: “Our view of the content of our statutes, §§ 22-20-1 and 22-20-3 . . . , after the 1891 amendment, is that damages are recoverable for wrongful death if damages could have been recovered if there had been no death. However, in fixing the amount of the damage, the pecuniary injury (or lack of it) to the statutory beneficiary is to be considered.”Stang v. Hertz Corporation (Stang II), 81 N.M. 348; 467 P.2d 14. (New Mexico 1970). This decision, following Stang I, said: “§ 22-20-3, supra, clearly permits recovery by other than a statutory beneficiary, and recovery may be had even thought there is no pecuniary injury to a statutory beneficiary. Damages are recoverable by proof of the worth of the life of the decedent, even though there is no kin to receive the award.”
Coyne v. Etra, 183 Misc. 2d 514; 703 N.Y.S.2d 869 (N.Y. Misc. 1999). This is a trial court decision in New York regarding the loss of accumulation to an estate. Judge Geoffrey J. O’Connell held that loss of accumulation to an estate falls under past damages in New York’s 50-B legislation. A jury determined that Carol Coyne’s estate would have been enhanced by $1,284,600 if she had lived an additional 28.8 years. Judge O’Connell determined that the loss of accumulation was a past damage that should be calculated as the lost value of the right to receive $1,284,600 reduced to present value as of the date of death on July 1, 1994 based on a discount rate of 5.39 percent. That present value should then be increased by the 9 percent statutory rate from the date of death to the time the award was distributed. Conrad Berenson was the economist for the plaintiff. Leonard Freifelder was the economist for the defense. Berenson had calculated life expectancy from the date of trial, while Freifelder had done so from the date of death and subtracted five years from the date of death to the date of trial. The jury apparently accepted Berenson’s method of projecting life expectancy.
Huthmacher v. Dunlop Tire Corporation, 2003 N.Y. App. Div.
LEXIS 10072 (N.Y. App. 2003). The Court stated: “The plaintiff in
a wrongful death action is entitled to recover damages for only
pecuniary loss, i.e., the economic value of the decedent to each
distributee at the time decedent died. There are four elements of
compensable loss encompassed by the general term “pecuniary loss”: (1)
decedent’s loss of earnings; (2) loss of services each survivor may
have received from decedent; (3) loss of parental guidance from
decedent; and (4) the possibility of inheritance from decedent.”
It added that “decedent’s estate cannot recover damages for future loss
of earnings or loss of services, but only for pain
and suffering, expenses incurred, and loss of earnings up to the
time of decedent’s death.” Question 1 of the verdict sheet erroneously
allowed the jury to make an award to decedent’s estate for loss of past
earnings from the date of decedent’s accident to the date of the
verdict as well as future lost earnings, with no allocation to the four
survivors. The court rejected the calculation of a structured judgement
by plaintiff’s economist that had “simply divided the future loss of
earnings equally among the four survivors” even though the jury had
allocated other damage elements based on specific percentages.
Lawler v Nucastle Motors Leasing, 35 A.D.2d 450 (N.Y. 1970). The New York Supreme Court had stated in Rodak v. Fury, 31 A.D.2d 816 (1969) that “It is a firmly established principle that the remarriage of a widow after the death of her husband is not taken into consideration in computing damages recoverable for the wrongful death of a husband.” This case, however, was about whether the remarriage of a mother could be considered in calculating damages from the death of her daughter. The court held that the rationale for excluding evidence of remarriage is “the same whether the beneficiary be a spouse or be a parent."
Sand v. Chapin, 656 N.Y.S.2d 700 (N.Y.App. 1997). This decision outlines the rights of recovery in wrongful death in the state of New York. A widow was not permitted to recover for the lost earnings or employment opportunities of her decedent husband, nor for her grief or loss of society, nor for her husband’s loss of enjoyment of life, nor for her loss of consortium. As the representative of his estate, she could recover for his pain and suffering and medical expenses in the process of dying, for funeral expenses, and for the lost support the widow and her son could have expected, including loss of parental care and guidance. Submitted by Tony Riccardi.North Dakota
Abbott v. Jarrett Reclamation Services, Inc., 132 Ohio App. 3d 729 (Ohio App. 1999). This decision in a wrongful death action upheld a trial court decision to exclude the testimony of an unnamed economics about hedonic damages.
In the Matter of the Wrongful Death of Jeffrey N. Engle, 2000 Ohio 1955 (Ohio App. 2000). This decision deals with both the reasonableness and the apportionment of the jury’s award in the death of Jeffrey Engle. John F. Burke, Jr., was the economist for the plaintiff. The decision provided a description of aspects of Burke’s testimony relating to lost earnings and lost household services and some of the answers given by Burke in cross examination. The Court interprets the jury as having rejected Burke’s apparently lower discount rate in favor of a calculation based on 5 percent he had provided during cross examination. One of the main issues in this case was the share of the award to be apportioned to the decedent’s wife, who had not been married to the decedent for a long period. For this purpose, collateral source issues were introduced as relevant to the fair apportionment of the award.
Pena v. Northeast Ohio Emergency Affiliates, 108 Ohio App. 3d
96; 670 N.E.2d 268 (1995). The Ohio Court
of Appeals held that evidence of the remarriage of
a widow was properly admitted “under Section 2125.02(A)(3)(b)(iii) of
the Ohio Revised Code, which permits a defendant
in a wrongful death action to present evidence that the surviving
spouse has remarried.” The plaintiff had challenged this section on the
grounds that it was an infringement on the fundamental
right to marry in violation of the Due Process and Equal Protection
Clauses of the Fourteenth Amendment to the United States Constitution.
The Ohio Court of Appeals ruled that the Ohio legislature had
rational grounds for enacting this provision.
Robertson v. Department of Public Safety, 2006 Ohio 2542; 2006 Ohio Misc. LEXIS 418 (Ohio Court of Claims, 2006). This is a judicial decision from the Ohio Court of Claims. The judge provides detailed rationales for the amounts of damages awarded in the wrongful death and survival actions for the death of Joseph Robertson, an 18 year old boy. Robertson’s mother died a year after the death of her son. Plaintiff’s included Alex Robertson, Joseph’s younger brother. The economist for the plaintiff was John F. Burke, Ph.D. The economist for the defense was Gerald Lynch, Ph.D. The judge referred to both economic experts as “highly credible.” Burke presented nine economic scenarios based on one to three years of college, a bachelor’s degree and a masters degree for work lives expectancy, age 65 and age 67. Dr. Burke used fringe benefits based on a national average. Dr. Burke’s rationale was that fringe benefits would have freed up money for possible future inheritance. Dr. Burke also projected the value of 20 to 25 hours per week for Robertson’s father, who was disabled. Dr. Lynch presented calculations based on work life and one to three years of college. Dr. Lynch did not include fringe benefits because they would not have affected survivors. Dr. Lynch projected a value for future inheritance of $220,000. The judge assumed one to three years of college, but thought it was more probable that Robertson would have worked to age 67. The judge agreed with the Dr. Burke’s rationale for including fringe benefits and awarded $296,769 for loss of support or prospective inheritance. The judge awarded $246,000 for loss of services. The judge also awarded loss of society and mental anguish damages of $803,800 to Robertson’s father, $399,000 to the estate of his mother, and $189,000 to his younger brother. The judge indicated in the decision that any insurance benefits received by any of the plaintiffs must be treated as a collateral source setoff in a suit against the state of Ohio and indicated that a future hearing would be held on the collateral source setoff.
Tinch v. City of Dayton, No. 94-3436, 1996 WL 77445 (1996). Interpreting Ohio Law, the 6th Circuit Federal Court of Appeals held that hedonic damages are inadmissible as a compensable element of damages in a survival action under Ohio law.Oklahoma
Green v. Ford Motor Company, 87 Ore. App. 298; 742 P.2d 639 (Ore. App. 1987). The decision reaffirms that remarriage of a spouse does not affect the spouse’s right to recover under Oregon’s wrongful death action and cannot be introduced by a defendant by asking an economist whether his calculations depend on an assumption that the surviving husband would remain single all of his life. This short decision also offers and clear statement of the risk-utility test used for determining liability in product liability actions.
Union Bank of California v. Copeland Lumber Yards, 213 Ore. App. 308 (Ore.App. 2007). Morris Nagl worked as a floor installer from 1953 to 1991. During that period, he was exposed to asbestos-containing material and was diagnosed with mesothelioma in 2003. In 2004, Nagl and his wife brought a personal injury action and obtained a verdict for $659,720.87, plus settlements with other defendants. Nagl died five months later. In 2005, the personal representative of Nagl’s estate and his three surviving children initiated a wrongful death action based on their losses as the result of Nagl’s death. The defendant moved for summary judgment on the ground that the wrongful death action was not permitted by statute, arguing that such an action could be brought only “if the decedent might have maintained an action, had the decedent lived, against the wrongdoer.” The plaintiff argued that not only could the decedent have brought such an action, but did so and won. The defendant responded that the language “had the decedent lived” was critical since the fact of the successful personal injury recovery precluded a further suit based on wrongful death. The Oregon Court of Appeals upheld the trial court’s summary judgment in favor of the defendant.Pennsylvania
Incollingo v. Ewing, 444 Pa. 263; 282 A.2d 206; 444 Pa. 299 (PA 1971). The Pennsylvania Supreme Court issued an initial ruling on January 25, 1971 (444 Pa. 263) and a subsequent ruling after rehearing on October 12, 1971 (444 Pa. 299). Both decisions held that personal maintenance should be deducted from lost earnings in Pennsylvania survival actions to determine losses to the estate of the decedent. The second decision is an elaboration of that point in the first decision. The Court was concerned with the fact that damages with a personally injured, but still living person, are larger under Pennsylvania standards than in the case of a decedent. The court said: “When a negligently injured party is fully disabled, his injury prevents him from supporting himself, from directing his earnings to the benefit of his family or other dependants, and from accumulating an estate. Quite properly, the injured plaintiff should receive as damages his total estimated future earnings undiminished. But if such plaintiff dies, his action, whether commenced or continued by his personal representative, is for the benefit of the estate. We cannot be blind to the reality that neither the deceased person nor his estate is burdened with the personal maintenance costs of the decedent. It thus becomes clear that the proper measure of damages designed to be compensatory must include a deduction based upon decedent’s cost of personal maintenance. On the other hand, the estate should not be deprived of those earnings which are in excess of decedent’s personal expenses, which funds could be distributed through decedent’s estate in much the same manner that the decedent himself might have apportioned them. If we were seeking to compensate for the loss of life itself, it may be true that the best approximation of the value of that life could be cast in terms of an individual’s personal maintenance costs. It has never been the law in Pennsylvania, however, nor do we here choose to hold that the loss of life itself is compensable.”
McClinton v. White, 497 Pa. 610; 444 A.2d 85 (Pa. 1982). This decision defines the way personal maintenance is to be subtracted from lost earnings under the Pennsylvania survival action. The case involves the wrongful deaths of two teenaged boys whose future loss of earnings net of personal maintenance was at issue. The plaintiff had retained Reuben Schesinger as an economist, who had projected that each boy would marry and have expenses equal to 35 percent of lost earnings. The Court held that personal maintenance was something more than minimal survival expenditures, but endorsed language from Bernstein, “Damages in Personal Injury and Death Cases in Pennsylvania (A Supplement),” 26 Pa.Bar.Ass’n. Q. 26 (1954): “that necessary and economical sum which a decedent could be expected to spend, based on his station in life, for food, clothing, shelter, medical attention and some recreation.” This decision does not address the personal consumption reduction that would be used under the Pennsylvania Wrongful Death Act. (Submitted by Jim Rodgers.)
Rapp v. Cameron, 2001 U.S. Dist. LEXIS 24094 (E.D.Pa 2001). This is a judge’s order excluding a portion of the testimony of the economist for the defense, Dr. Robert P. Wolf in a wrongful death/survival action. Dr. Wolf’s report contained information from a Petition for Modification of Custody that included the decedent’s habit of incurring large amounts of debt. The brief order explains the paired nature of Pennsylvania’s wrongful death and survival actions and makes the point that the decedent’s habits of debt are not relevant to what he spent on “personal maintenance.” Plaintiff’s counsel had indicated that damages would not be sought for lost support under the wrongful death act, rendering that part of Dr. Wolf’s report irrelevant. The court added, “However, Dr. Wolf will be permitted to express his opinion that the cost of personal maintenance of the decedent would be approximately 63% of gross wages, in contrast to the plaintiff’s expert’s estimate of 40% since Dr. Wolf’s opinion is based on ‘consumption cost studies’ and not on decedent’s history of debt.”
Sutherland v. Auch Inter-Borough Transit Company, 366 F.Supp. 127 (E.D. Pa. 1973). A recovery for loss of consortium for an engaged to-be husband was permitted where the accident took place less than a month prior to marriage. (Submitted by Jim Rodgers.)Willinger v. Mercy Catholic Med. Ctr., 482 Pa 441, 393 A.2d 1188 (1978). Held that loss of enjoyment of life could not be recovered in a death case or in a case in which the injured party was comotose. (Submitted by Jim Rodgers.)
Wiesel v. Cicerone, 106 R.I. 595 (Rhode Island 1970). This decision makes it clear that evidence of remarriage cannot be introduced in a wrongful death action. However, the Rhode Island Court disagrees with the New Jersey, Illinois and Michigan Supreme Courts on the narrow issue of whether a plaintiff widow can use her prior married name in a wrongful death action. Jacqueline Wiesel had filed her action before remarriage using her prior married name Wiesel. The Rhode Island Supreme Court required that she be referred to by her prior married name during the trial to avoid the inference that she had remarried.South Carolina
Cherry v. State of Tennessee, 2002 Tenn. App. LEXIS 523 (Tenn. App. 2002). This decision references the fact that Drs. Parker Cashdollar and Marcus Cohen were retained as economists by the plaintiff and defense respectively, and discusses their opinions about lost earning capacity in the wrongful death of a mental institution patient. Dr. Cashdollar based his calculation of lost earning capacity on the assumption that the decedent would have returned to the labor force in a job similar to his old job one year after his death. Dr. Cohen maintained that the pecuniary value of the decedent could not be determined because there was no reasonable basis on which to assume that the decedent would ever have been able to return to the labor force. Further, since he had been incarcerated before his commitment to the mental hospital and had been fired from his job for poor performance, Dr. Cohen disagreed with Dr. Cashdollar’s assumption of possible earnings if the decedent was able to return to the labor market. The plaintiff dropped the claim for lost value of life of the decedent (the term used in Tennessee for lost pecuniary value of lost earning capacity) and the court did not indicate its attitude toward assumptions made by the two economists.
Garner v. United States, 2009 U.S. Dist. LEXIS 16350 (E.D. Ark. 2009). This order interpreted Tennessee law as not allowing an award for the lost enjoyment of life in a wrongful death action and therefore excluded the direct hedonic damages portion of the economic expert report of Dr. Stan V. Smith, but did not exclude his values for lost consortium, holding that Tennessee law allowed for such damages to be awarded to survivors.
Jordan v. Baptist Three Rivers Hospital, 984 S.W.2d 593 (Tenn. 1999). This decision reverses a 1903 decision of the Tennessee Supreme Court that precluded damages for loss of consortium. The Court held that “the pecuniary value of a deceased’s life includes the element of damages commonly referred to as loss of consortium.” The decision provides a history of the wrongful death standards in Tennessee leading up to the current decision. It holds that Tennessee’s approach to wrongful death is “a hybrid between survival and wrongful death statutes, resulting in a statutory scheme with a ‘split personality.” The first classification of damages is “for injuries sustained by the deceased from the time of injury to the time of death,” including medical expenses, physical and mental pain, funeral expenses, and loss of earning capacity.” The second classification: “permits recovery of incidental damages suffered by the decedent’s next of kin.” The Court explained: “Incidental damages have been judicially defined to include the pecuniary value of the decedent’s life Pecuniary value has been judicially defined to include ‘the expectancy of life, the age, condition of health and strength, capacity for labor and earning money through skill, any art, trade or profession and occupation or business, and personal habits as to sobriety and industry.’ . . Pecuniary value also takes into account the decedent’s probable living expenses had the decedent lived.” The decision goes on to talk at length about parental consortium provided to a minor child, but adds that: “Adult children may be too attenuated from their parents in some cases to proffer sufficient evidence of consortium losses. . . The adult child inquiry shall taken into consideration factors such as closeness of the relationship and dependence (i.e., of a handicapped adult child, assistance with day care, etc.” Whether an economic expert can testify about the value of loss of consortium was not addressed.
Patterson v. Dunn, 1999 Tenn. App. LEXIS 374 (Tenn. App. 1999). Defense had challenged, among other issues, the testimony of Dr. Thomas O. Depperschmidt. Dr. Depperschmidt had used personal maintenance deductions based on a two person household earning $40,384 per year even though the decedent was divorced with a small child and earning a good deal less than $40,384. He had used a reduction of 25.18% until the child reached majority and 50.55% thereafter. Depperschmidt indicated in cross examination that he had not consider any of the plaintiff’s specific budgetary items in his calculations of the personal maintenance reduction. The trial court ruled that the testimony was admissible and the appeals court ruled that the issue of its admissibility had not been preserved for appeal.
Spencer v. A-1 Crane Service, Inc., 880 S.W.2d 938 (Tenn. 1994). Hedonic damages are not recoverable in a death case.
Thurmon v. Sellers, 62 S.W.3d 145 (Tenn. App. 2001). This case involved the wrongful death of a five year old child. Dr. Thomas O. Depperschmidt testified to a net loss of earnings figure of $1,160,000. This based on the parents’ education and money income figures from the Department of Commerce, with subtraction for personal maintenance costs that assumed that the child would have married and have had two children. After hearing this evidence, the trial court awarded $700,000. The plaintiff challenged the award as inadequate on the basis of the evidence, but the court of appeals said: “Expert testimony is not conclusive, even if uncontradicted, but is rather purely advisory in charter, and the trier of facts may place whatever weight it chooses on such testimony.” This decision provided the following description of what may be recovered in a Tennessee Wrongful Death action (citations omitted): When recovery is based upon the pecuniary value of the decedent’s life, the trier of fact must make this determination upon a consideration of several factors, including the decedent’s life expectancy, age, condition of health and strength, capacity for labor and for earning money through skill in any art, trade, profession, and occupation or business. . . That award should then be reduced by deducting the decedent’s probable living expenses had the decedent lived. . . In the case of a minor child, those living expenses are the costs of associated with child rearing. In the case of a very young child, estimates of the child’s future earnings and contributions are speculative at best. . . For this reason, it can be helpful to have expert testimony concerning the valuation of a child’s pecuniary losses. . . Pecuniary value also necessarily encompasses the value of human companionship. Therefore, in determining the amount of consortium damages, courts must also consider the benefits the child bestowed on the family, such as companionship, comfort, society, attention, cooperation, affection, care and love. Because it is impossible to generalize on the extent to which family members enjoy each other’s companionship and society, the measurement of a particular child’s consortium must be decided on a case by case basis. It must be noted, however, that the recovery of such losses are restricted to pecuniary losses, that is the actual monetary value of the life of the child. Thus, parents cannot recover for the sorrow and anguish endured as a result of the child’s death. This decision also provided a clear definition of “consortium” in Tennessee law, saying: “Although ‘consortium’ historically denoted the loss of an injured spouse’s services and society, it recently has been broadened to encompass general notions of comfort, support and companionship in the parent-child relationship, as well as in the spousal relationship.”Wallace v. Couch, 642 S.W.2d 141 (Tenn. 1982). This decision discusses the meaning of the personal maintenance deduction in Tennessee. It also discusses the relationship between the concept of personal maintenance in Tennessee and in Pennsylvania and New York. (Pennsylvania still uses a similar concept, but apparently not New York.) The decision involves recovery by the father of a teenager killed in an automobile accident. The trial court judge had charged the jury with subtracting “the deceased’s probable living expenses had the deceased lived.” The trial court was upheld by the Court of Appeals and the decision was then appealed to the Supreme Court of Tennessee. The Supreme Court cited several decisions from Tennessee and Pennsylvania in support of the proposition that personal maintenance deductions should be made, but specifically adopted the language about measurement of Calfee v. O’Neal Steel, Inc, an unreported 1976 decision of the Tennessee Court of Appeals: “In estimating damages, the deduction of the decedent’s probable personal living expenses, had he lived, should extend to those personal expenses which, under the standard of living followed by him, would have been reasonably necessary for him to incur in order to keep himself in such condition of health and well-being that he could maintain his capacity to enjoy life’s activities, including the capacity to earn money.” Submitted by Parker Cashdollar.
Columbia Medical Center v. Hogue, 132 S.W.3d 671 (Tex.
App. 2004). This decision evaluates loss of inheritance as an element
of damages in Texas. The Court said: “An (unnamed) economic
expert testified that based on prior history, it was expected that 85%
of decedent’s salary would go toward supporting his family. The
15% savings was founded on the historical fact that decedent
contributed 5% of his salary to a 401K plan and an estimated savings
rate of 10%. At the time of his death, decedent had accumulated $65,000
in cash and money market funds, almost $51,000 in common stock, and
equity in his home of $85,000. At the time of his death, thee
assets’ combined value were over $200,000. Finally, the economic
expert provided a detailed analysis wherein he arrived at a dollar
amount for the future expected estate of decedent. He relied on the
following factors: past and future lost earning capacity, past and
future loss of household services, prior earnings from employment
records and tax returns, likely raises and bonuses, 401K contributions
and employer matching contributions, decedent’s personal
consumption, life expectancy tables, decedent’s savings during
his lifetime, and the fact his will left his entire estate to his
wife.” The court also said: “Appellant claims past history
does not accurately predict the future performance of decedent’s
investments, expenses and health. However, to provide that level of
evidentiary detail appellant seeks would eviscerate lost inheritance
damages.” Therefore, the Court held that the jury finding for
lost inheritance “was not so weak as to be clearly wrong and
Douglas v. Delta Air Lines, Inc., 709 F.Supp. 765 (W.D. Texas 1989). This case involved a wealthy executive who was killed in an air crash. The plaintiff presented an expert on executive careers, Dr. Jane Giacobbe, who had her Ph.D. in Industrial Relations from Cornell, and an economic expert on lost earnings projections, Dr. Fred Harris, who had his Ph.D. from the University of Virginia, and another economic expert on lost inheritance, Dr. James Vinson, who had his Ph.D. from the University of Houston. The defense attempted to counter with Mr. John Sartain, who had his MBA from Southern Methodist University. The court was not impressed with the work of Mr. Sartain, but thought the work of the three plaintiff experts was reasonable. The decision provides an in depth discussion of the court’s thinking. The court was interpreting the Texas Wrongful Death Act and ruled, based on Yowell v. Piper Aircraft Corp., 703 S.W.2d 630 (1986), that loss of inheritance was recoverable in Texas. The court also ruled that: “Because there is no evidence to support such an award, the Court will not make any award of damages for the loss of household services.
Garza v. Berlanga, 598 S.W.2d 377 (Tex. App. 1980). This decision approved trial court testimony about the value of moral guidance services provided by a decedent in a wrongful death action. The Court described the testimony as follows: “Dr. Benz, an expert in the field of economics, testified as to the value of the services which Linda Berlanga would have performed for the three children, had she lived up until the time they were 22 years of age. He then gave values for services in the areas of moral guidance and housework. The values given were based on the life expectancy of the deceased and the dependency of the minor plaintiffs until they reached 22 years of age. As a comparable for loss of household services, he considered the services of a housemaid paid the minimum wage rate, projected the wages until the youngest child would reach the age of 22, added an anticipated inflation factor, figured in a discount rate, and arrived at a conclusion that the sum of $134,112 would be the total pecuniary loss for those types of services. In arriving at the economic value for the loss of moral guidance, he equated the loss as being equal to the annual salary of a school teacher and, figuring in the same factorss, arrived at the total sum in this area of $159,208.00. In obtaining a figure as to how to divide these amounts among the three children, he gave his opinion as to certain percentage figures based on their ages with the youngest child receiving the most and the oldest the least. Suggested by Everett Dillman.
Hyundai Motor Company v. Chloe, 882 S.W.2d 606 (Tex. App. 1994). “Dr. Everett Dillman, an economist, evaluated the damages in this case. He testified that Chloe’s mental anguish and emotional pain and suffering would amount to $912,477; that Pele could have contributed $564,777 to Chloe over Cloe’s lifetime; that past and future loss of companionship would amount to approximately $912,477; and that the value of life lost, based on the majority of studies, would range from $2 million to $2.5 million.” The decision does not indicate that the admissibility of Dr. Dillman’s testimony was challenged and the Texas Court of Appeals found that all of the evidence taken together was sufficient to justify the trial court’s award of $661,876.
Lopez v. City Towing Associates, 754 S.W.2d 254 (Tex. App. 1988). Testimony by an economist regarding the value of lost guidance, counseling, love, affection, companionship and society suffered by plaintiffs was excluded by the trial court. “[T]he economist calculated average earnings of the ‘the helping professions’ – the clergy, psychologists, social workers and counselors – the professions that attempt to provide the same kinds of benefits provided by a mother. He arrived at a figure of approximately $10 per hour.” The appeals court upheld the trial court in excluding testimony by the economist.Moore v. Lillebo, 722 S.W.2d 683 (TX 1986). “Pecuniary loss for the parent of an adult child is defined as the care, maintenance, support, services, advice, counsel and reasonable contributions of a pecuniary value that the parents would, in reasonable probability, have received from their child had the child lived. . . The definition used will vary according to the class of beneficiary and decedent, e. g. spouse, parent, adult child or minor child. The court distinguished pecuniary damages as thus defined from mental anguish and loss of society and companionship, which were apparently not pecuniary damages.
Seale v. Winn Exploration Company, Inc., 732 S.W.2d 667 (Tex.
App.1987). The Texas Court of Appeals upheld
the trial court decision to preclude the testimony of
economist Dr. Everet Dillman about the present value of appellant’s
loss of society and comfort based on a $9.50 hourly average income of a
psychiatrist, multiplied times one hour per day over the
life expectancy of appellant. The court said: “The trial court properly
excluded Dillman’s testimony. The average hourly income of a
psychiatrist is not relevant to the ultimate issue to be determined by
jury; the value of the loss, love, affection, companionship and society
as between the son and his mother. Therefore, Dillman’s
testimony, based on the hourly average income of a psychiatrist,
possessed no traces of special knowledge which jurors do not possess in
deciding this issue. Further, the trial court allowed Dillman, the
economist, to testify generally with regard to computing present value
without basing it upon a specific element of damages.”
Yowell v. Piper Aircraft Corp., 703 S.W.2d 630 (1986). This decision holds that loss of inheritance is recoverable under the Texas Wrongful Death act, but adds: “Under a loss of inheritance claim, however, the claimant must prove not only the probability that the decedent would have accumulated money or assets, but also the probability that the decedent would have left this accumulation by will or inheritance to the statutory beneficiaries.” The decision provides extensive discussion of the right to recover lost inheritance and the similarity of that right to rights to recover under wrongful death statutes in other states that all recovery by the estate rather than survivors. It lists Arizona, California, Colorado, Delaware, Florida, New York, Utah and Wisconsin as allowing recovery for loss of inheritance and cites only Michigan as not allowing such recovery. (Idaho also does not allow recovery for loss of inheritance on grounds similar to Michigan and Ohio specifically allows recovery for loss of inheritance by statute).Utah
VermontClymer v. Webster, 156 Vt. 614 (Vt. 1991). Parents of an adult child, as well as a minor child, can recover damages in Vermont for loss of companionship resulting from the death of the child. Juries should consider the physical, emotional and psychological relationship between the parents and the child, and should examine the living arrangements of the parties, the harmony of family relations, and the commonality of interests and activities.
Balmer v Dilley, 81 Wn.2d 367 (Wash. 1972). This short decision outlines damages recoverable under the state of Washington’s survival action statute for the death of a child. The Court cited Hinzman v. Palmanteer, 81 Wn.2d 327, 501 P.2d 1228 (1972) as allowing recovery for: “The probable worth of the decedent’s future net earnings had he lived to his normal life expectancy. Personal expenses are deducted from gross earnings to reach the net.” The Court also reversed a ruling of the trial court that recovery for “loss of companionship and injury to, or destruction of, the parent-child relationship” was limited to the period of the child’s minority. The Court held that recovery could occur for all ages of the child when relationship with the parents was possible. Suggested by Marc Weinstein.
Federated Insurance Company v. Estate of David Jason Norberg, 101 Wn.App. 119 (Wash. 2000). This decision explains the distinction between recovery by an estate in a survival action and recovery by survivors under the Washington wrongful death act for loss of accumulations to an estate.
Lockhart v. Besel, 71 Wn2d 112 (Wash.1967). The measure of damages allowable in the state of Washington under RCW 4.24.010 for the wrongful death of a minor child includes, in addition to the pecuniary value of the child’s services, the loss of companionship of the child during his minority without giving any consideration for grief, mental anguish, or suffering of the parents by reason of the child’s wrongful death.
Otani v. Broudy, 2004 Wash. LEXIS 435 (Wash. 2004). This decision was appealed to the Washington Supreme Court to resolve whether damages are available to an estate for a decedent’s loss of enjoyment of life (LOEL) under Washington’s survival statutes. The decision provides a review of Washington’s general and special survival statutes and how it interacts with Washington’s wrongful death statute. It holds by a 7 to 3 margin that recovery is not available for LOEL, holding that “loss of enjoyment of life is not a claim Mrs. Otani could have brought had she survived because it is not a loss she experienced in life.” The court held that the standard in a survival action is what an individual could recover if still alive, but one cannot recover for what one lost by being dead if one is still alive.
Tait v. Wahl, 97 Wn. App. 765 (1999). The Washington general survival statute (RCW 4.20.046(1)) does not permit recovery by a decedent's estate for a decedent's noneconomic damages.
Wooldridge v. Woolett, 96 Wn.2d 659 (Wa. 1981). This decision cites the Pennsylvania decision in Willinger v. Mercy Catholic Medical Center, 482 Pa. 441, 393 A.2d 1188 (1978) as persuasive authority concerning the wrongful death act and survival action in the state of Washington with respect to the issue of whether loss of enjoyment of life damages are recoverable in a death case. The Wooldridge Court said: “The loss of life’s amenities should be recoverable only by plaintiffs who survive compensable injuries, since such lost pleasures are personal to that individual and essentially represent pain and suffering. Damages for loss of life’s amenities should not be recoverable in survival action, however, because such damages are a back-door method of obtaining compensation for pain and suffering, or for obtaining those damages otherwise recoverable in a wrongful death action. . . We believe that loss of the ability to enjoy life’s pleasures and amenities is not an asset to be accumulated by the deceased.”
West VirginiaAndrews v. Reynolds Memorial Hospital, 201 W.Va. 624; 499 S.E.2d 846 (1997). The West Virginia Supreme Court ruled that the lost future earnings of a decedent infant were recoverable and not speculative if the jury award was within the range of estimated future earnings. Dr. John Burke had projected three scenarios based on (1) four years of college, (2) one to three years of college, and (3) a high school education and had been admitted by the trial court to testify about those scenarios. The trial court had granted a new trial on several grounds, but was reversed by the Supreme Court in favor of the jury verdict.
Czapinski vs. St. Francis Hospital, 2000 WI 80; 236 Wis. 2d 316 (WI 2000). The Wisconsin Supreme Court held that Section 893.55(4)(f), which sets forth the damages for loss of society and companionship recoverable for a wrongful death resulting from medical malpractice does not allow such damages for adult children of the decedent. Such damages are apparently allowed in other types of wrongful death actions in Wisconsin. The Court also held that the disparate treatment between different categories of wrongful death actions does not violate the equal protection clause of the Wisconsin constitution. Suggested by David Jones.
Jensen v. Heritage Mutual Ins. Co., 23 Wis. 2d 344; 127 N.W.2d 288 (Wisconsin, 1964). The decision held that the remarriage of a widow was among proper facts for the jury to have taken into account in making their awards for loss of society and companionship. The Court explicitly rejected the rationale “that a jury, in fixing damages for wrongful death, must consider only the facts that exist at date of death, and may not take into account a remarriage before trial.” Suggested by David Jones.
Pierce v. American Family Mutual Insurance Company, 2007 Wisc. App. LEXIS 509 (Wis. App. 2007). This decision held that loss of society and companionship can be awarded to adult children of a decedent in Wisconsin, reversing the trial court which had held that such damages were only available to minor children. The Court of Appeals also upheld the trial court’s decision to allow the testimony of economist Dr. Karl Egge, discussing Dr. Egge’s calculations for loss of financial support, loss of household services and loss of inheritance at some length.
Prunty v. Schwantes, 40 Wis. 2d 418; 162 N.W.2d 34 (Wis.
1968). The Supreme Court of Wisconsin found that the “lost investment
theory” for awarding damages to parents based on Wycho v. Gnodtke, 361 Mich. 331
(1960) in Michigan does not
comport with Wisconsin law, but expresses sympathy for the
concept, citing particularly Fussner v. Andert, 261 Minn. 347
(1961), Lockhart v. Besel, 71 Wash.2d 112 (1967), Van
Cleave v. Lynch, 109 Utah 149 (1946).
Schaefer v. American Family Insurance Company, 192 Wis. 2d 768 (Wis. 1995). “The sole issue on review is whether evidence of receipt of insurance proceeds should be excluded at trial on public policy grounds. We conclude that there is no public policy reason to exclude evidence of insurance proceeds in claims for lost inheritance. . . We hold that, as a matter of law, evidence that Donald Schaefer owned a life insurance policy when he died is relevant to establishing the decedent’s propensity for thrift and savings and relevant to establishing the decedent’s earnings in excess of expenses for personal maintenance and support of dependents. Whether the insurance policy at issue is relevant to the damage computation, however, cannot be determined by this court on the record. Furthermore, evidence that plaintiffs received proceeds from the policy’s death benefit is not relevant to establishing the claim for lost inheritance because those plaintiffs were not named as beneficiaries of the life insurance policy. Therefore, the policy per se cannot be used to infer the decedent’s beneficent disposition toward the plaintiffs. Nor, is the death benefit from a life insurance policy includable in the damage computation because it is neither a form of savings relevant to establishing the decedent’s propensity toward thrift, nor a form of investment.”