For in-house counsel concerned about managing their liability, Illinois' recent expansion of wrongful death damages may seem like a step in exactly the wrong direction. But fear not, say both sides of the trial bar: Effectively, HB 1798 may turn out to be mainly a cosmetic change.
The bill, which Gov. Rod Blagojevich signed into law May 31, amends the state's Wrongful Death Act to allow plaintiffs to recover damages for grief, sorrow and mental suffering--non-economic harms. It brings Illinois law into line with 23 other states that allow grief and sorrow damages in wrongful death cases. Previously, the law allowed Illinois plaintiffs to claim only "pecuniary" losses related to a death, such as loss of the decedent's wages or funeral costs. Courts had expanded the definition of pecuniary damages broadly enough to include damages for "loss of society," but Illinois juries were still specifically instructed not to consider the plaintiff's grief in their decisions.
Furthermore, Harris says, the new law expands damages, not liability itself. If defense attorneys are doing their job right, he says, an expansion of damages could be irrelevant.
"Wrongful death cases with good plaintiffs are won, like most cases, on the basis of liability, not damages," he says.