InsideCounsel » August 2007
Illinois Expands Damages in Wrongful Death Suits
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...
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.
Like all legislation related to tort law, HB 1798 was subject to heavy criticism from reform advocates who argued the law would harm businesses and the Illinois economy. The Illinois State Medical Society suggested in a letter to Blagojevich that the bill would decrease access to healthcare in Illinois by driving up malpractice insurance premiums; trial lawyers responded by pointing out that the bill merely puts bereaved parents on equal footing with bereaved pet owners, who have been able to collect non-economic damages since 2003.
But now that the law is effective, both sides agree: While the admissibility of grief may give plaintiffs an edge in arguments, that advantage will have little effect on defendants'
financial costs.
"It may have an impact, in that people can do explicitly what they've been doing implicitly in cases for a long time," says Philip Harris, a partner at Jenner & Block in Chicago. "[But] this has no impact on the most critical element of the case, which is the liability."
Liability v. Damages
Some Illinois attorneys argue that the amended law will actually clear up juries' understanding of what damages are permissible in wrongful death cases.
"I don't think it's a big monetary difference, but I think it's a big difference in terms of the jury understanding what the loss is," says plaintiffs' attorney John Nisivaco of Chicago's Dolan & Nisivaco, chair of the tort law section for the Illinois State Bar Association.
That's because juries were effectively handing out non-economic damages already under the eight categories of "loss of society" that were allowable. Now, Nisivaco says, trial lawyers get to say explicitly what they had tried to argue more subtly all along. Thus, he predicts that juries will be less confused about what harms they may consider when determining damages.
