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Verdicts and settlements are on the rise in wrongful death cases

Inflation, juror attitudes, CIVJIG change cited as some of the factors

Author / Coordinator: Barbara L. Jones
Minnesota Lawyer
June 2003

Two notably large results for plaintiffs in Minnesota wrongful death cases this year illustrate the widely held belief that verdicts and settlements in those tragic cases are on the increase.

Members of the plaintiffs’ and defense bar agree that juries are generally awarding more in cases of death or catastrophic illness, but the reasons that the lawyers give for the rise in value in wrongful death cases are as varied as their trial strategies. Some think that the juries relate to the hard numbers of special damages, and will make their award based on how well these numbers are proved. Others believe that damages for the more-difficult-to-define losses of comfort and companionship are the key to a significant result.

Those in the latter group point out that some of the significant results have come about in actions involving the deaths of babies and adults with no dependents despite the fact that loss-of-income awards are not available in such cases. For example, in Olson v. Christian Builders, Inc., a Hennepin County jury last March awarded $3 million in a case in which a 22-year-old single man with no children died in a motorcycle accident. The decedent was survived by his parents and two brothers. The plaintiffs in that case presented no evidence of economic loss. (The defendant’s motion for remittitur to $1.5 million is under advisement.)

The plaintiff’s lawyer in that case, John Sheehy of Minneapolis, also recovered a $3.5 million verdict in Steele County in 2001 for the death of a 54-year-old laborer who was survived by a wife and two grown children.

“These awards are not out of line with other values in society,” said Sheehy. “I don’t think there’s an explosion in awards. It’s the inflation in values.” When juries know that actors make $2 million a week and executives make $9 million a year, the value they will assign to a death is higher, he added.

“These deaths affect many generations,” Sheehy pointed out. “They have a tremendous impact. Juries understand that.”

Minneapolis attorney James R. Schwebel told Minnesota Lawyer that recent legal developments enable juries to make the large awards.

In 1999, the Minnesota Civil Jury Instruction Guide (CIVJIG) for wrongful death cases was amended to remove the words pecuniary loss.

“That is a big change. It is a word defense lawyers would argue and juries would get hung up on, as if it meant they could only count dollars and cents,” said Schwebel.

CIVJIG 91.75 instructs the jury to determine the amount of money that will fairly and adequately compensate the claimant for the losses sustained as a result of the decedent’s death. The jury is instructed to consider earnings, support, and out-of-pocket expenses, but is also instructed to consider counsel, guidance, aid, advice, comfort, assistance, or protection the decedent would have provided. However, the grief and mental distress of the plaintiff is not a factor.

The instruction also tells the jury to determine the amount of time the decedent and the plaintiff would have had together that is now lost. The JIG thus invites an argument that will guide the jury to a per diem analysis in setting the damages (i.e., the loss of comfort, etc. is worth a certain amount per day), which can result in a high verdict.

“All the plaintiff’s lawyer has to do is plug in the number for each survivor,” Schwebel said.

The 1981 Supreme Court case of Jones v. Fisher and the 1988 Supreme Court case of Ferguson v. Orr also stand for the proposition that damages should be awarded for loss of companionship, Schwebel continued.

Schwebel and Minneapolis lawyer Martin T. Montilino were able to obtain verdicts in 2000 of $l.373 million each for two single men in their 20s. These damages were based purely on “human loss,” Schwebel said. Schwebel said that a per diem formula and suggested dollar amounts helped the jury calculate the damages. (The families were unable to collect the entire award because the case, which involved a police car, was subject to municipal liability caps.)

Schwebel agrees with Sheehy that the increase in death verdicts is also a result of a cultural change.

“Juries aren’t any more compassionate than they used to be, but they are living in a world where $1 million is commonplace,” he said, noting that the decedents had close but not atypical family relationships.

Close and personal

Proving the quality of family relationships is critical in obtaining significant recoveries for companionship, lawyers say.

Hallock, Minn., attorney Robert M. Albrecht recently obtained a $215,000 settlement from two insurers in a case involving a 17-year-old male killed in a two-car accident. He recalled that in the 1980s an adjuster would probably have valued that case at about $100,000.

“Good family relationships are important,” Albrecht said. “Adjusters like to see that.” Albrecht’s case involved testimony from the parents and siblings about the family’s ties to one another and the achievements of the decedent, as well as his character. “You could tell he was brought up right,” said Albrecht.

Albrecht also believes juries can readily empathize with the loss-of-companionship claim, which may lead to a significant award. As an example, Albrecht cites a case involving an 82-year-old woman survived by her husband. The highest offer was $80,000; the verdict was $212,000.

Minneapolis attorney Peter A. Schmit agreed that demonstrating strong familial bonds is important. A decedent’s civic awards and public accolades won’t save the case if he or she doesn’t have strong relationships, he stated.

Making it real  

According to Minneapolis attorney William Manning, the comfort and companionship element of a wrongful death case will turn on the lawyer’s ability to be able to describe and make real the family’s losses. Manning recently settled a case for $975,000 on a Naig settlement, which preserves the workers’ compensation claims. The case was also free of subrogation claims. The 29-year-old decedent was survived by his wife of four months, his parents and an adult brother.

The obligation of a lawyer representing the family of a decedent is to stand in the family members’ shoes, Manning said.

“Their pain has to become your passion,” he explained. Lawyers should provide emotional support to their clients and let them open up, he said. Lawyers ought to commit themselves to a relationship with the wrongful death client that won’t end when the case does, he added. “You’re in a counseling relationship,” he explained. “This is an indescribable experience. You will cry together for a long time.”

Minneapolis attorney Phillip Cole, who has represented both plaintiffs and defendants in wrongful death cases, sees a sea change in wrongful death verdicts in the cases of children, including newborn babies.

“The rhetorical advantages to a plaintiff in a death case are immense” and can compensate for the lack of special damages, according to Cole.

Cole also believes that plaintiffs’ “arguments are getting more sophisticated” in wrongful death cases. He added that lawyers may be getting more sensitive to their clients’ feelings. “The low value on death cases was attached by lawyers,” he noted.

Robert K. Randall, also of Minneapolis, said that good lawyering is at least partly responsible for the increase. “We’ve become more adept at conveying how valuable the life of a child is,” he explained.

Randall said that a $125,000 verdict in the case of a baby was upheld by the Supreme Court in the 1980s. The defense had alleged that the $125,000 verdict was ludicrous, said Randall. “That’s when six-figure awards for children started,” he added.

A high-water mark was set in 1993 when Minneapolis attorney James Kaster recovered a $5.2 million verdict and a $9 million punitive damage verdict on behalf of the father of an 11-year-old boy in a wrongful death action. The case had many unique features; the defendants included the boy’s mother, stepfather, the Christian Science Church and others. The boy died of rapid onset juvenile diabetes after being denied medical care on religious grounds.

The $9 million punitive damage award against the church was denied on constitutional grounds and the $5.2 million was reduced on remittitur to $1.5 million. The defense argued that the average verdict for the death of a child was between $150,000 and $200,000, Kaster told Minnesota Lawyer.

The high verdict in the Christian Science case was attributable to the following three things, according to Kaster:

• the father was an effective witness and was overwhelmed with loss;
• the negligence was extreme; and
• the defense’s “remarkable” strategy of blaming the father for the death of his own son when the father wasn’t even in town.
High-wage earners

While “soft” damages have increased in importance in wrongful death cases, hard numbers still matter, lawyers observed.
“Juries like hard numbers,” explained defense attorney Richard J. Thomas of Arden Hills. “The cost of health care has increased significantly more than inflation.”

Thomas agrees — with some qualifications — to the general proposition that wrongful death verdicts are increasing.

First of all, he points out, medical malpractice verdicts across the country are on the rise. (However, he noted, 80 to 90 percent of medical malpractice cases are still won by the defense.)

Auto death cases have not changed much — except for the “Sheehy factor,” Thomas said. “If you take [John Sheehy] out of the mix, the cases have been relatively stable,” Thomas explained. “What they’re doing is what they’ve always done — award reasonable compensation as opposed to inflated numbers.”

Hard numbers may have been the key to another seven-figure death case this year, a settlement last February of $4,150,000. The only details available concerning the confidential settlement are that the decedent, a 38-year-old man, was killed in an aviation accident and was survived by a 31-year old widow and a 1-year-old son.

Two elements leading to a significant recovery came together in that case — a young wage earner and good liability, said Minneapolis attorney John M. Dornik, who represented the plaintiff.

Another variable in that case was the wealthy defendant, an aviation company. Deep pockets relieve the jury from worrying about the defendant’s ability to pay a claim, said Schwebel.

“You always get big money in aviation cases,” observed Randall.

Plaintiffs’ attorney Schmit recently settled a medical malpractice wrongful death case for $350,000 for a 46-year old farmer survived by a wife, two adult children and two minor children. The case was venued in a rural county, and the liability was hotly contested, reducing the value of the case, he said.

“Minnesota juries never give anything away, especially rural juries,” Schmit said. “The disposition to give money for care and companionship hasn’t changed. They still can be fairly cruel in that regard.”

Schmit noted that many jurors in med-mal cases still identify with the medical practitioners, which has an impact on the awards.
Verdicts based on hard numbers may be better protected from remittitur challenges.

Minneapolis attorney Rolf E. Sonnesyn, who represented the defendant in Olson and has filed a remittitur challenge, said in that case the jury awarded $2 million for comfort and companionship for the time period between the accident and the trial, which was less than two years.

“That was excessive and indicative of an award for grief or mental distress, which is not part of the wrongful death statute,” he stated.

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