Non-Economic Damages in Wrongful Death Cases
Wentling, Focus Groups, and Ball
By Sylvester "Sly" James, Jr.
Adding up the economic losses is the easy part in a wrongful death case. It is far more difficult to convince a jury to consider repayment of significant non-economic losses. Juries find it difficult to evaluate non-economic harms and we, the trial lawyers, often do too little to show them how.
We must find ways to focus jurors' attention on the appropriateness of placing value on a person's life, even if the direct equation is somewhat less precise. In the process of focusing juror attention on damages, we must separate the process and consideration of economic harms from the process of considering money for non-economic harms.
As we separate our discussion with the jury about economic losses and non-economic harms, we should define exactly which losses are economic and which are non-economic.
I. How do you put a value on a person's life?
The most consistent refrain that we hear from focus group participants wrestling with the concept of non-economic damages is: "How do you put a value on a person's life?" The question is often followed by the statement: "Money won't bring them back." If we can adequately respond to these two statements, our chances of recovering non-economic damages in wrongful death cases will increase dramatically. If we do not help them, juries will find their own methods to compute non-economic damages.
The purpose of non-economic damages is not to compensate the decedent for the loss of his/her life; but rather to compensate the survivors for those things lost as a direct result of the decedent's death. Those losses are spelled out at § 537.090.
•§ 537.090. Damages to be determined by jury-factors to be considered
In every action brought under section 537.080, the trier of the facts may give to the party or parties entitled thereto such damages as the trier of the facts may deem fair and just for the death and loss thus occasioned, having regard to the pecuniary losses suffered by reason of the death, funeral expenses, and the reasonable value of the services, consortium, companionship, comfort, instruction, guidance, counsel, training, and support of which those on whose behalf suit may be brought have been deprived by reason of such death and without limiting such damages to those which would be sustained prior to attaining the age of majority by the deceased or by the person suffering any such loss. In addition, the trier of the facts may award such damages as the deceased may have suffered between the time of injury and the time of death and for the recovery of which the deceased might have maintained an action had death not ensued. The mitigating or aggravating circumstances attending the death may be considered by the trier of the facts, but damages for grief and bereavement by reason of the death shall not be recoverable.
Note that the statute says "factors to be considered." Therefore, it is important to both define the factors and, where possible, to expand them. When defining the factors, it may be advisable to be familiar with their plain meanings:
"Service"
"Service" may be defined as:
1. Employment and duties or work for another, as for a government;
2. The performance of work duties for a superior or as a servant;
3. a. Work done for others as an occupation or business;
b. A variety of work done for others, especially for pay.
"Consortium"
Consortium has many meanings. In common vernacular, a consortium means:
1. a. An association or a combination as of business, financial institutions, or investors, for the purpose of engaging in a joint venture;
b. A cooperative arrangement among groups or institutions; a library consortium.
2. An association or society.
3. Law provided the spouse for the company of, help of, affection of, and sexual relations with his or her mate.
Another definition of consortium is an agreement, combination, or group (as of companies) formed to undertake an enterprise beyond the resources of any one member. In the legal sense, it is a marital partnership. It means "the right of one spouse to the company, affection, and assistance of and to sexual relations with the other; also: the right of a parent or child to the company, affection, and assistance of the other.
"Companionship"
Companionship means the relationship of companions; fellowship.
"Comfort"
1. To soothe in time of affliction or distress.
2. To ease physically; relieve.
3. A condition or feeling of pleasurable ease, well-being, and contentment.
4. Solace in time of grief or fear.
5. Help; assistance.
"Instruction"
1. The act, practice or profession of instructing.
2. a. Imparted knowledge.
b. An imparted or acquired item of knowledge; a lesson.
3. a. An authoritative direction to be obeyed; an order.
"Guidance"
1. One definition of guidance is counseling, such as that provided for students seeking advice about vocational and educational matters.
"Counsel"
1. The act of exchanging opinions and ideas; consultation.
2. Advice or guidance, especially as solicited from a knowledgeable person.
3. A plan of action.
4. Private, guarded thoughts or opinions.
5. A lawyer or group of lawyers giving legal advice and especially conducting a case in court.
"Training"
1. To coach in or accustom to a mode of behavioral performance.
2. To make proficient with specialized instruction and practice.
"Support"
The term "support" has many meanings.
1. To bear the weight of, especially from below.
2. To hold in position so as to keep from falling, sinking, or slipping.
3. To be capable of bearing; withstand.
4. To keep from weakening or failing; strengthen.
5. To provide for or maintain, by supplying with many necessities.
6. Maintenance, as of a family, with the necessities of life.
It is good practice to discuss these factors individually, rather than in a group, with jurors. In order for a jury to assess the value of each factor lost, they should clearly understand what it means and how it specifically relates to the case.
It is not enough to simply define the damages to which one is entitled in a wrongful death case, we must find ways to motivate a jury to seriously consider and award those specific damages.
In order to motivate a jury to consider such damages at the end of trial, the trial itself must contain evidence and testimony that support the damage factors. Therefore, there should be testimony or anecdotes of how the defendant trained, counseled, supported and guided, etc. Making the harms visible is very important. After all, a picture is worth 1,000 words. The more personal and compelling the support for the factors, the more likely the jury will understand and compensate for the loss. The lesson to be learned is that in order to increase non-economic damages, we must spend more time building the foundation for those damages throughout the case.
II. Wentling
I believe that in this era of tort reform and non-economic damage caps, the very definition of the term "services" provides a reasonable argument that services could be and should be considered an economic loss rather than a non-economic damage factor.
Now may be the time to appeal to Missouri courts to expand the definition and scope of economic damages as the Kansas Supreme Court did in Wentling v. Medical Anesthesia Services, P.A., 701 P. 2d 939 (Kan. 1985).
In Wentling, the plaintiff husband, Rocky A. Wentling, brought a wrongful death action on behalf of himself and his two children based on the defendant's malpractice in improperly administering anesthesia to his decedent wife. At trial, plaintiff offered a damage instruction that read, in pertinent part:
Your verdict must be for the plaintiffs, and two types of damages shall be allowed as follows:
Limited Damages: Limited damages include mental anguish, suffering, bereavement, loss of society, and loss of companionship... For these items of damage you may not allow more than $25,000 which is a limit set by the legislature...
Unlimited Damages: There is no legislative limit on the amount you may allow for unlimited damages. This type of damage includes all items listed below:
a. For Rocky Shawn Wentling and Shane Adair Wentling:
1) Loss of services, attention, parental care, advice, protection.
2) Loss of educational, physical, and moral training and guidance.
b. For Rocky A. Wentling:
1) Loss of services, attention, marital care, advice and protection...
"Unlimited damages must relate to a loss of money, or something by which money or something of money value may be acquired."
Id. at 941-942.
The Defendant argued on appeal that the italicized clauses of the "Unlimited Damages" instruction were erroneous because there was "no evidence of pecuniary loss" and, therefore, those items should have been included in the limited damages and capped at $25,000. The Court disagreed.
The Court reviewed the evidence presented at trial concerning loss of services, care and guidance, and specifically made note of testimony regarding the couple's closeness in their marriage, how the decedent cared for the plaintiff during his illnesses and how she helped him in some of his construction jobs. The Court also took notice of how the decedent wife had been deeply involved in the in-home care of the couple's handicapped son.
The plaintiffs also produced an expert economist who testified about the monetary value attached to specific homemaking chores such as dietician, chauffeur, buyer, cook, dishwasher, housecleaner, laundress, nurse, and others. Based on her age and projected time of retirement, he established a monetary value of $586,071.00. Id. at 947. He also testified that there were other elements of loss not included in that figure. Although he could not place a specific dollar figure on such elements as moral training, social training, educational assistance, a mother's role as nurturer and counselor, companionship and services to her husband, these elements, nonetheless had real economic value insofar as they contribute to a person's welfare, ability to mature, and obtain productive employment in society. Id.
In considering the conflicting positions of the parties, the Court posed this question: "Is the inability of plaintiff and his expert witness to translate the loss of services, care and guidance into a specific monetary figure fatal under McCart to plaintiffs' recovery? We think not." Id. at 948. They found that plaintiff had satisfied his burden of proof by showing the nature and extent of the losses, and "the triers of fact are presumed to be capable of converting the losses into monetary equivalents on the basis of their own experience." Id. (Emphasis added.)
To hold otherwise would allow the defendant tortfeasor a virtual windfall simply because these losses are not capable of precise measurement. In addition there is really no serious contention that the care, guidance and services of a spouse and parent lack monetary value.
Id.
Wentling may offer a blueprint for expanding the definition of economic damages in a wrongful death case in Missouri. The ability to make this expansion is especially critical in medical malpractice and nursing home negligence wrongful death cases where non-economic losses are capped.
III. Focus Groups
We use focus groups to help us evaluate all of our significant cases. We usually set aside an entire Saturday and do two (2) separate focus groups - one in the morning and one in the afternoon. We use the afternoon session to make adjustments and re-frame arguments, positions, and exhibits based on comments from the morning session.
In a recent focus group held to help us evaluate a wrongful death case in which radiologists failed to diagnose breast cancer, only two (2) of the twelve members of the morning session were willing to compensate the surviving husband and adult son for non-economic harm and losses. Even at that, the two participants who were willing to do so were only willing to consider amounts averaging $87,500.
After reviewing the comments of the morning group, however, we re-framed some of our arguments for the afternoon session. The corrections produced improved results wherein six (6) of the ten participants were willing to include money for non-economic harms ranging from $417,468 to $1,000,000 with a median amount of $158,734, and an average amount of $389,078. Of the six afternoon participants who were willing to include money for non-economic harms, one decided that $300,000 was appropriate, two decided on $500,000, and one decided on $1,000,000.
In another recent focus group regarding the death of an elderly man who, prior to his death, operated the family business, the 11 participants in the session were unable to agree on percentages of fault attributable to the three defendants or any element of damages. Adjustments were made, however, and the afternoon session was able to both allocate fault and decide on damages.
When considering damages, the afternoon group was concerned that any amount that it determined would be sufficient to make the defendant hospital "turn around and look at the facts." They were also concerned that a large verdict against the defendant doctor might negatively affect the defendant doctor's insurance and make it impossible for him to practice in Missouri. The group settled on $1,000,000 for medical expenses, $500,000 for lost income ("because he's 76-years-old") and $1,000,000 for "pain and suffering," despite the fact that the term "pain and suffering" had not been used at any time during the focus group.
We attribute the difference between the morning and afternoon results to increased focus on damages generally and non-economic damages specifically. We spent more time defining the losses and offered more anecdotal and testimonial evidence of how the decedent's death affected the survivors. Some of the comments by the afternoon group offered proof that our strategy had the desired effect. They described him as:
- Family man;
- Loved by family;
- Great father and husband;
- Kind;
- Community conscious;
- Compassionate;
- Hard working;
- Self-made;
- Community advisor;
- Intelligent; and
- Involved.
Some of these comments were based on photographs showing him in various settings - playing with his young children; meeting with community leaders and acting as best man for his son's wedding while he was in the hospital. We also liberally added anecdotes from depositions that attested to the decedent's love of family, support of friends, and community involvement.
III. Ball
I would highly recommend David Ball on Damages, a Plaintiffs' Attorneys' Guide for Personal Injury and Wrongful Death Cases as required reading for anyone who seriously wants to examine this issue. In his far-ranging discussion, Ball offers a multitude of suggestions about how to weave the discussion of money and damages into every aspect of trial from Voir Dire to Closing Argument. Although some of his theories are too expansive for this paper, some are well worth mentioning in this context.
Ball argues that there are four basic principles of damages to shape juror decisions about money damages:
1. Harm (degree - the greater the harm, the higher the sum);
2. Worthwhileness (of money);
3. Jurors job (to fix, help, and make up for); and
4. Time (proportion spent on harm and money vs. that spent on liability.)
Ball also argues that the case is about whatever you spend the most time talking about. Therefore, if you want the jury to consider big damages, you must spend a significant portion of the trial talking about damages. He further argues that defense attorneys want to spend minimal time talking about harm and money and concentrate on liability instead. If we fall into the pattern of concentrating on liability, we make the case about liability.
The John Wayne Factor
I believe jurors pay homage to John Wayne because nobody likes a whiner. John Wayne never whined! Even if he was mortally wounded, the most he would ever say about his injuries is, "Shucks ma'am, it's just a flesh wound." We translate this factor into courtroom action by having others talk about the harms and losses caused by the decedent's injury and ultimate demise. We use a "Harms List" approach recommended by Ball.
A "Harms List" is a listing of every harm a person suffered and the consequence of that harm. During the trial, we use a large board to list the harms, consequences and fixes, and then we have each witness prepared to testify about some of the harms and consequences they observed. We scour the medical records for harms, consequences and fixes, and then have the treating physician, nurses, etc., testify that indeed, what they documented in the records is true and reflects what they actually observed. As they testify, we write in their names and, where possible, cite to the record where the harms are documented.
The advantages of a Harms List are that it sits in front of the jury for extended periods of time during the trial and the jury hears and sees all of the harms the party suffered as a result of the injury from people they generally find credible. The list is then readily available for use during Closing and helps greatly to focus the jurors on the issue of damages.
Ball discusses at length juror motivations for giving or not giving. Some jurors are motivated to give in order to:
- Fix;
- Help;
- Make up for;
- Express anger;
- Make a social statement;
- Make a defendant face responsibility;
- Take care of the likable person(s); and,
- Reward persistence.
Focus Group comments can be used to tie into the appropriate motivations in ways that may resonate with the jury.
Other jurors may be motivated not to give, according to Ball, in order to:
- Stop high verdicts;
- Avoid criticism;
- Because they fear plaintiff will not use it as intended;
- Because the purpose of the money is unclear;
- Because the situation appears hopeless;
- Avoid making the lawyer or the plaintiff(s) rich; and
- Keep insurance rates down.
Neither list above is a complete summary of Ball's theories, but you get the idea.
In short, Ball makes several arguments worth mentioning - that we should change our language ("harm" not "pain and suffering" and never "award"); understand what motivates jurors to both give and refuse to give; and, how to empower the jurors to do the right thing. His arguments are sensible, logical and doable.
CONCLUSION
The search for fair and adequate damages need not be done in the dark. Torches of innovation, definition, and understanding can light the way to non-economic damages in wrongful death cases.
