1. Wrongful Death Lawsuits o Brought by survivors of the decedent on their own behalf seeking damages representing survivors’ losses as a result of decedent’s death o Heavily regulated by statute – e.g., Mo. Rev. Stat. 537.080 & 537.090 o What kinds of losses can a wrongful death P recover? o Original rule – pecuniary/economic losses only o Medical/funeral expenses, loss of support (what decedent earned less what she would have spent on herself) o Most states now allow at least recovery of pecuniary losses & loss of services o Loss of services = training, nurture, education, counsel, housework, etc.

2. Additional possible recoveries for wrongful death depending on the state: Loss of society – a slight majority of states also allow ▫ Loss of society = loss of companionship, comfort, attention, love … ▫ Note Missouri (like many states) – loss of positive attributes only ▫ How should we measure loss of society?

3. More additional possible recoveries for wrongful death depending on the state: Loss of inheritance – some states allow recovery here too ▫ Loss of inheritance = the amount of $ P can show decedent’s estate would have accumulated over and above the value of financial support ▫ P must prove more than a mere expectancy of inheriting ▫ Must show “probably” would have inherited from decedent and evidence from which amount of inheritance can be calculated ▫ What kind of evidence?

4. Hedonic & Punitive Damages w/ Wrongful Death Hedonic damages o Damages allowing survivor to recover for value of decedent’s loss of life – i.e., recovery for intrinsic value of decedent’s life itself o General rule: Not available in wrongful death actions o Compare recovery of “hedonic” (aka “loss of enjoyment of life”) damages in personal injury context Punitive Damages o Jurisdictions split as to whether punitive damages are available in wrongful death actions o Missouri – judges have read the statute to allow punitive damages

5. The Tort Reform Movement – additional issues in limiting rightful position Earlier we saw that damages that could be (relatively) easily measured could also be limited: ◦Liquidated damages/limited remedies clauses, judicial doctrines of offset and avoidable consequences … ◦Even so, could still conceive of P’s position after implementation of these doctrines as “P’s rightful position” With personal injury and wrongful death damages, limitations on damages usually are statutory (although offset/avoidable consequences can apply here too) ◦To what extent do these statutes raise problems? ◦What pushes legislatures to enact these limits?

6. Arbino – the statute & the arguments Ohio law limited all “non-economic” (pain & suffering) damages to the greater of $250,000 or 3X the economic damages up to a maximum of $350,000 per person or $500,000 per occurrence ◦Economic damages were not limited ◦Limits on non-economic damages did not apply to severe injuries Why would states limit awards of non-economic damages? Did the limits raise problems – constitutional or otherwise – as the plaintiff argued in Arbino? ◦If you believe the limits are okay, is there a point at which the caps would be too low – i.e., if the non-economic damage caps were set at $25,000 or $100 and there was no exception for severe injuries? Or if ALL damages were capped?

7. Missouri Medical Malpractice Statute Mo. Rev. Stat. 538.210 ◦1. In any action against a health care provider for damages for personal injury or death arising out of the rendering of or the failure to render health care services, no plaintiff shall recover more than [$350,000] dollars for noneconomic damages irrespective of the number of defendants. … ◦3. In any action against a health care provider for damages for personal injury or death arising out of the rendering of or the failure to render health care services, where the trier of fact is a jury, such jury shall not be instructed by the court with respect to the limitation on an award of noneconomic damages, nor shall counsel for any party or any person providing testimony during such proceeding in any way inform the jury or potential jurors of such limitation.

8. Fate of Sec. 538.210 Missouri SCT found Sec. 538.210 to be an unconstitutional infringement of the right to a jury trial under Missouri Constitution – Watts v. Cox Medical Ctrs., 376 SW3d 633 (2012) Mo Const. Art. I, Sec. 22(a) – Right to a jury trial as hereby enjoyed shall be inviolate. ◦MO SCT interprets this as meaning the right to a jury as it was understood when the MO Constitution was adopted in 1820

9. Tort Reform Proposals & Remedies Most common proposals for tort reform take the form of those listed at pp. 128-29 n.1. ◦Most of these proposals are remedial in nature. ◦Why limit remedies as opposed to other aspects of the legal system that are problematic? Who is likely to bear the result of those cost- savings the most?

10. Tort Reform, Statutory Limits & the Collateral Source Rule Common law rule that holds: ◦P may recover damages that include amounts for which P has already received compensation from sources independent of and collateral to the defendant. Limits on collateral source rule have been a prime target of tort reform battles. ◦See NY statute’s mandatory offset for collateral source payments in personal injury, property injury or wrongful death cases (Oden) Reasoning for such statutory limits: ◦P’s shouldn’t be allowed to recover twice for their injury – allowing damages & collateral sources is double recovery Judges don’t often find such limits unconstitutional (unlike the situations in Arbino). But they can read statutory limits on collateral source pretty narrowly. ◦Note how the Oden court parses NY statute to see which of the benefits sources is or is not an offsetting collateral source

11. Damages for Dignitary Torts What is a dignitary tort? ◦Torts that assault or impair our dignity but don’t necessarily cause physical or pecuniary harm. ◦Examples: Assault, Defamation, False Imprisonment, IIED, NIED, Malicious prosecution, Invasion of privacy ◦As with pain & suffering damages, difficult valuation issues arise Levka v. City of Chicago ◦P sued for emotional distress resulting from illegal search after misdemeanor arrest. ◦Awarded $50,000 for emotional distress but 7th Circuit remits to $25,000.

12. What could Levka’s attorney have done differently to convince the appellate court of her emotional distress? Focus on plaintiff’s harm ◦Emphasize particular frailty ◦Reframe inferences court drew from evidence ◦Bolster psychological evidence Focus on defendant’s conduct ◦Try to frame it as more outrageous than court characterized it