Loss of Consortium

www.plaintiffmagazine.com APRIL 2017

Loss of consortium The one claim you must discuss with your clients, but may strategically choose not to maintain through trial BY STEVEN LIPSCOMB primary injury claim. Those approaches and the strategic and practical conse - can have devastating consequences for quences bringing it can have. Thus, AND AN AMSON I S the clients’ case or the lawyer. although the claim may be unique, there In this article, we explore the basis are a few, general considerations lawyers By their very nature, loss-of-consor - for loss-of-consortium claims and the can use to guide their analysis and recom - tium claims are unique: They depend on strategic and practical considerations mendations about whether to bring such the specifics of each marriage before and we believe lawyers should apply to any claims. after the injuries from which they arise. potential loss-of-consortium claim. While What is a loss-of-consortium But that is not to say that they are rare. it can oftentimes be very valuable for the claim? Indeed, nearly every personal injury to a client, in our view, lawyers should take a married plaintiff gives rise to a potential hard look at the claim from the outset of Loss of consortium is a claim that loss-of-consortium claim held by the the case to determine whether its benefits can be brought by the spouse of a person spouse. All too often, however, loss-of- outweigh its risks. Lawyers should also who was injured by the wrongful conduct consortium claims are either overlooked make it their practice to have an upfront of a third party. In California, the cause or handled as afterthoughts to the discussion with clients about the claim of action arises when a third party

intentionally or negligently injures the impaired, there is no requirement that money a detriment for which monetary plaintiff’s spouse such that the plaintiff the injured plaintiff suffer a permanent compensation cannot be ascertained with no longer enjoys the injured spouse’s or catastrophic injury for this claim to be any demonstrable or repeatable accuracy. conjugal society, companionship, and sex - actionable for his or her spouse. Instead, (Beagle v. Vasold (1966) 65 Cal.2d 166, ual relations. ( Rodriguez v. Bethlehem Steel where the tortious act committed upon 172.) There is simply no fixed standard Corp. (1974) 12 Cal.3d 382, 408.) In lay - the injured spouse is verifiable and harm or measuring stick to determine the men’s terms, it means that a spouse can to the uninjured spouse is foreseeable, amount of damages that are recoverable bring a separate claim against the third the uninjured spouse is entitled to re - for this claim, save for statutory limita - party that injured his or her spouse if the cover for consequential damages suf - tions like MICRA. injury from the underlying incident fered from a third party’s wrongful act, Unsurprisingly, the largest awards caused a “disruption” or harm to the even though the injury to the spouse for loss-of-consortium claims stem from marriage. often results in emotional rather than tragic circumstances where the spouse’s Loss of consortium has also been re - physical injury. injury is permanent or completely alters ferred to as a loss of “the noneconomic the marital relationship. A review of re - What damages are aspects of the marriage relation, includ - recoverable? cent jury verdicts demonstrates as much. ing conjugal society, comfort, affection, For example, in late 2016 a downtown and companionship.” ( Deshotel v. Atchison, Pursuant to CACI Instruction No. Los Angeles jury awarded $4 million in T. & S. F. Ry. Co. (1958) 50 Cal.2d 664, 3920, the spouse of the injured plaintiff past and future loss of consortium to a 665, overruled on other grounds in Ro - may recover damages to reasonably com - spouse whose husband of over 50 years driguez , supra , 12 Cal.3d at 408.) There pensate for the past and future loss of suffered an injury that dramatically are four elements to this claim: (1) a the injured plaintiff’s companionship changed his active lifestyle. Notably, the valid and lawful marriage between the and services. These damages include: loss-of-consortium award was higher spouse and the injured spouse at the (1.) The loss of love, companionship, than the total damages awarded to the time of the injury; (2) a tortious injury to comfort, care, assistance, protection, husband for the primary injury, al - one spouse; (3) loss of consortium suf - affection, society, and moral support; though that discrepancy may be attrib - fered by the non-injured spouse; and (4) and utable to the defense’s successful the loss was proximately caused by the (2.) The loss of the enjoyment of motions in limine to limit the categories defendant’s act. ( Vanhooser v. Superior sexual relations or the ability to have of damage the husband could seek. Court (2012) 206 Cal.App.4th 921, 927.) children. In another instance, in April 2016 an Early California case law doubted A loss-of-consortium plaintiff may re - Alameda County jury awarded $1 million the existence of such a claim. But in cover for harm he or she has suffered to in future loss-of-consortium damages to a Rodriguez , the California Supreme Court date and for harm he or she is reasonably spouse whose wife suffered a significant found marriage to be a rational interest certain to suffer in the future. In essence, and life-altering traumatic brain injury in worthy of protection, distinguishing from the consortium plaintiff is entitled to re - a car collision. Those verdicts are similar the disapproved action for “alienation of cover damages for the duration of the in - to a case my firm handled in which the affections.” In the Court’s view, loss of capacity of his or her spouse giving rise to jury awarded over $1 million to the wife consortium did not depend upon intent the loss of consortium; and in cases of of a client that suffered quadriplegia from to interfere with the marriage, but rather permanent injury, the plaintiff may re - a rollover accident her loss-of-consortium upon the intimate and predictable conse - cover damage to his or her marital rela - claim. quences of serious injury to a married tion for the remainder of his or her Navigating a loss-of-consortium married life – that is, from the date of his person. claim Observing that “[t]he loss of com - or her spouse’s injury to the end of the panionship, emotional support, love, injured spouse’s expected lifespan, as With that background in mind, we felicity and sexual relations are real in - measured from just prior to the spouse’s turn to the practical and strategic con - juries,” the Court concluded that “[t]hose injury. ( Truhitte v. French Hospital (1982) siderations we believe attorneys should losses were immediate and consequential 128 Cal.App.3d 332, 352-353.) apply to every potential loss-of-consor - rather than remote and unforeseeable.” Like other general damages, no tium claim. First, attorneys should be (Rodriguez , at pp. 400-401.) Further, the method is available to the jury by which it aware of the potential consequences of Court held that although the spouse’s can objectively evaluate such damages, overlooking or failing to fully discuss the injury must clearly be severe enough to and no witness may express his or her claim with married clients at the outset raise the inference that conjugal society subjective opinion on the matter. Thus, of the case. Second, attorneys should is more than trivially or temporarily a jury is asked to evaluate in terms of continuously evaluate the merits of the

loss-of-consortium claim – both pre-fil - failing to properly advise the clients of vi - Letting your clients know what ing and during litigation – and should able claims. In Meighan v. Shore (1995) 34 they can expect ensure that both they and their clients Cal.App.4th 1025, 1029, the court held understand the benefits and risks of that an attorney representing a husband A primary consideration for assert - maintaining the claim through trial. Fi - in a medical malpractice action had a ing a loss-of-consortium claim is the nally, attorneys should consider the duty to inform the husband and his wife spouse’s willingness to become a party practical question of what evidence they of the existence of a possible action by and subject to invasive and personal dis - will present to prove the loss-of-consor - the wife for loss of consortium. The court covery. As noted above, a client who as - tium claim. reasoned that the consortium tort was so serts a loss-of-consortium claim should closely interwoven with the personal in - understand exactly what he or she is Failure to discuss the claim jury action that the wife and her husband signing up for when bringing the claim. up-front can have consequences were in privity with respect to it, and the Since loss of consortium is based, In every personal-injury case where attorney’s conduct had a direct effect on among other things, in the sexual aspect your client is married and has sustained the wife’s injury, and the imposition of a of the marital relationship, alleging the “serious” personal injuries, a lawyer duty would prevent future harm by dis - claim opens the door to wide-ranging should always consider bringing a claim couraging the loss of rights by an unin - and invasive discovery of the couple’s for loss of consortium along with the in - formed failure to act, and recognition of private, intimate life. While the initial jured spouse’s injury claims. If possible, a liability would not impose an undue bur - salvos are usually limited to your clients, lawyer should discuss this claim during den on the legal profession. defendants may try to expand the dis - the first consultation with the client and The decision in Meighan is an covery to friends and family members, his or her spouse. Since every marriage is excellent example of why all attorneys all of which can be potentially embar - different, and the impact on the unin - representing an injured, married client rassing or humiliating to your clients. jured spouse and disruption to the mar - should properly advise his or her injured Without forewarning, that discovery can riage is different in every case, the client and their spouse of the existence shock your clients and, in extreme cases, elements of this claim (as set forth above) and elements of a loss-of-consortium discourage them from proceeding alto - should at least be summarized to your claim before the concurrent statute of gether – which, of course, is a boon to client and his or her spouse so they both limitations runs. In fact, should you choose defendants. Properly preparing clients understand from the outset that this not to bring a loss-of-consortium claim on in advance about the invasive discovery claim may be brought with the injured behalf of the spouse of a seriously injured they can expect can dramatically reduce spouse’s personal injury claims. plaintiff, you should always seek your the chance that a client feels blindsided. An attorney should also be on the clients’ approval and confirm the decision That said, an attorney should not lookout for rare cases which could raise a in writing, even if you believe that the presume that all discovery into clients’ potential or actual conflict, such as where loss-of-consortium claim has no merit. sex life and private, intimate relations is the marital union was already dissolving Meighan may suggest that the best on the table and forego any efforts to po - before the incident, or the uninjured practice is to simply plead a loss-of-con - lice the clients’ privacy. We have observed spouse clearly abandoned his or her mar - sortium claim on behalf of any injured that defendants are aggressively expand - ital commitment to love, honor, care for, party’s spouse. While that one-size-fits- ing the bounds of “sexual relations” dis - and support the injured spouse following all approach may minimize the risk of covery in what appears to be an effort to the incident. Additionally, the conse - failing to include a colorable claim, it intimidate clients to drop loss-of-consor - quences of alleging a loss-of-consortium overlooks important strategic consider - tium claims from embarrassment. That claim – including, as discussed below, the ations and runs the risk of alienating includes discovery asking detailed ques - invasive, personal discovery, the transfor - clients unprepared for the reality of as - tions about the manner and specifics of mation of the spouse from witness to serting such a claim. Instead, attorneys clients’ sex life before and after the in - party, and the potential impact on the should, where possible, thoroughly vet juries. While every case will be different, injured spouse’s primary claim – should each loss-of-consortium claim before as - we advise strongly protecting your clients’ also be addressed at the earliest possible serting it in the complaint. Moreover, privacy rights to the extent possible, par - time. attorneys should strongly consider the ticularly when the discovery is so detailed Failing to have this discussion with strategic implications of the claim prior that it appears to serve no purpose other clients can have consequences for an at - to presenting it at trial, and should than to humiliate and bully your clients torney. In addition to missing potential have an informed discussion of the up - into dropping the claim. However, the conflicts, an attorney may face liability for side and risks with the clients. clients should understand that your

ability to forestall such discovery is lim - disabling to the injured spouse. Some ju - restraining order. That kind of impeach - ited, and should assume that they will be rors may be unwilling to sympathize with, ment can leave both clients’ credibility – compelled to divulge private, intimate and compensate, an uninjured spouse and the primary injury claim – in tatters. details about their relationship should when the injured spouse is already asking they pursue loss-of-consortium damages. the same jury to award a substantial Early discussion with clients is essential Strategic considerations and amount of money to compensate for his potential jury predispositions or her personal injuries. Those same ju - rors may view the marital vow of “in sick - Thus, before asserting a loss-of-con - There are also important strategic ness and in health” as a spouse’s sortium claim or presenting it at trial, a considerations to bear in mind for pre - unequivocal obligation to love, care for, lawyer should have a detailed and mean - senting a loss-of-consortium claim to a and support the other spouse (following ingful discussion with the clients about jury. Those considerations should not an injury or decline in health) without the strengths and risks of the loss-of- be limited to the loss-of-consortium compensation from others. That percep - consortium claim along with a recom - claim alone, but also the potential im - tion can be particularly strong where the mendation about whether to maintain pacts trying it to a jury may have on the spouse’s injury only temporarily impacts the claim through trial. It is important to presentation of the injured spouse’s the marriage or has a small effect on the keep in mind that, even where the facts claim. Although not completely deter - marital relationship. In those circum - counsel against maintaining the claim, minative, the nature of the spouse’s in - stances, a concern arises that the consor - there is a danger of minimizing the un - jury will strongly inform the advisability tium plaintiff may be perceived as injured spouse’s claim and harming the of asserting a loss-of-consortium claim “double dipping” alongside the injured relationship with the clients. Framing or maintaining it through trial. Obvi - spouse’s recovery or advantageously using the discussion properly avoids a percep - ously, because a loss-of-consortium the spouse’s injury to enhance the cou - tion by your clients that you “don’t care” claim is based on a change in the ple’s recovery. about their injuries or “don’t believe” marital relationship, it is far more them. Finding the skeletons in the likely that a serious and permanent It is therefore helpful to provide the closet injury will affect the marriage than a overall strategic picture to the clients temporary or discrete one. Of course, those general concerns while explaining the general risks – such Generally speaking, absent some ex - should not scare off a loss-of-consortium as potential hostility to a small or hard- traordinary circumstances, a loss-of-con - claim grounded in solid facts. But no to-define claim – or specific ones – like a sortium claim is almost always advisable matter the nature of the underlying in - rocky relationship prior to the injuries. where the injured spouse is permanently jury, understanding the clients’ marriage Clearly, in instances where the clients’ or completely disabled. The analysis be - prior to the injuries is an essential consid - marriage was impaired before the in - comes much harder when the underlying eration in bringing the claim and pre - juries, or where the client’s injuries have injury is temporary or only impacts the senting it to a jury. A lawyer should know not substantially affected the marriage, marital relationship in a small or tran - whether the client and spouse have a you may wish to counsel the clients sient way. Again, while claims based upon close marriage, whether they have ever against maintaining the claim. In other a temporary or discrete injury may be col - lived separately, filed for divorce or legal instances, however, an attorney may de - orable in a legal sense, a lawyer should separation, or attended marital counsel - termine that even a small loss-of-consor - consider how a jury may view the claim – ing in the recent past. That investigation tium claim makes sense to carry through and how their view may affect the presen - should not just include the clients, but to trial – perhaps the client is a great tation of the overall case. That requires also family and close friends. Failing to witness, or the effect on the marriage, asking hard, specific questions of clients take those steps prior to presenting the although discrete, is something the about how the injured spouse’s condition claim at trial can lead to a nightmare sce - lawyer believes the jury will understand affected the marriage in a tangible and nario: Impeachment of your clients on and empathize with. explainable manner. If there are not any the strength of their marriage, which can As we said at the outset, although such effects, or if they are not substantial, destroy the credibility of the entire case. every loss-of-consortium claim is unique, then the claim is likely not worth pursu - Jury verdict reports are littered with in - the strategic considerations that drive ing. stances in which consortium plaintiffs whether to bring them should be consid - A lawyer should also consider jurors’ were forced to drop their claim mid-trial ered in every applicable instance. An at - predispositions toward a loss-of-consor - after a defendant elicited information torney should not be afraid to have a tium claim, particularly where the under - about a damning, pre-injury occurrence tough conversation with his or her clients lying injury is not permanent or wholly like a legal separation or temporary about the viability and potential impact

of a loss-of-consortium claim he or she and the uninjured spouse through the and viability of the claim and consider perceives to be weak or potentially dam - marital relationship. whether it may impact your overall pres - aging to the overall case. Failing to have Notwithstanding, there is still a entation of the case. Although an attor - these conversations or to raise these tricky balance between overselling and ney should not simply decide that a strategic considerations can catch both underselling the consortium claim. An loss-of-consortium claim should not be the attorney and clients unaware at the overarching fear is for the jury to per - asserted without discussion with the time of trial. ceive the uninjured spouse as greedy, clients, you should present a clear recom - bitter, a complainer, or worse, looking mendation to the clients about the claim Presenting the loss-of- for payday and a chance to get out of and should not be afraid to recommend consortium claim at trial the marriage. However, on the other forgoing or dismissing it when the risks If you do maintain your loss-of-con - hand, the jury must truly understand outweigh the potential benefit and the sortium claim through trial, then aware - the nature and extent of the uninjured clients agree in writing. ness of some basic strategy is essential. spouse’s suffering as a result of his or Since the jury or finder of fact is given her spouse’s inability to contribute phys - Steven Lipscomb is a wide latitude in assessing damages for ically, emotionally, and economically to partner at Engstrom, Lip - loss of consortium, it is imperative that the marital union following the inci - scomb and Lack in Los the plaintiffs’ attorney thoroughly under - dent. An attorney must strike a balance Angeles focusing on prod - stand the nature of the loss by the unin - between saying too much and saying too ucts liability, wrongful jured spouse, and properly present the little. While there is no one-size-fits-all death, catastrophic personal claim to the jury. At its core, that requires rule for toeing that line, in our view, the injury cases, complex busi - spending enough time with the clients closer the “loss of consortium” testi - Lipscomb ness litigation, and class ac - and other witnesses to be able to tell the mony is to the underlying injury, the tion cases. He represents “before and after” – which, after all, is more likely it will avoid a negative per - clients in state and federal court and arbitra - precisely what the loss-of-consortium ception from the jury or distract from tion. Mr. Lipscomb may be reached at claim is all about. the primary claim. (310) 552-3800 or [email protected]. In the best case scenario, the loss-of- Conclusion consortium claim will dovetail with the Ian Samson is a partner primary injury claim. Thus, testimony If you are considering bringing a at Engstrom, Lipscomb concerning the injured spouse’s limita - loss-of-consortium claim on behalf of the and Lack in Los Angeles tions – whether from the clients, friends spouse of an injured plaintiff, it is ex - focusing on wrongful death and family, or expert witnesses – will si - tremely important that both spouses and catastrophic injuries, multaneously explain the spouse’s loss of clearly understand that the closeness of complex litigation, and class consortium. In that instance, there is their marital relationship, including their action cases. He represents much less danger that a jury will be dis - sexual relations, will be extensively inves - Samson clients in state and federal tracted from the primary claim or nega - tigated, and will likely be called into ques - court and arbitration. tively view the consortium claim. Instead, tion by the defendant’s lawyer should Mr. Samson may be reached at the jury will be able to view the injury’s they choose to bring this claim. Further, (310) 552-3800 or [email protected]. full impact on both the injured spouse you should take a hard look at the merits