YearInReview_2011_Layout 5 1/12/12 9:22 AM Page 10 The Effects of Grief and Sorrow DAMAGES IN ILLINOIS WRONGFUL DEATH CASES By Steven M. Levin and Patricia L. Gifford Levin & Perconti, Chicago or over 100 years, families that When the changes were first made, So what exactly are jurors able to have lost loved ones due to many defense attorneys argued that the consider under the new law? Fnegligence were unable to recover new categories of damages would have for the grief and sorrow associated with little effect on jury verdicts. They argued Grief has been defined as the reaction to their loss. Unfortunately, they were that juries had essentially been awarding a loss, which can and usually does have limited to recovering only “pecuniary these damages under the eight cognitive, behavioral, physical and mental loss,” which means a loss relating to categories of “loss of society” that were health symptoms. Emotional reactions to money. While that pecuniary loss allowable at the time. Given this, some grief can include guilt, anger, anxiety, included loss of society — loss of the felt the change would have little impact sadness and despair. Physical benefits of love, affection, care, on verdicts. Plaintiff’s attorneys manifestations of grief can include companionship, comfort, guidance, and perceived the amendment as a victory sleeping problems, changes in appetite, protection — evidence of the survivors’ for families who had lost loved ones due physical ailments or illness. Moreover, grief was inadmissible. In fact, IPI 31.07 to negligence and whose grief and although everyone grieves differently, specifically stated that in wrongful death sorrow, which was often substantial, had research indicates and experts generally actions, jurors were not to consider the been unrecognized for over a century. agree that the way a person dies plays a “grief or sorrow for the widow and next role in the grieving process. The impact of of kin” in determining any pecuniary loss. The actual effect of this new category of grief depends on various factors including damages on jury verdicts is still to be the predictability of the loss, the Since 1853, when the Wrongful Death determined. Although the change came preventability of the loss and the degree Act was enacted, this was the law. about four years ago, these cases are just of personal suffering. For example, if a Defense attorneys consistently now coming to trial. loved one dies of old age or from a reminded the jury of this rule. Defense “natural” progression of a disease, the attorneys would begin the process in voir One change is certain. Verdict forms will death is expected in some ways. In those dire by asking the jury, “Can you be now contain a separate line item for circumstances, people have a chance to impartial and not consider the plaintiff’s “grief, sorrow and mental anguish.” This come to terms with the loved one’s sadness over this loss?” And then in opens the door for plaintiff’s attorneys impending death, which often helps the closing arguments, defense attorneys to demonstrate not only the loss of grieving process. Those who suffered the would reiterate to them, “Remember, society as a result of the loved one’s loss feel as though they had time to this case is not about the family’s death, but also to explain the harm prepare. If, however, a loved one dies sadness over this loss.” Fortunately, this suffered as a result of the actual grief, from a sudden, unexpected or all changed in May 2007. sorrow and mental anguish experienced. preventable death, the grieving process The change not only affects what can be much more intense and prolonged. Illinois is now in alignment with 22 plaintiff’s attorneys can argue, but All of this information is now relevant to other states. The 2007 amendment to perhaps even more importantly, it affects a jury’s assessment of damages. the Act allows a jury to award damages what defense attorney cannot argue. as a result of a negligent death, Defense attorneys can no longer By definition, in a claim brought under including “damages for grief, sorrow constantly remind the jury that they the wrongful death action, the loss was and mental suffering, to the surviving must not take into account the plaintiff’s at least preventable and most times spouse and next of kin of such sadness and sorrow over their unpredictable, which may have a deceased person.” negligently caused loss. substantial impact on the grieving 10 Year in Review | 2011 YearInReview_2011_Layout 5 1/12/12 9:22 AM Page 11 process. Furthermore, while grief, sorrow ages of the parent and the child. to retain psychologists or psychiatrists and mental anguish can be explained to However, in cases involving the elderly, to evaluate the next of kin’s grieving a jury through family members’ own also non-wage earners, life expectancy of process who can then testify at trial as testimony, this “new” category of the parent is generally shorter due to the to the impact the loss had on those left damages also opens an entirely new parent’s age or medical conditions so behind is a consideration that should category of potential expert testimony. loss of society may be less. In such a case, take place in the early stages of grief, sorrow and mental anguish may be litigation. In addition, just as defense Expert testimony from psychiatrists, the primary category of damages. attorneys repeatedly reminded the jury psychologists, counselors and even of what the case was not about before thanatologists (experts in death, dying In nursing home cases, for example, this change, at trial plaintiff’s attorneys and bereavement) may now play an family members usually struggle with the will need to consistently remind the jury important role in helping explain to a initial decision to place their loved one in that in addition to the other jury what impact the defendant’s a nursing home. The decision often considerations and categories of conduct played in the grieving process riddles family members with guilt damages, this case is about the sadness, and mental anguish suffered by those despite that medical necessity dictated the loss, the grieving and the mental left behind. Tools such as the Brief that the loved one needed 24-hour care, suffering of the next of kin. Symptom Inventory (BSI), which which the family members simply could measures various symptoms including not provide. When negligence on the It is too early to quantify the effect, if depression, anxiety, hostility and part of nursing home and/or staff then any, that grief and sorrow will have on cognitive dysfunction, may now play an leads to the death of the loved one, the jury verdicts. Whatever the impact, the important role in helping to explain how family members’ grieving process is recognition of grief, sorrow and mental surviving family members’ grief and intensified by this pre-existing guilt. In anguish as compensable areas of damages mental suffering is different from those these cases, there is simply no way to in wrongful death claims allows the jury who have not suffered a loss as a result fully and fairly compensate the family to more fully and fairly compensate of negligence. for the loss, aside from considering the family members for the death of a loved grief and sorrow experienced as a result one due to negligence. I In some cases, particularly those of the defendant’s negligence. involving non-wage earners, damages as a result of grief, sorrow and mental In order for plaintiffs to finally receive anguish are the primary damages. When full and fair compensation in light of the a parent loses a child — although a non- legislature’s long-awaited recognition of wage earner — in addition to the this category of damages, plaintiff’s substantial grief and sorrow suffered, the attorneys will need to rethink how they loss of society suffered can be approach wrongful death cases. This considerable. Loss of society is measured process will need to begin long before in part by the life expectancy of both the trial. Plaintiff’s attorneys will need to survivor and the decedent. The parent evaluate the circumstances of each has lost the society, companionship, love wrongful death case to determine and affection for potentially many years, whether the case may warrant retaining possibly decades, depending upon the an expert on grief and sorrow. Whether Year in Review | 2011 11.